According to the Shadow Minister for Workplace Relations, Brendan O’Connor, (collective) bargaining power has tilted too much in favour of employers. This would rankle many an employer who, amongst other things, would feel the intense irony of Labor asserting that its workplace law, The Fair Work Act (The Act) carries employer bias.

A key tenet of Shadow Minister O’Connor’s National Press Club speech is that employers are “gaming” the Act. He relies on the example of an employer that sought to outsource work and have the services performed by a third party. Hardly remarkable. So what might employers say about this? In what ways do unions “game” the Act? Here’s a short list. Some involve taking advantage of existing laws and are therefore legal. Some are not.

Unlawful picketing – the relatively slow, expensive and difficult legal process to remove an obstructive picket provides a union with massive leverage in bargaining or a dispute (such as was the case in the example cited by Shadow Minister O’Connor). The ends justifies the (illegal) means it seems.

Unlawful industrial action – often taken for short periods but with maximum impact knowing the employer is unlikely to seek meaningful redress because the cost, effort and ‘pay-back’ is not worth it.

“Subterranean” industrial action – mass sickies or “go-slows” which are often hard to prove as industrial action and again very potent.

Threats of industrial action – made in bargaining but often not followed through. Sure, it’s better to not have the industrial action, but the employer needs to assume it is happening and in turn that it won’t be able to meet supply needs. Try running an airline on this basis.

Minority interests rule – in a system aimed at ‘the collective’, it’s nonetheless very often the interests of a powerful minority in the workplace that dictate bargaining outcomes. True, the majority are often passive and hence you might say ‘in agreement’. But the reality is very different.

Agreements made without union involvement are undermined – agreements are technically made with employees. Many have union involvement. Some do not. As you can imagine, unions will often take every point and make every attempt to delay the making of a ‘non-union’ agreement whatever the consequences for the employees who have made the deal.

Taking industrial action without bargaining in good faith – because the law doesn’t require this.

Preventing legitimate change – using legal processes to stymie change, because the union and typically a minority don’t like it. Delay costs an employer money and/or progress and who knows what can be extracted from more time. Sometimes the change is for the better health and safety of employees and delay is potentially at their expense.

Bad employee behaviour is supported – not always, but all too often, where the behaviour is that of a loyal union delegate whose absence from the site means the loss of a vulnerable union foot soldier.

Am I generalising? Yes. Would there be plenty of employers and peers of mine who agree with the above assessment? Yes.


See our related blog Proposal to outlaw “unrepresentative” enterprise agreements – when will an enterprise agreement be undone? for additional commentary on the Shadow Minister’s speech.

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On Wednesday 18 October, the Shadow Minister for Industrial Relations Brendan O’Connor foreshadowed amending the bargaining regime in the Fair Work Act to outlaw so-called “sham agreements”.

The target of the changes seems to be enterprise agreements that are voted on by one group of employees, but have the potential also to cover a much broader group, or to cover a similar group who will be employed in a different geographic location. The Shadow Minister referred to these situations as employers “gaming the system”. 

However,  we note that the Fair Work Act already contains a number of safeguards to prevent “gaming the system”, including that agreements are genuinely made, that employees who vote to make the agreement are “fairly chosen”, and employees are not coerced to vote or not vote for an agreement.

While we do not have the benefit of any detail (such as a draft Bill) – there are some things to be said about the potential effects of the foreshadowed changes.

The concept put forward by Shadow Minister O’Connor in his speech would allow an agreement that has been made, to be challenged and potentially reversed on the basis that the employees who made the agreement are not “representative” of those who will be covered by it.

This raises a number of important questions including:

  • What factors are to be taken into account in determining representativeness?
  • Which characteristics of the employment will be given priority over others in determining representativeness?
  • Who could challenge an agreement that has been made? For example:
    • Could a competitor union to that which represents the employees use the provisions to unwind an agreement that has been made?
    • Could another company challenge the approval, with the goal of ensuring the employer is hindered in achieving competitive terms and conditions for its business?

These questions may not be answered unless and until the provisions are enacted and tested by the many varied situations real life throws up.

Our initial impression is that any amendments that allow agreements that have been made to be effectively “undone” could cause enormous problems that go well beyond the immediate issue being addressed. This exemplifies the danger of focussing on first order consequences, at the expense of equally (sometimes more) important second and third order consequences.  By trying to plug a perceived gap in the legislation, these amendments have the potential to open up a new form of “litigation sport” – where agreements that have been made are subject to lengthy legal challenges and then undone much later down the track. There are many industrial reasons – which have nothing to do with the supposed problem being addressed – which might provide motivation for such challenges. Continue Reading Proposal to outlaw “unrepresentative” enterprise agreements – when will an enterprise agreement be undone?

