AMA VICDOC Autumn 2024 - Magazine - Page 55
Employer non-compliance
with an enterprise agreement
is a very serious matter
—
3. CONTRACTS
—
The lowest level of the hierarchy is the contract of
employment. Employers and employees routinely
enter into written contracts of employment that set
out their agreement about their respective rights and
obligations in relation to a particular job. If an Award
or enterprise agreement covers the employment, a
contract can include agreed terms and conditions
of employment that are more favourable than the
Award or enterprise agreement. If a contract includes
terms and conditions that are less favourable than
those in the enterprise agreement, those terms are not
enforceable and the enterprise agreement will prevail.
As a simple example, a doctor could have a written
contract with a public hospital that included a lower
rate of pay than they were entitled to under the
enterprise agreement. Despite having signed the
written contract, they would still be legally entitled
to the higher rate under the enterprise agreement
(and could be entitled to claim against the hospital
for underpayment).
MAKING SURE THAT YOU GET
WHAT YOU ARE ENTITLED
TO UNDER THE ENTERPRISE
AGREEMENT
—
Enterprise agreements, especially in the Victorian
public sector, are long and complex legal documents.
Interpretation of the interrelated provisions of an
enterprise agreement is often not straightforward.
If you think you are not being given your correct
entitlements under the enterprise agreement, a very
good option is to seek advice from AMA Victoria.
If, after having sought advice, you are reasonably
sure that your employer is not complying with
the enterprise agreement, your first step should
be to politely make enquires. Hospitals also find
application of enterprise agreements to be less than
straightforward at times, and they can make mistakes.
Not all non-compliance is deliberate, or “wage theft”.
If the issue is not satisfactorily resolved by discussion,
request assistance from AMA Victoria.
Level 9 | 360 Elizabeth Street
Melbourne Victoria 3000
Australia
T: +613 9498 6699
ENFORCING ENTERPRISE
AGREEMENTS
—
Employer non-compliance with an enterprise
agreement is a very serious matter. It is a breach of
the FW Act, and exposes the employer to financial
civil penalties. An employer’s failure to comply with
an enterprise agreement can be dealt with either in
the FWC, or by making an application to the
Federal Court.
Enterprise agreement dispute resolution procedures
enable disputes about employer compliance to be
referred to the FWC. The FWC may have power to
resolve a dispute by arbitration.
To take a dispute to the FWC under such a dispute
resolution procedure, you must be an employee of the
employer at the time the dispute is notified. If you have
been underpaid, for example, but you do not notify
a dispute until after you have left the job, the FWC
cannot deal with the dispute, but you can still enforce
an underpayment claim in a court Underpayment
claims need to be brought in a court within 6 years
from the date when the payment was due.
ENFORCING AN ORDER OF THE FWC
—
If an employer does not comply with an order of
the FWC in dealing with a dispute, only a court has
power to enforce compliance.
The Federal Courts have full power to enforce
enterprise agreements and to impose penalties for
non-compliance.
OTHER CONSIDERATIONS
—
Having an argument with your employer over your
employment entitlements can be very uncomfortable.
While the FW Act contains strong protections for
employees, in practical terms, it is important to
consider the impact it could have on the viability of
the employment relationship to sue your employer for
a contravention of an enterprise agreement, such as
underpayment. Such a step should not be commenced
without obtaining advice that considers all of your
interests holistically.
VI CD O C SU M M ER 2022
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