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Are you aware of the disclosable benefits obligations for employers and bargaining representatives during the enterprise bargaining process?

From 29 January 2018, there is a new prescribed form for complying with the requirement for employers and bargaining representatives (including unions) to disclose financial benefits (“Disclosable Benefits”) that they will receive, or can reasonably be expected to receive, as a direct or indirect result of a proposed enterprise agreement.

Disclosure by unions

For bargaining representatives that are employee organisations (e.g. unions), Disclosable Benefits are defined broadly and include any financial benefits received or expected to be received by the bargaining representative.

Disclosable Benefits do not include:

•  Payments to an individual as an employee covered by the agreement (e.g. wages, sign-on bonuses, allowances paid to union worksite representatives);
•  Union membership fees; or
•  Any benefit prescribed by the Fair Work Regulations 2009 (Cth) (“Regulations”).1

If there are Disclosable Benefits, the organisation must take all reasonable steps to ensure that the employer is given a disclosure document. The disclosure document must be made using a prescribed form,2 and must detail the beneficial terms of the agreement, describe the nature and (as far as reasonably practicable) amount of each Disclosable Benefit, and name each beneficiary.

The document must be provided to the employer no later than the fourth day of the access period for the agreement. The employer must, as soon as practicable, take all reasonable steps to provide a copy of the form to employees (or give those employees access to it for the remainder of the access period).

Disclosure by employers

Disclosable Benefits are defined broadly and include any financial benefits received or expected to be received by the employer, but do not include:

• Payments made to an employer in the ordinary course of business; or
• Any benefit prescribed by the Regulations.3

The employer must provide a copy of its form to employees (or give those employees access to the document) by no later than the fourth day of the access period for the agreement.

You should carefully assess any proposed agreement for potential Disclosable Benefits and if in doubt seek qualified advice.

Key Points

These requirements are designed to ensure that employees who are asked to vote on an enterprise agreement are properly informed about its effect. However, a failure to comply with the disclosure requirements will not preclude approval of the agreement by the Fair Work Commission. Breaches may result in civil penalties of up to $12,600. This could include, for example, where an employer fails to provide a copy of the union’s disclosure document to employees as soon as practicable.

Require further information/assistance?

If you require further information or advice, please contact your local Consultant at either our Adelaide or Melbourne offices.

 


Fair Work Act 2009 (Cth), section 179.
Fair Work Regulations 2009 (Cth), prescribed form at Schedule 2.1A.
Fair Work Act 2009 (Cth), section 179A.

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