Trade union conduct is constantly changing, and our team have observed trends that are reshaping the boundaries, and that have already begun to impact our clients.

Policy Measures: increased scrutiny on trade union conduct

On the policy front, the conservative government has implemented three measures addressing unlawful behaviour by unions and their members based on the findings of former High Court Justice John Dyson Heydon AC QC in the Royal Commission into Trade Union Governance and Corruption in 2015.

Two key measures passed in late 2016.

The Australian Building and Construction Commission (ABCC) has been reformed and is expected to repeat the effective reform of union practices achieved by the previous ABCC in the mid-to-late 2000’s. The ABCC regulates building and construction industry participants its functions include implementing a code of practice to regulate workplace practices and taking action to prosecute breaches of workplace laws. Sanctions can be imposed to exclude companies from tendering for government funded building work. The return of the ABCC has generally been welcomed by the construction industry.

A new regulator was introduced. The Registered Organisations Commission (ROC) was established to enhance governance and financial accountability of trade unions following multiple findings of misuse of union funds. The regime draws upon statutory duties placed upon company directors under Australia’s corporations law. Financial reporting and disclosure obligations have been strengthened, and penalties for non-compliance have increased, including criminal offences for serious breaches. New whistle-blower protections have also been introduced.

Further new laws have been proposed to prohibit making or receiving corrupting payments at the direction of unions, bringing greater accountability to unions and their office holders.

Novel application of anti-bullying protections

A recent decision of the Fair Work Commission (FWC) in its anti-bullying jurisdiction provided a novel application of existing law to address unlawful behaviour by unions in industrial disputes. The decision recognises that abusive or offensive conduct directed at other workers won’t be excused in the heat of industrial battle.

The catalyst for the dispute was a change of contractor providing maintenance services at the site on terms opposed by the unions. The dispute was heated, and a picket at the site continued for almost six months. Drawing on the power to name and shame, the union-led campaign included extensive use of social media (some against individual workers), a boycott of the targeted company’s products and fundraising activities.

A key priority for the new contractor was to protect its workers from being bullied at the site and on social media. The FWC made orders against unions and officials to restrain conduct directed at workers entering or leaving the site during the dispute.

The FWC orders prevented:

  • photographing, filming, or digitally recording any of the workers (or attempting to do such things);
  • abusing or harassing workers, including calling out offensive or insulting names, including “scab” or “dog”;
  • accosting or obstructing workers;
  • holding up any signs or material at the picket which contain offensive or insulting language towards the workers; and
  • approaching a worker, any vehicle driven by a worker or a vehicle in which a worker is a passenger.

The FWC determined it appropriate to make orders protecting the identities of workers seeking orders. This should provide comfort to workers subjected to similar tactics in future.

This matter represents the first time the FWC has made anti-bullying orders against a union and picketers in relation to protest activity and represents a novel and effective use of the FWC’s anti-bullying jurisdiction by employers. Before this decision, the FWC’s anti-bullying jurisdiction, which commenced in 2014, has most often been used by individual employees against employers and managers.

Traditional employer responses to picketing have involved seeking injunctions to stop such activity, which can be time consuming and costly. The FWC’s anti-bullying jurisdiction supplements these options with a quick and cost-effective alternative to counter intimidation during union organised picketing.


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The gig economy is only one of the reasons that workers of the future will not have close connections with one employer or business – another is the movement towards arranging their life so that they spend substantial periods of time not working at all.

The trend towards regularly spending long periods of time away from the workforce is highlighted in an article by Christine Long in the Sydney Morning Herald considering people who only work a few months of the year, and the renowned demographer Bernard Salt’s column in The Australian that looks at changes that millennials will bring to the workforce. Both identify movement towards:

  •  workers wanting to spend significant time doing other things – beyond the traditional two year stint in London, many millennials (and even Gen-Xers) want to spend months every year travelling or pursuing personal interests. Workers no longer feel a need to hold down a steady job the whole year or to take only four weeks leave per year
  • to achieve that goal, workers seek flexibility by negotiating specific employment arrangements or engaging with businesses strictly on their own terms – eg establishing their own service business and working where and when (and for how long) they choose
  • for the above reasons, workers will interact with organisations on a sporadic basis – they will not have long-term or even regular engagements with one business.

