AT794740CRA - Retail and Wholesale Industry - Shop Employees - Australian Capital Territory - Award 2000 [Transitional]
9.1 Agreement to vary award provisions
9.1.1 This award contains facilitative provisions which allow agreement between an employer and employees on how specific award provisions are to apply at the workplace or section or sections of it.
9.1.2 The specific award provisions establish both the standard award condition and the framework within which agreement can be reached as to how the particular provisions should be applied in practice. Facilitative provisions are not to be used as a device to avoid award obligations nor should they result in unfairness to an employee or employees covered by this award.
9.1.3 Facilitative provisions may provide for agreement to be made by individual employees or by the majority of employees.
9.2 Procedure to reach agreement
9.2.1 Where an award clause contains a facilitative provision and the employer proposes to reach agreement with either an individual employee or a majority of employees about how a specific award provision is to apply the employer must give written notice to the employee/s. The notice must contain:
9.2.1(a) A summary of the existing award entitlement.
9.2.1(b) The proposed agreement being sought.
9.2.1(c) A statement that the employee is entitled to be represented by the Union or by any other person in negotiating with the employer over the proposed agreement.
9.2.1(d) A statement that the employee is not required to agree to the proposed agreement, and that if the employee does agree to the proposed agreement their agreement must be freely given and genuine.
9.3 Records and copies of agreement
The agreement reached must be recorded in the time and wage record kept by the employer in accordance with Division 1 of Part A of the Workplace Relations Regulations and a copy of the agreement must be given to each employee affected by the agreement.
9.4 Binding effect of agreement
9.4.1 Individual agreement
Where no agreement has been sought by the employer with the majority of employees in accordance with a particular facilitative provision, the employer may seek to reach agreement with individual employees provided it complies with 9.2, 9.3, 9.5.2 and 9.5.3 and provided that the agreement is only with an individual employee or a number of individuals less than the majority in the workplace or a section or sections of it.
9.4.2 Majority agreement
Where agreement has been reached with the majority of employees in the workplace, or a section or sections of it, to implement a facilitative provision, that agreement shall be binding on all such employees, provided the requirements of 9.2, 9.3 and 9.5 have been met.
9.5 Implementation of agreements
9.5.1 Where agreement has been reached with the majority of employees in the workplace or a section or sections of it to implement a facilitative provision, the employer may not implement that agreements unless:
9.5.1(a) it complies with 9.2, 9.3 and 9.5.3; and
9.5.1(b) agreement has been reached with each individual employee to be covered by the facilitative provision.
9.5.2 If an employee is a member of a union bound by the award, the employee may be represented by the union in meeting and conferring with the employer about the implementation of the facilitative provisions.
9.5.2(a) The union must be given a reasonable opportunity to participate in negotiations regarding the proposed implementation of a facilitative provision. Union involvement does not mean that the consent of the union is required prior to the introduction of agreed facilitative arrangements.
9.5.3 This additional safeguard requires that the union where it has members employed at an enterprise covered by the award shall be informed by the employer of the intention to use the facilitative provision and shall be given a reasonable opportunity to participate in the negotiations regarding its use. Union involvement in this process does not mean that the consent of the union is required prior to the introduction of agreed facilitative arrangements at the enterprise.
9.6 Majority vote at the initiation of the employer
A vote of employees in the workplace, or a section or sections of it, taken in accordance with 9.4.2, to determine if there is majority employee support for implementation of a facilitative provision, will be of no effect, unless taken with the agreement of the employer.
9.7 Dispute over facilitation
In the event that a dispute or difficulty arises over the implementation or continued operation of a facilitative provision, the matter will be handled in accordance with the dispute resolution procedure in clause 11 - Dispute settlement procedure.
