Most members of Professionals Australia’s Managers and Professionals Division are in the private sector and are employed in organisations in which collective bargaining operates. The managers themselves are however likely to be on individual employment arrangements rather than part of the enterprise agreement.
Professionals Australia notes that in relation to collective bargaining under the Fair Work Act 2009, all employees have a right to bargain – that is, they have the right to say they want to be included in collective bargaining negotiations and arrangements.
Enterprise Agreements cannot include provisions which are less favourable than the National Employment Standards. The Award is overridden if the alternative provisions pass the BOOT (better off overall) test. This test differs from the no-disadvantage test under WorkChoices because there must be a net gain.
National Employment Standards
The National Employment Standards which took effect on 1 January, 2010 are part of the Fair Work Act 2009. They contain 10 minimum conditions as set out below, and it should be noted that:
- The NES apply to all employees including managers and professionals;
- The NES may be the only protection afforded MPD members; and
- The NES apply even where Awards don’t apply.
The NES include a 38 hour working week, up to 24 months unpaid parental leave, the right for parents to request flexible working arrangements, 4 weeks paid annual leave, 10 days paid personal/carer’s leave, 2 days paid compassionate leave and 2 days unpaid emergency leave, unpaid community service leave, all national and state public holidays, long service leave, notice of termination and, if employed in a business with 15 or more employees, redundancy pay, and a requirement that all employers provide new employees with information about their rights.
- Those covered by Awards are covered by the Award and the National Employment Standards.
- Award coverage in the MPD is limited to IT professionals who work directly in IT and telecommunications excluding Telstra (e.g. Primus, Telecom, etc) but are not PEs or PSs. They are covered by the Professional Employees Award 2010. The exception is in Victoria where IT professionals were covered by the former IT Award across industry sectors – that is, regardless of whether or not they are working directly in IT.
- Beyond this, MPD managers are almost all Award-free – the work of accountants, marketing professionals, PR professionals, etc. is not described in any of the modern awards so there is no Award coverage for these professionals.
Unfair dismissal provisions set out in the Fair Work Act apply:
- where the income is less than the income threshold, or
- where work is covered by an Award.
The Fair Work Act also provides for unlawful dismissal – if dismissal occurs as a result of discrimination, the case can be heard by Fair Work Australia (instances of this are rare to date).
For advice or further information on employment-related matters, please contact Professionals Australia’s Member Support Centre on 1300 273 762.