The stability employees once sought through steady employment with large companies, to support nuclear families, will be relegated to the history books for an ever increasing number of Australians. And as more and more millennials enter the workforce, we will continue to see business practices needing to adapt to these changes.

As we‘ve mentioned, substantial legislative reform will be necessary to make sure that these developments are properly catered for – and balanced against social expectations about minimum wages and other entitlements.

But, how will your organisation cope in the meantime? From our work with clients, and our own experience starting from the ground up in Australia four years ago, we have identified a need to:

Consider business need before engagement. Mindful of the nature of your business, your legal risk profile and appetite for change, consider if your current business need can be properly supported with workers taking substantial periods away. Carefully examine whether it is best to engage such workers as independent contractors or employees and if you’re ready for the administrative overheads involved in a change to the way workers are engaged.

Think about how the arrangements will work in practice. You need to examine the legal implications of the treatment of time away from work. If you use employment arrangements, consider how unpaid leave can be handled, as there may be impacts on length of service (which may impact things like accrued leave and access to unfair dismissal). Think about ways you might be able to build connection and loyalty so that the worker is willing to be there for you at short notice.

Re-visit your contracts and workplace policies. You will need to ensure your contracts and policies clearly and comprehensively deal with the organisation’s expectations about long-term absence and when it is prepared to enter into flexible arrangements, preferably at the organisation’s discretion.

Business continuity. While no business is assured continuity, you must consider how you will manage operations on critical processes and projects when workers want to take substantial periods away, including how you will achieve satisfactory knowledge transfer. You will need to look at whether you can support business continuity by covering long periods of absence with another flexible worker – including, perhaps, using job share arrangements or short-term engagements.

On-boarding and off-boarding. Resources should be allocated to processes to on-board and off-board workers on these arrangements. For roles that have critical safety risks, you must ensure you fully understand your duties to protect yourself from legal risk.


Our ‘future of work’ series has been considering how businesses will need to grow and adapt to changes to the way in which work will be performed in the future. Many of these developments flow from significant advances in technology that we have seen over the last 20 years – for example, increased automation, increased use of robotics and increased computing power have made many traditional roles redundant, while Increased communications potential has meant that many workers can perform their roles flexibly. We understand these developments as the law firm known for our role in transformational legal industry and labour and employment issues, we believe it is our responsibility to harness our knowledge, experience and relationships to forge a path for the Future Employer.

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We have been watching with close interest the exponential expansion of crypto-currencies. These instruments, such as Bitcoin, Ethereum and Litecoin, are methods of secure, electronic transfer of value between individuals using advanced digital encryption techniques – without any central regulation by government.

Recent research published by The Conversation suggests that crypto-currencies are showing no signs of being merely a speculative bubble. With their recent translation from purely online origins into tangible interfaces, for example, the establishment of Bitcoin ATMs in Australia, employers need to consider not only the future of work, but the future of the ways in which businesses will be able to, or might want to, reward contribution.

While crypto-currencies remain in their infancy, the likely speed of growth of direct, electronic-based, decentralised, financial interactions between individuals mean that they are likely to grow in relevance as consumers become more comfortable and familiar with their use – and possibly overcome their fear!

As more transactions occur in crypto-currencies, businesses may find that they collect some of their revenue in crypto-currency or that their contributors ask to receive reward in crypto-currency. In both these scenarios, the business will be under pressure to use a currency that may be rather different to what they have been used to.

But what does this mean for the way in which a business will interact with its contributors? There are two separate groups of contributors that need to be considered at the moment:

  1. where a business employs a worker in Australia, a business will generally need to pay the worker in “cash” for the work they have performed, as result of particular provision in the Fair Work Act. This provision was originally designed as a protective system for employees – it prevents an employer trying to implement a system where an employee is paid “in kind” a prohibition which originally from the old UK “Truck Acts”, preventing employers paying employees in goods (but that’s for a future blog to explore). Payments in kind present obvious challenges in relation to the value that is placed on the good or service that the employee would receive – requiring cash payment reduces the prospect that the employee might be short-changed.
  2. where a business engages a worker as an independent contractor, there is significantly less regulation in Australia. There are no express prohibitions on businesses giving contractors reward in something other than cash – arguably reward could be given in Bitcoin or other crypto-currency.

