Certain terms or conditions are not permitted by law to be included in workplace agreements. Persons or organisations which include or seek to include prohibited content in a workplace agreement may face heavy penalties.
What is prohibited content?
Prohibited content refers to terms or conditions that cannot be included in a workplace agreement under the Workplace Relations Act 1996 (WR Act).
A term of an agreement that contains prohibited content is void and cannot be enforced.
This does not apply to pre-reform certified agreements.
What kind of content is prohibited?
Prohibited content includes terms of a workplace agreement that deals with:
- deductions from wages to pay union dues or the provision of payroll facilities for those deductions
- leave to attend union training
- paid leave to attend union meetings
- the renegotiation or confidentiality of a workplace agreement
- the right of unions or employer organisations to participate in dispute settlement procedures, unless the organisation is the representative of the employer or employee’s choice
- right of entry by an official of a union or an employer organisation
- restrictions or conditions on the engagement of independent contractors or labour hire employees
- forgoing annual leave, other than in accordance with the WR Act
- the provision of information about employees to a union
- encouraging or discouraging union membership
- permission to engage in or organise industrial action
- a right or remedy for unfair dismissal
- restrictions on offering or entering an Australian Workplace Agreement (AWA)
- objectionable provisions, such as provisions that require or permit breaches of freedom of association
- discrimination based on race, colour, sex, sexual preference, age, disability, marital status or religion
- matters not pertaining to the employment relationship.
What penalties may be imposed for including or seeking to include prohibited content in a workplace agreement?
Penalties of $6,600 for an individual or $33,000 for a body corporate apply:
- if an employer recklessly lodges a workplace agreement containing prohibited content
- if a person recklessly seeks, in the course of negotiations, to include prohibited content in a workplace agreement or
- if a person recklessly makes a misrepresentation that a particular term of a workplace agreement does not contain prohibited content.
What can parties do to prevent prohibited content?
Parties may obtain legal advice or request that the Workplace Authority review a workplace agreement prior to its lodgement.
Employers and employees are urged to seek legal advice if a union attempts to include prohibited content in a side agreement, such as a deed, memorandum of understanding or correspondence. Side agreements may constitute a breach of the Australian Fair Pay and Conditions Standard or the National Code of Practice for the Building and Construction Industry.
Removal of prohibited content
The Workplace Authority may remove the prohibited content from a workplace agreement on its own initiative after providing the parties with notice and an opportunity to make written submissions.
If the Workplace Authority is considering varying a workplace agreement, an employer is obliged to give affected employees a copy of:
- the Workplace Authority’s notice of intention to vary the agreement and
- the Workplace Authority’s decision to vary the agreement.
Further information
You can download a printable version of this fact sheet here: Prohibited Content in Workplace Agreements (PDF 101KB)
The information contained in this fact sheet is correct as at 28 March 2008.
This material is for general information only. You should seek legal advice in relation to your particular circumstances. The Australian Government, its employees and agents do not accept any liability for action taken in reliance on this document and disclaim all liability arising from any error or omission. ABN 68 003 725 098
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