Enterprise Agreements Rejected

The agreements failed the “no disadvantage test” for a number of reasons including the provision of lower rates of pay for employees who worked their preferred hours and termination during the probationary period on one day’s notice. The statutory declarations accompanying the applications appeared to use the incorrect form and were not witnessed by a person authorised under the Statutory Declaration Act 1959. In addition, the employer statutory declarations appeared to be “formulaic”.

Implications

This case is a reminder that:

  • Employers must be aware of and fully comply with the technical requirements under the Fair Work Act for enterprise agreements.
  • Failure to have a statutory declaration witnessed by a person authorised under the Statutory Declaration Act may invalidate an otherwise satisfactory enterprise agreement application.
  • The “no disadvantage” test is an important protection for employees and agreements that provide a cost saving for an employer rather than a benefit for an employee will most likely be rejected.