Obviously, as crypto-currencies become more widely accepted (though the total market capitalisation across crypto-currencies already well exceeds USD 100 billion), we may see the employment legislation develop to allow alternative payment methods – but this may well be a decades-long evolution rather than a Che Guevara style revolution.

Importantly, though, viewing the workforce through this lens reflects the trend we are seeing – as the basis on which the workforce is engaged shifts over time away from traditional employment and towards independent contractor gigs, it is likely that even without legislative reform, businesses will have increasing flexibility in the way they pay for the services that are provided.


Our ‘future of work’ series has been considering how businesses will need to grow and adapt to changes to the way in which work will be performed in the future. Many of these developments flow from significant advances in technology that we have seen over the last 20 years – for example, increased automation, increased use of robotics and increased computing power have made many traditional roles redundant, while Increased communications potential has meant that many workers can perform their roles flexibly. We understand these developments as the law firm known for our role in transformational legal industry and labour and employment issues, we believe it is our responsibility to harness our knowledge, experience and relationships to forge a path for the Future Employer.

Subscribe to receive the next blog in our Future of Work series direct to your inbox.

One of the more interesting recent developments in relation to work has been the continual rise and development of the gig economy – that is, workers developing niche areas of specialist expertise, but having careers characterised by a series of interactions with various organisations, rather than being employed by one company for many years. This doesn’t just mean a person working in multiple jobs over the course of their life, but that they are much more likely to be running their own independent business providing services to customers.

Over the last 15 – 20 years, many businesses have made the distinction between core and non-core functions, using that distinction to drive and make judgment calls about the nature and form of their relationships with those contributing to their business (including employees, contractors, suppliers or others). With the development of the gig economy, businesses will need to be more sophisticated in their analysis, taking a much more fundamental and holistic view of how they want the business actually to operate – entrepreneurs, leaders and managers need to consider how the emerging gig economy will impact on the structure of the business’s relationships with its contributors.

So, how can your business make the most of the opportunities that a gig economy offers, while also managing the legal, reputational and business risks of dealing with multiple independent contractors?

Employment and industrial law may be slow to catch up with these developments – indeed, it has only been within the last five to seven years that the industrial tribunal in Australia revisited the whole way in which awards work (with the result that a simplified system has been developed, albeit one still focussed on a traditional employment model). But sophisticated businesses with an eye on long-term success will be looking at a range of issues now to make sure they are ahead of the gig movement:

  • how to ensure that customer experience (“CX”) remains consistent over time if customers interact with different personnel each time (perhaps, for example, by using CX metrics as part of the contractor reward system)
  • how to ensure that the business is properly resourced and able to respond to urgent customer demands with a workforce that does not necessarily have any particular loyalty
  • which labour markets the business will use to source gig workers – will we have a “Beta vs VHS” winner or live with an “Apple vs Android” solution? Will the business accept the standard terms associated with using markets like Airtasker?
  • whether to develop a standard form for the engagement of contractors/gig workers, and how to ensure that the right type of engagement is used in each circumstance
  • how safety systems and processes need to adapt as the pendulum swings from workers being employees to workers only lightly touching the periphery of the business from time to time – will you need to re-evaluate your risk profile?
  • how the legal risks associated with gig workers are managed and ensuring that systems insulate the business as far as possible from legal claims, such as sham contracting
  • the increased interest by regulators in how businesses are interacting with their workers.

Our ‘future of work’ series has been considering the ways in which businesses will need to grow and adapt to changes to the way in which work will be performed in the future. Many of these developments flow from significant advances in technology that we have seen over the last 20 years – for example, increased automation, increased use of robotics and increased computing power have made many traditional roles redundant, while Increased communications potential has meant that many workers are able to perform their roles flexibly. We understand these developments as the law firm known for our role in transformational legal industry and labour and employment issues, we believe it is our responsibility to harness our knowledge, experience and relationships to forge a path for the Future Employer.

Subscribe to receive the next blog in our Future of Work series direct to your inbox.

Enterprise bargaining is down. That’s the big call out from the Department of Employment Report on Enterprise Bargaining February 2017. Comparing private sector agreement numbers from 2014 there is a reduction by a third overall, with close to 50% less in retail and construction and around 20% in most sectors.

As a result, the number of employees covered by current agreements (ones that haven’t expired) has declined. The decline is felt in respect of both union and non-union agreements.

If fewer agreements are being made or perhaps, more accurately, are taking longer to be replaced, why? The economic environment has a big part to play particularly in some key sectors. Unions are finding it harder to secure deals – obviously. Is this a function of the economic environment or is it a function of a longer more systemic trend borne out of declining union density, and therefore union organising power? Probably both.

