When making agreements, it is not only the award conditions that an employer has to keep an eye on to ensure approval by the commission. Unlike award provisions, NES employment conditions cannot be bargained away.
When a private hospital negotiated an agreement it restricted access to an additional week’s annual leave to shift-workers by defining the term “shift-worker” much more narrowly than the underpinning award. This meant that, compared to an award based employee, the NES provision of an extra week was harder to gain entitlement to.
The Fair Work Commission refused to approve the enterprise agreement at first instance and again at appeal. The full bench even quoted Parliament’s Explanatory Memorandum in relation to the specific issue of the extra week’s leave. Of particular relevance was the statement in the memorandum “a shift worker would not be able to trade away his or her extra week of annual leave under the agreement”.
This case demonstrates that unlike award conditions that can be traded or re-shaped to the enterprise, the same does not apply to the NES. These are described in the legislation as “minimum standards that apply to the employment of employees which cannot be displaced”. It means that employers need to know what those NES minimum provisions are so that in the bargaining process, these are isolated to ensure against what happened in this case.