It is worth noting that under the original timetable of the Hon Tony Burke MP for the Closing Loopholes Bill, it would have been passed as law this week.
Instead, in the face of Senate scrutiny, the Bill was pushed into Committee for examination until February 2024. In the time since, fundamental problems with the
Across a range of disciplines, the Fair Work Amendment (Secure Jobs, Better Pay) Act 2022 will bring a paradigm shift. Indeed, on our count, there are thirteen new civil penalty laws aimed at employers arising from new obligations.
But the most profound change will be in the area of workplace bargaining as our previous blogs
In our previous blog on the Secure Jobs, Better Pay Bill, Darren Perry explained that the Bill would change the workplace landscape if passed. Why that is, we will explore here.
Let’s put aside the greater regulatory burden on employers for now. We will deal with that in an upcoming blog. For now, let’s say
Make no mistake about it, the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022 is the most significant thing to happen to this country’s industrial relations landscape since John Howard’s WorkChoices in 2005.
In fact, the Bill is the most significant development since the introduction of enterprise bargaining in 1993, when Paul Keating
Lots has been said recently in the press about enterprise agreement making and the approval process by the Fair Work Commission (FWC). In short, the numbers of agreements being made is down and approval times are “long”. The graph below, recently cited in an AFR article, demonstrates a possible link between approval times slowing and
So what’s the outlook for enterprise bargaining in Australia? Here’s the top 7:
“It has become increasingly difficult to make
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?
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.Continue Reading United we stand. But lawfully.
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