The agreement making numbers are down, particularly in smaller enterprises. Unions are best placed to focus their resources on larger employers where the potential membership pool is larger. On the employer side, the cost of making a new agreement (2% per annum plus wage increases) outweighs the pain (union pressure/employee discontent) of not doing so. An employer’s “BATNA” (best alternative to a negotiated agreement) is the status quo. There is more leverage for employers in an environment where the termination of expired agreements is more readily available than once thought.

When this occurs employers start thinking about a concept that gets revisited every decade since the dawn of enterprise bargaining: “beyond bargaining”. How can we, the employer, operate in a sustainable, risk-free way without enterprise bargaining? The solutions here are well known, but long term and resource intensive. It relies on two key premises:

  • First, there is nothing to be gained operationally by enterprise bargaining. The “productivity lemon” has been well and truly squeezed. Employers consistently tell us this.
  • Secondly, bargaining can be avoided with manageable risk. Put another way, any risk associated with the bargaining process (read “industrial action”) does not outweigh risks associated with making an agreement which, in the longer term, risks the viability of the enterprise.

A photo by Thomas Kelley. unsplash.com/photos/hHL08lF7IkcThe Aurizon decision handed down on 22 April 2015 and endorsed by a Full Federal Court on 3 September 2015 has created a viable option for employers needing to move away from legacy industrial arrangements that are bad for business.

The Aurizon decision was a watershed ruling because it swept away a longstanding presumption that agreements should not be terminated whilst bargaining negotiations for a new agreement are occurring (see our earlier blogs about this decision here). The mere fact the option exists has given employers more leverage in bargaining, as well as providing an opportunity to change arrangements other than through a union-resisted employee ballot for a new agreement.

Figures released by the Department of Education last week show that applications to terminate agreements have almost doubled. The Fair Work Commission terminated 416 agreements in Q1 – Q3 2016, which represents an increase from 275 in 2015 and 156 in 2014.

Of course, not every agreement is a good candidate for termination – a lot depends on the context, the reasons for the application, what has occurred during the bargaining process, and a list of other factors. An employer making an application to the FWC without the consent of employees covered will need to show that termination of the agreement is not contrary to the public interest, and is appropriate in all of the circumstances.

The union response to these recent developments has been multi-layered, with the following key strategies observed:

  1. Deal with it “on the ground” using traditional IR tactics and weapons (including ramping up protected action and/or taking covert unprotected industrial action)
  2. Go after the “brand” with media campaigns and the like
  3. Lobby for changes to the legislation – unlikely at present
  4. Look for suitable test cases to run to try to overturn Aurizon, and / or
  5. Try to agree restrictions in the agreements currently being negotiated to the effect that if the employer applies to terminate the agreement in the future, specified terms and conditions considered particularly important will be maintained by way of undertaking.

This fifth strategy is itself a result of a recent development. Late last month, VP Hatcher stayed a decision of DP Clancy to terminate the Loy Yang Power Enterprise Agreement 2012. The stay was issued on the grounds that termination was ordered despite a specific clause in the EA requiring the Company to maintain a suite of conditions until a replacement agreement was negotiated. While AGL gave an undertaking it would maintain certain conditions, the undertaking was narrower than the list of conditions specified in the clause.

The appeal will be heard on 21 February 2017. The appeal will look closely at the effect of this clause and particularly whether AGL moving away from it impacts on the “appropriateness” of terminating the agreement. This part of the test requires the FWC to consider a range of discretionary factors.

The impact of the AGL stay has been immediate. Across our partnership, we have seen unions ask for a similar protective clause in over half a dozen separate bargaining negotiations in the past week. Major employers will increasingly need to deal with this kind of claim and the public campaigning that results if there is a rejection of the claim. Of interest over the next month will be how far the AGL appeal goes – and whether it has ramifications beyond the specific facts of that case.

ColourIn 1993, the Keating government passed laws to move Australia towards a “system based primarily on bargaining at the workplace, with much less reliance on arbitration at the apex” (Laurie Brereton MP, Minister for Industrial Relations, 28 October 1993).  The embrace of enterprise bargaining instead of industry-wide, centralised wage fixation was to be the end of a creaking “Australian settlement” that had been overtaken by modern values and economic reality.

