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EBA expiry and negotiations

EBA expiry and negotiations

What is an enterprise agreement?

Your enterprise bargaining agreement (EBA) is one of the most important documents of your working life. It is an agreement between the employer and employees, outlining your wages, working conditions, career structure, allowances and entitlements.  EBAs operate with the full force of the law. The entitlements contained in EBAs are legally enforceable and employers may be subject to significant financial penalties if they do not comply with agreements. EBAs are usually negotiated between an employer and the union, representing its members.

My EBA has expired – what are my employment conditions now?

Where an EBA expires it generally remains in place until a new one is negotiated.  The expiry date, which is a feature of every EBA, is a nominal expiry date – so the agreement continues in force until it is either replaced or terminated.  This means that employment conditions and wages remain the same until they are replaced.

How is an EBA negotiated?

Usually the ANMF (Vic Branch) approaches the employer seeking to commence negotiations by providing them with a log of claims either near, on or following the expiry of the agreement. The employer has the right to decide in the first instance whether they will commence negotiations for a new agreement or not.  Where an employer does not wish to commence negotiations for an agreement, the majority of employees in the workplace must show that they wish to commence bargaining for a new agreement.  If this is the case, the Fair Work Commission will issue a majority support determination which compels the employer to commence bargaining.

Where an employer chooses to commence bargaining, negotiations will progress by discussions between the parties on the various claims until an in-principle agreement is reached or the parties are at an impasse.

My employer has asked me to complete a representative nomination form, what do I do?

Prior to the commencement of negotiations, the employer is required to issue a notice of employee representational rights (NERR) to employees covered by the agreement. The NERR is a formal requirement under the Fair Work Act 2009 and explains the employees’ right to be represented by a bargaining representative in respect of the proposed enterprise agreement. This represents the formal commencement of negotiations for a new enterprise agreement.

Members should note that ANMF (Vic Branch) acts as the default bargaining representative for nurses and midwives, and personal care workers in residential aged care. Therefore you do not need to nominate ANMF as your bargaining representative.

How is a log of claims created?

The ANMF considers a variety of matters when drafting a log of claims, including:

  • the resolutions debated and accepted at the Annual Delegates Conference that request the ANMF pursue specific matters on behalf of members
  • ongoing issues the ANMF and members have experienced with accessing and enforcing entitlements in the current agreement (for example improvements on the wording of clauses)
  • feedback from Job Representatives and members within the workplace.

ANMF uses the public sector enterprise agreement as a benchmark for all other agreements.

Will my wages ever increase if negotiations do not proceed?

Employers may provide wage increases to staff outside of enterprise bargaining but there is no obligation on them to do so.  Employers must also pay wages at or above the minimum rates of pay in the applicable award.

Who decides if industrial action should be taken?

Industrial action is a mechanism available to employees and employers during bargaining as a means to progress their claims.  In order for the taking of industrial action to be protected (which ensures that an employer cannot take retributive action against an employee who takes it) members are required to participate in a protected action ballot (a secret ballot) to establish if the majority agree to contemplate taking these measures. Action may only proceed if the majority of members agree that the taking of protected industrial action should be contemplated. For more information related to industrial action read Fair Work Australia’s industrial action fact sheet.