I’ve had a lot of chairlift conversations last season about enterprise bargaining agreements (EBA). Often people haven’t realised that’s what we’re discussing, but I’m always up for a short but meaningful chairlift chat, especially when it helps people to understand the Australian employment environment.
Falls Creek Ski Lifts and our Mt Hotham siblings EBA has expired and so is up for renegotiation. When both mountains were owned by Merlin Entertainment the EBA negotiation only applied to these two alpine resorts. Now Falls & Hotham is owned by Vail Resorts there is an opportunity for Vail Resorts Australia to negotiate a new EBA that encompasses all three of their Australian resorts.
Good faith bargaining is a foundational part of both the employee and employers right to negotiate the terms and conditions under which employees work (including management) and employers engage people to complete said work for payment. As you may have guessed by now, we currently call it Enterprise Bargaining resulting in an Agreement.
I respect the right for unions to advocate for their members to improve wages and conditions. It’s a foundational worker right to engage a bargaining agent to represent you the worker. This doesn’t have to be a trade union, but it often is.
I respect the right for employers to make a profit. No one goes into business thinking ‘I want to break even’. If that’s your goal you’re generally working in the not-for-profit sector.
If you’ve ever glanced at the Fair Work Act or a Modern Award, you’ll notice they refer to employees as “workers”. Why? I honestly don’t know. I think it’s a hangover from a more industrial time when large swathes of metropolitan populations worked in factories.
Many people have asked me ‘what is the difference between the National Employment Standards (NES), a Modern Award and an Agreement’?
The NES are 11 minimum employment entitlements that must be provided to all employees. All employees in the national workplace relations system are covered by the NES regardless of the award, registered agreement or employment contract that applies.
Enterprise agreements and awards both set out wages and conditions of employment. Minimum terms also protect all employees, with or without an agreement or award.
Awards tell employees the terms and conditions of their employment. Most awards cover a whole industry or occupation. Examples are ‘retail industry’ or ‘legal services'. The employee receives the benefits in the award plus other terms the law requires (for example the National Employment Standards). Examples of the terms in an award are:
- wages
- leave
- ordinary hours of work
- overtime
- shift work entitlements.
Enterprise agreements are often similar to awards, but they cover a specific business or businesses. They may also have some terms and conditions that are different from the award, often an improvement. If an agreement applies to an employee, the modern award does not apply even if it covers them.
An employer and 2 or more employees can create an agreement that meets the needs of the business. To make sure this is fair on employees, the Fair Work Commission assess all agreements. They only approve agreements that meet the requirements in the Fair Work Act 2009.
Several years ago, the Fair Work Commission (or its previous iteration) successfully audited the Alpine Award so that it could only apply to organisations that operated a lift. This had a huge impact on the business owners at Falls Creek & in the valley who suddenly found themselves ineligible to engage staff under the Alpine Award. If you want to know why that was problematic, I can write an article on that topic.
During chairlift chats last year, people told me they were worried that Vail Resorts will try and scrape the current wages and salary categories and try and reduce workers entitlement by pushing backward to:
A) Perisher rates,
B) The relevant Industry modern award or
C) the basic National Employment standards (minimum wage)
D). a flat rate of pay no matter how many hours you work or what qualification/certification you hold.
Let’s be frank: people don’t work in the Snowsports industry to become millionaires. It really is a passion driven job. You can earn more housekeeping than you can as a Level 1 Snowsports instructor.
Do my random chairlift chat buddies have anything to worry about regarding being forced to accept pay cuts and lower entitlements? It’s a plausible scenario. I would hope it is not possible unless workers agree to be represented by a corrupt or inexperienced bargaining agent who does not represent the workers best interests and does not negotiate in good faith for the workers they are representing.
The Fair Work Commission requires any negotiated agreement proposed to them for approval to pass the BOOT. “Better Off Overall Test”.
The BOOT requires that each worker is better off overall by entering into the agreement versus the underlying Award; and that the terms of the agreement do not contravene the National Employment Standards (“NES”) contained in the Fait Work Act.
An enterprise agreement that is not a greenfields agreement passes the better off overall test if the Fair Work Commission is satisfied, as at the test time, that each award covered employee, and prospective award covered employee, would be better off overall if the agreement applied than if the relevant modern award applied.
The better off overall test is not applied as a line-by-line analysis. It is a global test requiring consideration of advantages and disadvantages to award covered employees and prospective award covered employees. The application of the better off overall test therefore requires the identification of the terms of an Agreement which are more beneficial to employees when compared to the relevant modern award, and the terms of an Agreement which are less beneficial and then an overall assessment of whether an employee would be better off under the Agreement.
Several chairlift chats asked if the expiration of an EBA gives an employer the right to scrap and reset all employment terms and conditions, include pay scales. In short, no. Agreements continue to operate after their nominal expiry dates until they are replaced or terminated by the Fair Work Commission.
This means that the provisions contained within an old enterprise agreement will continue to apply to the parties covered by the agreement after the nominal expiry date. These provisions are fully enforceable and must be applied, even if the nominal expiry date was several years before.
When an approved agreement continues to operate, the provisions of the National Employment Standards (NES) will apply in circumstances where an entitlement in the agreement is less than that provided for by the NES.
If you’re a worker whose organisation’s EBA has expired or is up for negotiation, you should go to any and all meetings scheduled and get involved. It’s your right. You have a right to ask questions and have the terms and conditions being negotiated explained to you in simple, easy to understand language.
Why am I writing about this when I’m running a retail business this year? My other business is HR Consulting. I don’t want to return to instructing in a few years and find instructing pay rates and entitlements have been eroded. I dislike power imbalances in general. I care about the people I worked within the Snowsports School. I respect the bargaining process and Australia’s Industrial Relations system. When negotiations are done in good faith and both parties are equally informed and knowledgeable about the industrial landscape they’re operating in, the system works pretty well. I could go on.
If your EBA is up for re-negotiation get involved, understand what’s at stake and engage with your union representative. These are your wages and conditions that are being bargained with. Don’t realise too late that it’s your entitlements that may be changing.
Nyree Fiddes
I Dream of Snow & Fiddes HR