Enterprise level bargaining has undoubtedly been a positive move away from the system that preceded it.  Nevertheless, over 20 years since its introduction, an observer might feel skeptical about the promise of agreements that would be tailored to the needs of individual workplaces and their employees, under which “employees and employers alike can and will benefit”.  It is not hard to find examples where enterprise bargaining’s ideals are being undermined by:

  • Sectoral bargaining. Many employers who have tried to strike genuinely enterprise-specific bargains will be familiar with variations of the phrase “this is the industry standard…”. The reality is that many terms and conditions of employment are set at an industry or sectoral level, sometimes with the cooperation of industry bodies, even if they are formalised in enterprise-level agreements.
  • The proliferation of “pattern” agreements. Unions can and do force businesses to sign up to slight variations of the same template enterprise agreement, a process repugnant to the idea that agreements are tailored to each enterprise. While unions cannot take industrial action to support “pattern bargaining”, the legislation is cast so narrowly as to offer little real protection against this practice.
  • Power based rather than interest based bargaining. The enterprise bargaining process often involves a “push/pull” exercise of debating claims in an oppositional way, rather than bargaining representatives workshopping creative ways of meeting their needs and desires in a way that is good for staff and the business. Indeed, once the nominal expiry date of an agreement has raised, employees and employers can inflict all sorts of legal damage on each other with strong legal immunities applying to the consequences of that behaviour. The levers within the system encourage rather than discourage oppositional based bargaining. The weak threshold requirements for the taking of protected industrial action do nothing to help the situation.
  • Highly technical rules for making agreements. Employers of all sizes have trouble complying with the scheme for bargaining in the Fair Work Act. These well-intentioned provisions have the effect that, for example, changing the mandatory notice issued to employees at the start of bargaining – even to fix the typos in the template! – can invalidate an agreement, regardless of whether any employee was actually disadvantaged. For many smaller businesses, this and many other potential pitfalls mean that bargaining isn’t worth the hassle. This leaves employers and employees with the default safety net: an industry-level modern award, with standard terms determined by a centralised authority.

So what can be done to put the theory of enterprise bargaining into practice? Taken in isolation, the problems above might be patched up through tweaks to the legislation: put in place stronger protections against sectoral or pattern bargaining; clean up problem industries such as building and construction; relax procedural rules and allow the Fair Work Commission to waive compliance where no harm has been done; or overlay a system of individual statutory agreement making, etc.

On the other hand, perhaps it is time for Australia to look at its policy settings more broadly and decide whether enterprise bargaining as we know it has had its time in the same way as centralised wage fixation ran its race over 20 years ago. This would require the same kind of vision and boldness that was shown decades ago when the system was changed for the better. It would involve looking holistically at the industrial relations system and alternative ways to meet the policy objectives which underpin the legislation. We should not rule out the idea that the system can evolve or be fundamentally altered for the better. History shows that it can be done when the right mix of ingredients are present.

Often enterprise bargaining ends with a deal brokered in circumstances of crisis. Perhaps industrial action and a union media campaign are now viewed as too distracting or expensive. Perhaps management discontent with long negotiations has brought frustration to the fore, and an instruction to negotiators to “end it, get a deal, any deal”.

In these circumstances an employer might have no choice but to “take” the price of whatever deal is being offered – the financial price, the price of new conditions of employment, additional restrictions on operating the business, etc. The cost of continuing the bargaining process is viewed as outweighing the cost of the deal.

Contrast this with an employer who has thoroughly prepared for enterprise bargaining negotiations. This employer knows where their leverage and that of unions and others lies. Their contingency planning is comprehensive. Their communications are insightful and explain their case for change, and the communication channels are well defined and effective. They know their legal options and have been working towards an end goal before enterprise bargaining even started. They have thought through the gains they want to achieve and the pain they are willing to go through to achieve them.

This employer might be under pressure – but they are not in crisis. They will agree to a new enterprise bargain if, and only if, the deal meets their minimum requirements. This employer is a “price maker” – they choose whether to do the deal and the price they pay for the deal because they are not desperate for any deal. And the price paid reflects the value of the deal to the business, wages are based on appropriate indices such as skill level and market forces, productivity gains and the like.

How does an employer become an enterprise bargaining price maker?

The key to success is simple but not easy. It means preparation, investment in planning, and disciplined execution. It means understanding early the cost of the process versus the cost of the deal and recognising the long-term nature of the latter.

We have worked with many clients that have achieved excellent enterprise bargaining outcomes that were previously thought too ambitious. The key was the front end planning that created a path to success and instilled confidence in the approach to achieve it.