An Enterprise Agreement’s Most Dangerous Clause

Photo Credit: Olivier Hill via Compfight cc
Photo Credit: Olivier Hill via Compfight cc

What do you think the most dangerous clause in an Enterprise Agreement is?

A ‘restrictive’ clause on wage increases?


A clause on productivity improvements, if it makes it into the agreement?

Nope. Not even close.

How about the clause classifying the positions?

Once again, no.

All of these are fairly innocuous when compared to what has to be the most dangerous clause ever to find its way into an enterprise agreement.

“The Charter of Union Workplace Delegate Rights”

This clause is hardly as benign as most would lead you to believe and looks something like this.

  1. Workplace union delegates hold a vital position in the union. The union delegate has the key role of representing the collective and individual hopes, aspirations and needs of their work colleagues. They are critical to the improvement of pay, employment conditions and health and safety.
  2. The union delegate can bring together the individual creativity, skills, and knowledge of a group of people at a workplace to improve how a job is done. Australian working people have always been prepared to make a positive contribution to make sure the enterprises in which they work prosper. In a period of economic crisis, and with the passage of the Fair Work Act further increasing the role of workplace level enterprise bargaining, the role of the workplace union delegate is even more important.
  3. Workplace union delegates must receive recognition, through a Charter of Workplace Union Delegate Rights, for the key role they play. These rights should not have to be bargained. They should be universally accepted rights in a decent society.
  4. With rights comes responsibility. Workplace union delegates need to act in good faith, and do the best they can for their work colleagues together or on their individual needs.
  5. The Charter of Workplace Union Delegate Rights is a guide for fair standards for all union delegates and will be pursued by unions for inclusion in collective bargaining agreements, award entitlements, and in Australian law as rights for endorsed workplace union delegates.
    These rights are basic and fair. Union delegates are entitled to know their role is recognised and respected. Unions will campaign to build these rights over time into workplaces across the country.
  6. Accordingly, Union delegates shall have:
    a) the right to be treated fairly and to perform their role as union delegate without any discrimination in their employment;
    b) the right to formal recognition by the employer that endorsed union delegates speak on behalf of union members in the workplace;
    c) the right to bargain collectively on behalf of those they represent;
    d) the right to consultation, and access to reasonable information about the workplace and the business;
    e) the right to paid time to represent the interests of members to the employer and industrial tribunals;
    f) the right to reasonable paid time during normal working hours to consult with union members;
    g) the right to reasonable paid time off to participate in the operation of the union;
    h) the right to reasonable paid time off to attend union education;
    i) the right to address new employees about the benefits of union membership at the time that they enter employment;
    j) the right to reasonable access to telephone, facsimile, photocopying, internet and e-mail facilities for the purpose of carrying out work as a delegate and consulting with workplace colleagues and the union;
    k) the right to place union information on a notice board in a prominent location in the workplace;
    l) the right to take reasonable leave to work with the union.

By itself, this clause doesn’t appear to be too bad, though it is when it is read within the context of an enterprise agreement that the true nature of the clause is discovered.

All you have to do is have a look at the title of the clause to see the sort of damage that it can do.

Now before I hear the chorus of people trumpeting the line, that the union is it’s members, within the context of an enterprise agreement it isn’t.

When a union is involved in the negotiation of an enterprise agreement, they like to become a ‘party’ to it, and as such are either listed in the definitions or coverage clause as ‘the union(s)’.

The reality is that if you agree to this clause in an enterprise agreement, you as the business owner/manager are effectively paying your staff to go and work for another entity. An entity that is potentially set on undermining your ability to run your business.

The fact that the union delegate is working for the union, and not the members of said union is further reinforced in the ACTU’s own bargaining kit from 2011 where it says, when discussing the legality of the clause, “One drafting technique is to ensure that the delegate is always acting on behalf of the union, not on behalf of members.”

The clause cannot say ‘members’ because that would be favourable treatment for a different class of employee, even though the union movement is supposed to be against that sort of behaviour.

Then there is the ‘union education’ part.

The unions will tell you that their training leads to safer more productive workplaces, though is that really to be believed?

If you have a look at some of the courses on offer from the ACTU‘s very own training section you will see that this isn’t exactly the case.

For example in their Core Skills for Delegates & Activists course it has “to strengthen union organisation in the workplace” listed as one of the aims, along with giving participants will practice skills such as identifying issues and mapping.

When taken into context of what they really are, it becomes evident that union delegates aren’t so much there to improve the workplace as they are to be a sponsored union sales agent.

With this in mind, why would anyone in their right mind pay their staff to work for someone else?

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