As we head into another round of bargaining with the major employers, it is a perfect time to refresh your knowledge on the basics. The Fair Work Act 2009 establishes a set of clear rules and obligations about how this process is to occur, including rules about bargaining, the content of enterprise agreements, and how an agreement is made and approved.
What is an Enterprise Agreement?
It is an agreement negotiated at the ‘enterprise level’ between employees (unions are default bargaining representatives) and their employer. Often employees will also have a contract of employment, and employers will have company policies which apply in conjunction with the enterprise agreement. Contracts of employment and company policies cannot provide terms that are less beneficial than terms which are contained in an enterprise agreement.
What can be included in an Enterprise Agreement?
An enterprise agreement sets out the terms and conditions of employment between employees and their employer. However, there are limitations and mandatory requirements which must be met for an enterprise agreement to be approved by the Fair Work Commission. An enterprise agreement cannot be approved with a nominal expiry date of more than four years from the date of approval.
Mandatory terms include a disputes settlement procedure, a flexibility term, and a consultation term. Each of these terms must also meet other
criteria, for example, the dispute settlement procedure must allow for either the Fair Work Commission or another person that is independent of the parties to settle disputes in relation to the National Employment Standards.
If each of the mandatory terms do not meet the requirements, the Fair Work Commission can in some circumstances replace the term at the approval stage with a ‘model clause’. There are also restrictions on terms which cannot be included in an enterprise agreement that are deemed ‘unlawful’. These include but are not limited to terms which are discriminatory, terms which provide entitlements or remedies in relation to unfair dismissal before an employee has completed the minimum employment period, terms that exclude, or modify, the application of unfair dismissal provisions in a way that is detrimental, terms which confer right of entry entitlements, and terms which are inconsistent with industrial action provisions.
What are the rules in relation to how the parties act during bargaining?
Parties are required to act in ‘good faith’ when conducting bargaining.
The requirements of ‘good faith’ are as follows:
- Attending and participating in meetings at reasonable times.
- Disclosing relevant information (other than confidential or commercially sensitive information) in a timely manner.
- Responding to proposals made by other bargaining representatives for the agreement in a timely manner.
- Giving genuine consideration to the proposals made by other bargaining representatives, and giving reasons for any responses to those proposals.
- Not behaving in a capricious or unfair way that undermines freedom of association or collective bargaining.
- Recognising and bargaining with the other bargaining representatives for the agreement.
The good faith bargaining requirements do not require a bargaining representative to make concessions during bargaining for the agreement or reach agreement on the terms that are to be included in the agreement.
What if my employer will not agree to our claims?
If negotiations reach an impasse, one of the options is an application to the Fair Work Commission for a protected action ballot. This is the process in which members are asked to vote on several different types of industrial action, which can include partial work bans, and full stoppages.
One thing you can do now to ensure your rights can be exercised if needed, is to ensure your address details with your employer and your union are up to date!
If you have questions regarding enterprise bargaining, reach out to your delegate, organiser
or the office.