WITH THE operation of the Building Code 2016 (Building Code) now in full swing, the Fair Work Commission has received an increase in the number of applications for approval of variation of an enterprise agreement. These are predominately applications made to ensure the employer is compliant with the Building Code.
The Fair Work Commission (FWC) has provided the following tips for employers to avoid delays in relation to these types of applications:
Documents to be lodged
The application to vary should include all relevant documents, including:
- The Agreement as varied, which must:
- incorporate all of the variations being made;
- incorporate or attach any undertakings that were made when the agreement was initially approved;
- include any model mandatory terms (i.e. consultation, flexibility) that were taken to be a term of the original approved agreement;
- be a ‘clean’ document – it must not contain any tracked changes or highlighted text.
- A signed Variation containing all of the proposed variations, which must:
- be a separate document, not simply a marked up or tracked changes version of the agreement;
- include all proposed variations to the agreement;
- be signed by both an employer and employee/union representative and include their full name, position and address.
- The following forms:
- Form F23 – Application for approval of variation of an enterprise agreement;
- Form F23A – Employer’s statutory declaration in support of variation of an enterprise agreement, which must be signed and witnessed by an authorised witness;
- Form F23B – Statutory declaration of employee organisation in relation to variation of an enterprise agreement (if a union is covered by the approved agreement) or a confirmation of service to the union.
The FWC will require confirmation of service for each application. AREEA’s consultants are well-versed in all these forms and processes and are on-hand to assist members with completion and lodgement.
Variation Application Assessment
Before approving a variation application, the FWC must be satisfied that the agreement as varied will pass the Better Off Overall Test (BOOT) and meet all content requirements, including those relating to the National Employment Standards (NES).
The assessment of the BOOT and the NES is conducted at the time of lodgement of the application. This means that a FWC Member may raise matters in relation to the agreement that do not arise from the terms being varied, and that were not raised at the time the agreement was initially approved.
Wage rates and conditions of employment in the agreement are reassessed at the time of lodgement of the variation, and are compared against the wage rates applying on that date under the relevant modern award/s.
It is therefore important to conduct a review of the entire agreement to ensure that any deficiencies are addressed as part of the variation. This will avoid delays caused by the FWC seeking an undertaking or the application to vary being refused.
Building Code Compliance
Building Code compliance is a separate process from FWC approval. Employers must apply to the Australian Building and Construction Commission (ABCC) for a Letter of Compliance.
A Code-compliance assessment should be undertaken prior to an application to vary an enterprise agreement being made so as to avoid the risk of having the varied agreement assessed as non-compliant by the ABCC. If changes are subsequently required by the ABCC, the agreement variation process may need to be repeated.
For advice on compliance with the Building Code 2016, variation of an enterprise agreement, or any other enterprise agreement matter, contact an AREEA consultant at your local AREEA office.
