'Employers really need to reconsider bargaining strategies to guard against some of the potential implications of these new provisions'
There has been a steady stream of workplace law reforms across Australia over the past year.
For one, the federal government introduced the Fair Work Legislation Amendment (Closing Loopholes) Bill 2023 to parliament, which proposes changes to the definition of a casual employee and the so called ‘same job, same pay’ regime which aims to protect bargained outcomes.
“The ‘same job, same pay’ regime will allow a union most likely to make an application that that bargained outcome applies to employees doing that type of work at that employer, regardless of whether they're direct employees or not,” Julian Arndt, director at Australian Business Lawyers and Advisors said.
And last December, the federal government passed the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022, which prohibited pay secrecy and sexual harassment in the workplace, limited the length of fixed term contracts, and introduced new enterprise agreement and bargaining laws, among other reforms.
“The ongoing reforms, including the ‘secure jobs, better pay’ amendments and closing the loopholes, proposed amendments are clearly the biggest changes to the Australian IR landscape since the Fair Work Act replaced the Workplace Relations Act,” David Woodman, partner at law firm MinterEllison told HRD Australia.
“And while those amendments and proposed amendments are wide reaching, one of the key areas that has been significantly impacted is enterprise bargaining, both in relation to the actual process for making and having agreements approved, and also the broader dynamics within which bargaining occurs.”
There are four key areas under the new laws that change the bargaining dynamic, said Woodman, who will be one of the speakers at HRD’s upcoming Employment Law Masterclass in Melbourne.
“Some of the key changes include making it easier for employees and unions to commence bargaining, introducing an additional path to arbitration following the making of an intractable bargaining declaration, further limiting the circumstances in which enterprise agreements can be terminated, and reducing the hurdles for bargaining in relation to multi-enterprise agreements,” he said.
“Within that new bargaining framework, employers really need to reconsider bargaining strategies to guard against some of the potential implications of these new provisions. And the best strategies to adopt will depend on a range of factors including what employers are actually seeking to achieve through a particular bargaining process.”
Woodman added that the practical implications of those changes are still playing out.
“We’ve seen some of the first decisions utilising some of these new provisions over the last week,” he said, “with the first authorisation for supported bargaining in relation to a multi-enterprise agreement handed down last week.”
While the bargaining agreement laws are only recent – some of them taking effect June this year – they have further empowered employees in relation to bargaining by removing some of the hurdles that previously existed and providing them with some additional tools, said Woodman.
“Anecdotally, that's resulted both in an uptick in bargaining and also unions adopting more ambitious bargaining positions.”
For employers, the key is to be prepared.
“The shift in power towards employees and unions really reinforces the need for employers to be comprehensively preparing for bargaining and also to be preparing earlier than they might otherwise have done so in the past,” he said.
At the Employment Law Masterclass in Melbourne on November 30, Woodman will be discussing the topic: “Updates to the enterprise bargaining framework and multi-employer agreements,” including how the ‘secure jobs, better pay’ legislation will affect the negotiation and implementation of enterprise agreements.
The session will also touch on:
“[HR teams] definitely need to be aware of the changes that have been made,” Woodman said. “And hopefully, in most cases, they will already be aware of the actual changes to the legislation. But they now need to be very conscious of the way that those provisions are being applied by the Fair Work Commission and the differences in behaviour that they are driving in unions and employees.”
