Fair Work Commission

As set out above, a discriminatory term is also an unlawful term. A discriminatory term is a term that discriminates against an employee covered by the enterprise agreement because of, or for reasons including race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion or political opinion, national extraction or social origin.

A term of an enterprise agreement does not discriminate against an employee:

• if the reason for the discrimination is the inherent requirements of the particular position concerned, or
• merely because it discriminates, in relation to employment of the employee as a member of the staff of an institution that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed:
  • in good faith, and
  • to avoid injury to the religious susceptibilities of adherents of that religion or creed.

A term of an enterprise agreement does not discriminate against an employee merely because it provides for wages for:

An inherent requirement is something essential to the position, rather than something added to it.

• all junior employees, or a class of junior employees, or
• all employees with a disability, or a class of employees with a disability, or
• all employees to whom training arrangements apply, or a class of employees to whom training arrangements apply.

As noted above, an objectionable term is also an unlawful term. Employee claim action must not be in support of or seek to advance claims to include unlawful terms in an enterprise agreement.

An objectionable term is a term that requires or permits a contravention of the Fair Work Act’s general protections provisions or the payment of a bargaining services fee.

A bargaining services fee is any fee payable to an industrial association, or to someone in lieu of an industrial association, for the provision of bargaining services. This does not include membership fees. Industrial associations can offer bargaining services on a fee for service basis where an individual voluntarily enters into a contract.

As set out above, a objectionable emergency management term is also an unlawful term. Employee claim action must not be in support of or seek to advance claims to include unlawful terms in an enterprise agreement.

A term of an enterprise agreement is an objectionable emergency management term if an employer covered by the agreement is a designated emergency management body and the term has, or is likely to have, the effect of:

• restricting or limiting the body's ability to do any of the following:
  • engage or deploy its volunteers
  • provide support or equipment to those volunteers
  • manage its relationship with, or work with, any recognised emergency management body in relation to those volunteers
  • otherwise manage its operations in relation to those volunteers, or
• requiring the body to consult, or reach agreement with, any other person or body before taking any action for the purposes of doing anything mentioned in s.195A(1)(a), or
• restricting or limiting the body's ability to recognise, value, respect or promote the contribution of its volunteers to the well-being and safety of the community, or
• requiring or permitting the body to act other than in accordance with a law of a State or Territory, so far as the law confers or imposes on the body a power, function or duty that affects or could affect its volunteers.

However, a term of an enterprise agreement is not an objectionable emergency management term if:

• both of the following apply:
  • the term provides for the matters required by s.205(1)–(1A) (which deal with terms about consultation in enterprise agreements)
  • the term does not provide for any other matter that has, or is likely to have, the effect referred to in s.195A(1), or
• the term is the model consultation term.

Sections 195A(1)(a), (b), (c) and (d) do not limit each other.

A body is a designated emergency management body if:

• either:
  • the body is, or is a part of, a fire-fighting body or a State Emergency Service of a State or Territory, or
  • the body is a recognised emergency management body that is prescribed by the regulations for the purposes of s.195A(4), and
• the body is, or is a part of a body that is, established for a public purpose by or under a law of the Commonwealth, a State or a Territory.

However, a body is not a designated emergency management body if the body is, or is a part of a body that is, prescribed by the regulations for the purposes of this subsection.

A person is a volunteer of a designated emergency management body if:

• the person engages in activities with the body on a voluntary basis (whether or not the person directly or indirectly takes or agrees to take an honorarium, gratuity or similar payment wholly or partly for engaging in the activity), and
• the person is a member of, or has a member-like association with, the body.

If:

• a term of an enterprise agreement deals to any extent with the following matters relating to provision of essential services or to situations of emergency:
  • directions to perform work (including to perform work at a particular time or place, or in a particular way)
  • directions not to perform work (including not to perform work at a particular time or place, or in a particular way), and
• the application of s.195A(1) in relation to the term would (apart from this subsection) be beyond the Commonwealth’s legislative power to the extent that the term deals with those matters;

then s.195A(1) does not apply in relation to the term to that extent.

Note: See paragraph (l) of the definition of excluded subject matter in s.30A(1) and s.30K(1).