Opal: Update on your agreement

Posted on September 1, 2017

Your Enterprise Bargaining agreement is still sitting with The Fair Work Commission for certification. 

The Commission is seeking further information from your employer Opal surrounding a number of issues. 

The Notice of Employee Representational Rights had several errors

  • Explain possible errors in the Notice of Employee Representational Rights (NERR) as the Commissioner is of the view that the Notice may not be compliant with the legislation. Specifically, the NERR refers to a 2014 agreement instead of this current agreement.
  • The notice doesn’t appear to refer to the correct name of the employer as there is a difference between what the NERR says and what the proposed agreement says.
  • The Commission also says the notice may not accurately reflect the employees that are to be covered by the proposed agreement.

Clarification about how employees were given a copy of the agreement during the access period

The Commission is also seeking information from Opal as to specifically how all employees were given access to a copy of the agreement during the access period. Opal stated they provided employees with a Memo 8 but did not provide the Commission with the Memo 8 nor did they provide explanation as to exactly how employees had access to the agreement and other materials. Opal also stated they sent an SMS, held staff presentations, but they provided no evidence to the Commission.

Compliance concerns around informing employees about the ballot

The Commission is seeking from Opal undertakings as to how they complied with s180(3) of the Act because employees are supposed to know when and how the vote will be conducted by the beginning of the access period and yet Opal advised that employees were given this information at presentations during the access period between 1 June and 8 June. The vote opened on 9 June.

Serious allegations of possible coercion of employees to vote yes

The Commission has asked Opal to respond to a number of serious allegations surrounding the possible coercion of staff being forced to vote yes and provide information as to exactly how the vote was conducted and how the agreement was explained to employees.

Breaches of the National Employment Standards (NES) with regards to accruing annual and taking annual leave

The agreement states employees can only accrue 30 days annual leave. This is a breach of the NES as there is no cap on the amount of annual leave that can be accrued. The agreement also states that employees are required to give one month’s notice when applying for annual leave. This is also in breach of the NES provisions. It further states that periods of annual should be for periods of one week where possible unless approved for special circumstances. This is also a breach as the NES specifically says that annual leave can be taken as single days. The Commissioner is seeking an undertaking that the agreement reflects the entitlement contained in the Act.

Annual leave approval concerns

The agreement states that approval of annual leave is at the discretion of the employer. However, s88 of the Act states that annual leave is taken for a period agreed between an employee and his or her employer, with such agreement not to be unreasonably refused by the employer.

Personal leave concerns

QNMU has raised concerns with the wording in clause 34.3, specifically “As far as practicable, an employee must inform their supervisor within 24 hours of the commencement of the absence, advising the nature of the absence or incapacity and the estimated duration of the absence”. QNMU believe this would require the employee to divulge confidential medical information about themselves, which is not required of an employee by the NES. Clause 34.4 states than an absence of more than 2 days requires the submission of a medical certificate or a stat dec. The NES allows an employee to provide any kind of evidence that would satisfy a reasonable person, for example, a photo of an injury. The Commission is seeking answers from Opal to these concerns.

Cashing out of annual leave concerns

Clause 35.1(g) states: In any case, an employee must have taken annual leave in the past 12 months of four weeks (or pro rata equivalent for part-time employees based on their average part-time hours in the past 6 months). The four weeks annual leave may include any leave approved to be taken in conjunction with an application for cashing out of leave. Alternatively, a minimum balance of four weeks annual leave needs to remain after cashing out of annual leave.

The Commissioner is concerned this may mean employees may be allowed to cash out leave where their remaining balance is less than four weeks when under the Act the balance cannot be less than 4 weeks. The Commission is seeking an undertaking that leave balances following cashing out will not be less than 4 weeks.

Shift penalties not better than the award

The Commissioner is concerned because under the Aged Care Award, employees are also entitled to an afternoon shift allowance (in addition to the shift penalties for work finishing after 6pm or commencing prior to 6am) if they work a shift that commences between 10am and 1pm. The concern is that the agreement doesn’t provide for the afternoon shift allowance and that Aged Care employees in levels 1 to 3 may not be better off. He is seeking an undertaking to address this concern.

TOIL on termination concerns

Clause 28.3 of the agreement provides for the taking of TOIL and the payment if not taken. The agreement however does not provide for the payout of TOIL upon termination. Under both the Aged Care and Nurses awards, the payout of TOIL on termination is at overtime rates. The Commission is seeking an undertaking that all accrued TOIL will be paid at the overtime rates upon termination.

Your union will keep you posted with any further developments surrounding these issues. 

Remember this is your agreement and your workplace. Having union members like you is what holds Opal to account. Ensure you keep your strength growing in your workplace by asking your colleagues to join with you here

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1800 177 244
Connect today 1800 177 244 members@together.org.au