Q&A Industrial Relations & Legal Adviser Malvin Khaira

Posted 19 December 2019

Q&A Industrial Relations & Legal Adviser Malvin Khaira

Q: I am taking on a new employee but want to make sure that I am all over what it means for me as an employer before this happens. Can MBA help?

A: Yes, of course we can!  In our opinion, having the initial conversation so you know what is expected of you can save you a lot of time and money later on down the track. Being a member of MBA also means that this advice is included in your membership fee!

The best way to go about getting this information is to book an appointment with us. During this appointment, we will ask a few questions – like what will the employee be doing, how you are looking to engage them, etc. – and from there we can give you an overview of the most appropriate Award coverage, the documentation that we recommend that you have in place as well as the general rights and obligations for you as an employer. Remember that the information provided at this initial meeting is not exhaustive and will usually only cover the basics.

From here, we can help with employment contracts and can provide continuing support for your employment law queries.

To arrange a time to chat with us, please either call or email (our contact details are below).

 

Q: We finished a job a little while ago but need to go back for the rectification of defects. Unfortunately, every time we try to arrange this, the client is unavailable. Is there anything in the Contract that we can rely upon?

A: Clause 27(d) of the ACT Home Building Contract provides that during the Maintenance Liability Period (or more affectionately known as the Defects Liability Period), that the client will provide access to the builder to carry out rectification works during this period at an agreed time, between 8am and 5pm, Monday to Saturday.

Our advice would be to remind the client of their obligations under the contract and to schedule any works during the timeframes provided in the contract.

 

Q: Is there a requirement for my business to have an enterprise agreement?

A: No. There is no requirement to have an enterprise agreement. Individual employment contracts are perfectly fine so long as they do not provide for terms that are contrary to or less than those under the Modern Awards and National Employment Standards (NES).

Many employers seek to implement an enterprise agreement as it is often simpler and more efficient in the long term compared to Modern Awards. This is because costs associated with accounting and payroll can add up when employers need to calculate specific entitlements like meal allowances; penalty rates; overtime; and the many additional allowances applicable to individual employees depending on the type of work they do.

 

At MBA ACT we have come across several Enterprise Agreements that do not necessarily provide efficiency to the employer in terms of simplifying the entitlements or allowances that an employee is entitled to. Instead, it often creates more complication than if a Modern Award was to operate instead. It is therefore our advice that as an employer you should always ask yourself the following questions when deciding to have an enterprise agreement.

Is there a reason why you want an Enterprise Agreement to govern the employer/employee relationship rather than simply having individual employment contracts that could potentially do the same thing?

Is an Enterprise Agreement going to simplify entitlements or allowances that your employees are entitled to in a way that provides you as an employer efficiency in accounting and payroll?

You will need to comply with strict timeframes and processes including the facilitation of meetings with bargaining representatives and consideration of their proposals, failing which could result in the Enterprise Agreement being knocked back. Are you prepared to bear the time and costs required to negotiate an EBA and to go through the process with the Fair Work Commission? (MBA does not charge its members for this service).

Please note that you do not necessarily have to agree to bargain if your employees or an eligible union wishes to bargain for an enterprise agreement. However, the Fair Work Commission could make a determination that you are required to bargain if satisfied that a majority of the employees to be covered by the agreement want to bargain. If you are a member that is faced with such a situation, please contact us at MBA ACT.

If you have any queries or would like to ask a question, please contact Malvin at mkhaira@mbaorg.au or on 6175 5900.

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