Depending on where you work and what sort of work you do, you will have been hired under either: 1) an industrial award, 2) an enterprise bargaining agreement (EBA) also called a collective agreement, or an Individual Transitional Employment Agreement (ITEA) also called an individual contract.

Many employees are also employed under common law contracts that fall outside the rules of legislation, but which require employers to just cover the new Fair Pay and Conditions Standard.

If you are covered by an award or an EBA, you will automatically have some family-friendly work provisions available to you that you simply have to discuss taking up with your employer. If you are covered by an ITEA, you will have to negotiate your own provisions. You can appoint a bargaining agent to do this for you.

Under the workplace laws, if you start a new job, incorporated employers will be able to override existing award or EBA conditions and offer you an ITEA if they meet a number of conditions set out by the Workplace Authority. A new ITEA will be subject to the No Disadvantage Test.

Industrial Awards

Historically, awards have been the main mechanism under which Australian employees have been hired. An award is a law representing the decision of an industrial tribunal on minimum rates of pay and conditions of employment. Awards are backed by State or Federal legislation that gives the tribunals the power to make and enforce fair pay and conditions. There are different awards for each industry or type of work.

Rates of pay depend on skill levels and work done but working conditions in awards apply to all employees. Rates of pay are set by industrial tribunals and increase with indexation each year.

The conditions relevant to working carers include Carers’ Leave and Make Up Time. Personal/Carers’ Leave used to be part of sick leave and in New South Wales is leave an employee can take to care for a family member who is sick. If you take personal carers' leave you must be responsible for the care of the person who is sick. This type of leave is paid leave. You can take leave to care for:

• a family member who is your spouse, de facto spouse or same sex partner;
• a child, including adopted, foster, ex-nuptial or step child;
• a parent, including foster parent or legal guardian; or
• a grandparent, grandchild or sibling.

You may also take leave for the children, parents, grandparents or siblings or your spouse or de facto spouse, or any other relative who is a member of your household. Personal carers' leave allows you to use all your current and accrued sick leave to care for the sick family member.

Sometimes extra personal leave is available but this is not intended to allow you to care for dependents. Make Up Time means you can ask your employer to take time off during your shift to attend to the person you are caring for or other matters, and make the time up later.

The bereavement leave entitlement is a minimum of two days. Some awards provide for three or more days and may also impose other conditions on taking leave. Bereavement leave may also be taken in conjunction with other personal carers' leave with the agreement of your employer.

A 2005 test case before the Australian Industrial Relations Commission gained agreement to extend the amount of paid personal leave available for caring purposes from five to 10 days a year, with further unpaid leave and workplace flexibility available to care for sick or otherwise needy dependents. The decision also provided that casual employees who were otherwise ineligible for time away from work to attend to family care would be able to take up to two days per occasion involving the birth, death, illness or other emergency involving a dependent. The Federal Government’s National Employment Standards, to be introduced in January 2010, has taken up this agreement allowing a minimum of 10 days of paid Personal/Carers Leave per year, paid compassionate leave and two days of unpaid leave per occasion for emergencies or for casual employees.

Some awards may have other benefits available to carers, so check yours to see what you are already entitled to. Where awards currently provide more generous conditions than the Fair Pay and Conditions Standard, the more generous conditions will apply to those still covered by awards. Each workplace is required to have a copy of the awards they use available for all staff to consult. If you are covered by an award and after discussion with your employer, you are legally entitled to make use of the family-friendly provisions in it. Your employer should be aware of these provisions and readily agree to them.

Enterprise Bargaining Agreements

Also known as certified agreements, Enterprise Bargaining Agreements or EBAs are a relatively recent arrival on the industrial relations landscape and came into effect in the early 1990s. An alternative to awards, an EBA regulates the wages, conditions and work practices of a particular company or business. It must be formally documented and registered with the appropriate industrial authority to be legally binding.

EBAs are negotiated between the staff of the company or business, together with their union, and company management. Salaries with above award rates and family-friendly provisions are negotiated with management in return for increased productivity. This process usually takes a year or two. The EBA then applies for several years before it has to be renegotiated. All employees who work at the company or business benefit from increases in pay and conditions and do not have to be union members.

As with awards, there should be a copy of your EBAs at your workplace so you can check the family friendly provisions available to you. If you are covered by an EBA and after discussion with your employer, you are legally entitled to make use of the provisions in it. Your employer should be aware of these provisions and readily agree to them.

Once EBAs expire, they can be renegotiated. Under the new industrial relations laws employers can apply to end agreements if negotiations for a new agreement have gone on for three months. If this occurs, the minimum conditions of the Fair Pay and Conditions Standard will come into effect.

Individual Transitional Employment Agreements

An Individual Transitional Employment Agreement (ITEA) is a special transitional instrument which is available during the transition to a new workplace relations system. It is an individual written agreement between an employer and an employee setting out the terms and conditions of the employee's employment.

Choosing whether to sign or not to sign an ITEA is an important decision which could have significant effects on your pay, working conditions and legal protection. Under Federal Government legislation, you will be responsible for checking your own ITEA and should only sign it if you genuinely consent or agree to it.

ITEA's may be made:

• during the 2 year period of award simplification (ending 31st December 2009);
• between:
  • an employer who has any employee engaged on an Australian Workplace Agreement as at 1 December 2007; and
  • a new employee or an existing employee whose terms and conditions are governed by an Australian Workplace Agreement; 
• with a nominal expiry date of no later than 31 December 2009, provided;
• the ITEA does not disadvantage the employee against a collective agreement applying to the work the employee will perform at the workplace or, where there is no collective agreement, the applicable award and the Fair Pay and Conditions Standard.

The no-disadvantage test ensures that each ITEA does not, on balance, reduce the employee's overall terms and conditions of employment. This generally involves a comparison between the terms of the ITEA and the terms of the relevant collective agreement or award.

The Workplace Authority will assess each lodged ITEA against the no-disadvantage test. The Workplace Authority will also assess the ITEA against the no-disadvantage test if the employer and employee seek to vary its terms by making an ITEA variation agreement.

For more information on ITEA's contact the Workplace Authoriy on 1300 363 264 or visit the website: www.workplaceauthority.gov.au

What next?

If you would like to learn more about the issues raised in this Fact Sheet you may like to try:

• returning to the Employees menu on the Gateway
• checking out the Federal Government Workplace Relations website for more information on Carers
• visiting the relevant state workplace and employment website
  • NSW - http://www.industrialrelations.nsw.gov.au
    VIC - http://www.business.vic.gov.au
    QLD - http://www.deir.qld.gov.au
    SA - http://www.service.sa.gov.au
    WA - http://wa.gov.au/governmentservices/jobseconomy
    TAS - http://www.service.tas.gov.au
    NT - http://www.nt.gov.au
    ACT - http://www.act.gov.au
• subscribing to our monthly newsletter, Work 'n' Care, for regular information and support regarding the issues facing working carers.

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