One observation was the importance of “patience“ – with which we would wholeheartedly agree.
So it got us thinking about ingredients for success.
Here are some key ones, borrowed from our
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:
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?
The 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.
Continue Reading Agreement terminations on the up – 5 union response strategies
Are we in the beginnings of a cyclical upswing in industrial action in 
Australia? And if so, what does it mean for those involved in competitive tender processes?
Data from the ABS indicates that the last spike in industrial disputes occurred in September 2012, with around 110,000 working days lost. The sense that there may be another spike coming correlates with the enterprise agreement life cycle, as enterprise agreements typically expire after 3 or 4 years. Many businesses are currently engaged in, or planning for, negotiations for the next round of agreements.
Continue Reading Love me tender – how IR is a key point of difference
Aurizon, previously a government owned entity, operates in the rail industry. The company had been bargaining in relation to numerous enterprise agreements. Part of the company’s bargaining platform was to be relieved of onerous restrictions on management, many of which were legacies of its public sector origins. The changes were resisted and the bargaining became intractable.
In an effort to overcome the legacy arrangements, Aurizon applied to the Fair Work Commission to terminate the agreements.
Continue Reading Aurizon: Operating in perpetuity not in the public interest
Restructuring or re-organising a business is common. Companies make these changes for a variety of reasons – to change the business model, pursue operational improvements, reduce cost, and/or make optimum use of available resources. It’s also increasingly likely that displaced employees will be given the opportunity to transfer between related group companies. Employers seeking to rely on the redundancy exemption to the unfair dismissal provisions in the Fair Work Act 2009 (FW Act) will need to consider redeployment options within group companies.
Continue Reading Simplifying transfer of business within group companies
Understanding the true boundaries of the enterprise agreement zone (“EA zone”) and the “workplace zone” is crucial to the development of any workplace relations or enterprise bargaining strategy.
Continue Reading The enterprise bargaining zone & the ‘twilight zone’