'It is likely that we will see more industrial action, which could have greater impact than we have seen before'
Employers have only a few weeks left to prepare for the Secure Jobs, Better Pay Bill, which comes into effect on June 6.
The Fair Work Legislation Amendment changes workplace relations laws relating to bargaining, job security, gender equity, compliance and enforcement, workplace conditions and protections and workplace relations institutions.
“The biggest change is the expansion of the concept of multi-enterprise bargaining and the expanded ability for employees and unions to force employers to bargain for agreements covering multiple employers including potentially competitors,” Jo Alilovic, Director 3D HR Legal, said.
“The upcoming changes mean that employers will have fewer options to resist bargaining, and they can get locked into a bargaining process.”
Currently, employers can unilaterally decide to put an agreement to the vote, she said, but under the new provisions for multi-enterprise bargaining, all employee representatives will need to consent before voting can occur — unless the Fair Work Commission makes a voting request order.
“It is also likely that we will see more industrial action, which could have greater impact than we have seen before where the action spans multiple employers in the same industry,” Alilovic said.
Finally, the upcoming changes mean that employers may get “roped in” to single-interest employer agreements even after they are made, she said.
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Employer groups have voiced their disappointment about the sweeping changes to industrial relations laws in Australia.
Two categories of agreements
A registered agreement sets out the terms and conditions of employment between an employee or group of employees and one or more employers. Under the national workplace relations system there are two categories of agreements: enterprise agreements and agreement-based transitional instruments.
The FWC describes agreement-based transitional instruments as various individual and collective agreements that could be made before 1 July 2009 under the former Workplace Relations Act 1996. They also include Individual Transitional Employment Agreements (ITEAs) that were made during the 'bridging period' (1 July 2009 - 31 December 2009). These agreements will continue to operate as agreement-based transitional instruments until terminated or replaced.
Agreement-based transitional instruments include collective agreements, pre-reform certified agreements (that is, those made before 27 March 2006), preserved individual and collective state agreements, Individual Transitional Employment Agreements (ITEAs) and Australian Workplace Agreements (AWA).
The array of agreements is usually spread across industries depending on the needs and demands of employees and their union representatives.
The Secure Jobs, Better Pay act will also lift the lid on the secrecy of employee salaries and allow for more transparent conversations with employers.
Collective power for bargaining
“Enterprise bargaining increases the power of employees,” Alilovic said. “Rather than trying to negotiate on their own individual basis, they can use their collective power to negotiate terms and conditions that are beneficial for everyone in the workplace, with the threat and force of potential industrial action behind them.”
An enterprise agreement is between one or more national system employers and their employees, as specified in the agreement. Enterprise agreements are negotiated by the parties through collective bargaining in good faith, primarily at the enterprise level. Under the FW Act, an enterprise can mean any kind of business, activity, project or undertaking.
Under the new FW Act, single-enterprise agreement, a multi-enterprise agreement and a Greenfields agreement can all now be made.
“Big employers will continue to be the main focus for enterprise bargaining and there will be restrictions in place to protect smaller businesses,” Alilovic said. “For example, small businesses, with less than 20 employees, will be exempt from being added to single-interest employer authorisations.”
On the other hand, if a union makes an application for a single-interest employer authorisation, “the new laws provide that an identifiable common interest is presumed for employers with 50 employees or more,” she said.
“An employer in that situation would bear the onus of establishing their operations/activities are not reasonably comparable to the other employers.”
Overall, the changes open up enterprise bargaining to businesses “that previously may have been thought to be an unlikely candidate and it will be harder for many larger employers to avoid enterprise bargaining,” Alilovic said.