The terms of an old enterprise agreement have been kept alive for several years by the employer simply raising the pay in line with the award, firstly with a memorandum of understanding involving a union and then in recent years informally by simply continuing the custom.
The registered agreement doesn’t include penalty rates for working public holidays but would pass a Better Of Overall Test.
With Zombie agreements due to expire in December, the employer has emailed everyone to confirm the award annual percentage increases will continue to apply to employee’s above award pay rates and, by inference, if not expressly, the terms of the EBA will continue to apply.
It seems to be the case that the employer does not intend to request to extend the agreement at the Fairwork Commission past December. In other words, the employer is voluntarily paying above award rates and therefore does not feel any need to formalise the arrangement by negotiation.
It seems fairly obvious to me that the employer has not thought through a potential issue with payments for working on public holidays. The employer seems to be assuming that because they are voluntarily agreeing to pay above award rates (and above award annual leave accrual), that they do not need to pay penalty rates to work public holidays because that’s what occured under the zombie agreement.
My view is, the BOOT test only applies to registered agreements. If no agreement applies, then paying above award pay rates does not change the fact that paying less than the award minimum for public holidays would be breaking the law. Am I correct? Is there a way the employer can get around this? They have already made it clear via email what the employees’ pay will be and that it will rise in line with the award every year.
One other question. Should employees state in writing, (email back), that they accept the new terms of employment. Does it make any difference to do so or not?
The registered agreement doesn’t include penalty rates for working public holidays but would pass a Better Of Overall Test.
With Zombie agreements due to expire in December, the employer has emailed everyone to confirm the award annual percentage increases will continue to apply to employee’s above award pay rates and, by inference, if not expressly, the terms of the EBA will continue to apply.
It seems to be the case that the employer does not intend to request to extend the agreement at the Fairwork Commission past December. In other words, the employer is voluntarily paying above award rates and therefore does not feel any need to formalise the arrangement by negotiation.
It seems fairly obvious to me that the employer has not thought through a potential issue with payments for working on public holidays. The employer seems to be assuming that because they are voluntarily agreeing to pay above award rates (and above award annual leave accrual), that they do not need to pay penalty rates to work public holidays because that’s what occured under the zombie agreement.
My view is, the BOOT test only applies to registered agreements. If no agreement applies, then paying above award pay rates does not change the fact that paying less than the award minimum for public holidays would be breaking the law. Am I correct? Is there a way the employer can get around this? They have already made it clear via email what the employees’ pay will be and that it will rise in line with the award every year.
One other question. Should employees state in writing, (email back), that they accept the new terms of employment. Does it make any difference to do so or not?
