Commonwealth Consolidated Regulations Commonwealth Consolidated Regulations(1) A term of a workplace agreement is prohibited content to the extent that it deals with the following:
(a) deductions from the pay or wages of an employee bound by the agreement of trade union membership subscriptions or dues;
(b) the provision of payroll deduction facilities for the subscriptions or dues referred to in paragraph (a);
(c) employees bound by the agreement receiving leave to attend training (however described) provided by a trade union;
(d) employees bound by the agreement receiving paid leave to attend meetings (however described) conducted by or made up of trade union members;
(e) the renegotiation of a workplace agreement;
(f) the rights of an organisation of employers or employees to participate in, or represent an employer or employee bound by the agreement in, the whole or part of a dispute settling procedure, unless the organisation is the representative of the employer's or employee's choice;
(g) the rights of an official of an organisation of employers or employees to enter the premises of the employer bound by the agreement;
(h) restrictions on the engagement of independent contractors and requirements relating to the conditions of their engagement;
(i) restrictions on the engagement of labour hire workers, and requirements relating to the conditions of their engagement, imposed on an entity or person for whom the labour hire worker performs work under a contract with a labour hire agency;
(j) the forgoing of annual leave credited to an employee bound by the agreement for an amount of pay or other benefit otherwise than at the written election of the employee;
(k) the provision of information about employees bound by the agreement to a trade union, or a member acting in a representative capacity, officer, or employee of a trade union, unless provision of that information is required or authorised by law;
(l) the forgoing of paid compassionate leave for an amount of pay or other benefit otherwise than in a manner that would result in a more favourable outcome than the Standard, consistent with these Regulations;
(m) the forgoing of paid personal/carer's leave credited to an employee bound by the agreement for an amount of pay or other benefit otherwise than at the written election of the employee.
Note In these Regulations a reference to an independent contractor is not confined to a natural person (see subsection 4 (2) of the Act).
Terms that encourage or discourage union membership
(2) A term of a workplace agreement is prohibited content to the extent that it:
(a) directly or indirectly requires a person bound by the agreement:
(i) to encourage another person bound by the agreement to become, or remain, a member of an industrial association; or
(ii) to discourage another person bound by the agreement from becoming, or remaining, a member of an industrial association; or
(b) requires a person bound by the agreement to indicate support, or lack of support, for persons bound by the agreement being members of an industrial association.
Terms allowing for industrial action
(3) A term of a workplace agreement is prohibited content to the extent that it permits a person bound by the agreement to engage in or organise industrial action.
Terms dealing with disclosure of details of workplace agreement
(4) A term of a workplace agreement is prohibited content to the extent that it prohibits or restricts disclosure of details of the workplace agreement by a person bound by the agreement.
Terms providing for remedies for unfair dismissal
(5) A term of a workplace agreement is prohibited content to the extent that it confers a right or remedy in relation to the termination of employment of an employee bound by the agreement for a reason that is harsh, unjust or unreasonable.
(6) To avoid doubt, a term is not prohibited content under subregulation (5) to the extent that it provides a process for managing an employee's performance or conduct.
Objectionable provisions
(7) A term of a workplace agreement is prohibited content to the extent that it is an objectionable provision within the meaning of the Act.
Note Section 810 of the Act deals with objectionable provisions.
Term concerning AWA
(8) A term of a workplace agreement is prohibited content to the extent that it directly or indirectly restricts the ability of a person bound by the agreement to offer, negotiate or enter into an AWA.
Terms allowing for penalties
(8A) A term of a workplace agreement is prohibited content to the extent that the term allows for the imposition of a penalty on an employee for breach of a requirement to provide notice or evidence:
(a) for the purpose of substantiating an entitlement to sick leave or carer's leave; or
(b) for the purpose of substantiating a reason for absence from work due to:
(i) an illness, injury or emergency affecting the employee; or
(ii) an illness, injury or emergency affecting a member of the employee's immediate family or household.
Example
Zoe's Adventures Pty Ltd is concerned about the number of its employees who take sick leave on Mondays.
To try to reduce the costs of these absences to its business, Zoe's Adventures would like to include a term in its workplace agreement that requires the employee to provide notice to the office manager of needing to take sick leave the day before taking it, and if the employee does not do so, the employee will not be entitled to 2 hours of paid sick leave for that day.
As the term penalises the employee (by reducing the employee's entitlement to paid sick leave by 2 hours) for not providing notice in accordance with the agreement, this term would be prohibited content.
(8B) A term of a workplace agreement is prohibited content to the extent that the term allows for the imposition of a penalty on an employee for being absent from work due to:
(a) an illness, injury or emergency affecting the employee; or
(b) an illness, injury or emergency affecting a member of the employee's immediate family or household.
Deryk works as a casual waiter at a restaurant that only employs waiters who have 'silver service' training. When one of its waiters is sick, the restaurant is often unable to find a suitable replacement at short notice.
The restaurant proposes to include a term in its workplace agreements so that, if a waiter is unable to make a shift because he or she is sick, the waiter will pay the restaurant $150. The proposed term of the workplace agreement also provides that this amount will be split among the waiters who do work as an extra tip for working a shift with fewer waiters.
As the term would penalise Deryk by requiring him to pay an amount to his employer for not working a shift because he was sick, this term would be prohibited content.
Meaning of terms
(9) In paragraph (1) (i):
"labour hire agency" means an entity or a person who conducts a business that includes the employment or engagement of workers for the purpose of supplying those workers to another entity or person under a contract with that other entity or person.
labour hire worker means a person:
(a) who:
(i) is employed by a labour hire agency; or
(ii) is engaged by a labour hire agency as an independent contractor; and
(b) who performs work for another entity or person under a contract between that entity or person and the labour hire agency.
(10) In subregulations (8A) and (8B):
penalty :
(a) means any of the following:
(i) a deduction of an amount from an employee's remuneration;
(ii) a reduction of an employee's entitlements;
(iii) a requirement that an employee makes a payment to the employer; but
(b) does not include a deduction, reduction or requirement that is:
(i) for the benefit of the employee; or
(ii) authorised under a law; or
(iii) made or imposed because the employee was provided with an entitlement to which the employee was not entitled.