Fair Work Act and Enterprise Bargaining
You are here:We continue our series of articles on the changes to our Federal IR system. this article explores the implications for workplace agreements and enterprise bargaining.
If you have employees employed under a Workplace Agreement or AWA, there are important implications for you under the Fair Work Act, with relevant parts of it to commence from 1 July 2009 and the remainder from 1 January 2010. The Rudd Federal Government has greatly strengthened the role of collective bargaining and of the “industrial umpire” (Fair Work Australia) in the new industrial framework. Here is the overview -
- AWAs are dead. No new individual agreements may be made with employees (Note that limits had already been placed on making new agreements. Individual agreements that are in operation will be allowed to run their term, but may not be renewed). If a union has even a single member on a site the union has an automatic entitlement to become party to an Enterprise Agreement unless the employee requests otherwise.
- There is no longer a distinction between a union and non-union Agreement.
- If you are starting a Greenfields site and want to set up a new Agreement for employees on that site, the relevant unions must be party. Under current legislation an employer could unilaterally develop and implement an agreement.
- The Better Off Overall Test (BOOT) - from 1 January 2010 Agreements must pass a genuinely “Better Off Overall Test” for each employee class, compared with relevant Awards and the National Employment Standards. If the test is not passed the proposed agreement will indeed get the BOOT!
- Employers must bargain in good faith with their employees and unions when bargaining for a collective agreement
Good Faith Bargaining
- In essence, you cannot fail to genuinely negotiate, or create unreasonable obstacles to collective agreement negotiations that are underway.
- An employer must negotiate where a majority of employees vote to do so. FWA may direct an employer to negotiate if it does not willingly do so.
- You must disclose relevant information, and in a timely manner. However, you do not have to disclose confidential or commercially sensitive information. FWA is able to direct disclosure.
- You must respond to proposals made by the other side, and give reasons for your responses, within a reasonable timeframe.
ER Comment – Collective bargaining has been moved to centre change under the Fair Work Act. You can expect to hear more from union officials even if you have only one or two union members, so more of your time may well be taken up in dealing with unions during a bargaining period. Once collective bargaining is underway you have to bargain in good faith, although you cannot be forced into signing an agreement with which you disagree. ER Strategies is able to assist you in drafting an Agreement or preparing for and conducting negotiations.
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