The government has announced the much anticipated review of the Fair Work Act. Whilst noting the act is working well at the moment this presents an opportunity to see if it can be improved. What all this adds up to is a review that is unlikely to have wholesale changes but it is an opportunity for employers and unions to voice their concerns about aspects of the Act and in some cases to amplify the lobbying that has occurred to date.
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Hot on the heels of the Qantas dispute our clients are seeing five main areas of enterprise bargaining that is of particular concern to them.
The first is the issue of permitted content, that is, what is allowed to be in an enterprise agreement. Under the old work choices legislation it was quite restricted - you couldn’t have clauses about the use of contractors or the like. However, that’s all changed under the Fair Work Act. Employers who are seeking flexibility in their workforce and want to use contractors and labour hire are finding union concerns about job security is leading to protracted negotiations and bitter disputes. Qantas is a good example of that.
The second area concerns good faith bargaining. This concept was introduced in the Fair Work Act and is still evolving. Some employers who are industrially sophisticated and are used to the process are saying its business as usual. Others are saying it is a process driven dead weight. It’s more about tit for tat rather than actual outcomes and unions are quite disappointed that employers can still take a hard line on claims.
The third area of concern is protected industrial action, that is, lawful industrial action. Employers are saying that unions and employees are able to take protected industrial action too soon in the process and that it needs a reasonableness test. For employers, industrial action should be a ‘last resort’. Their concerns were amplified when the Fair Work Australia found that employees could take protected action, even prior to negotiations, in order to get an employer to the table, despite other provisions in the act that compel them to negotiate.
The fourth area actually relates to employer response action. That is, the response taken by employers to industrial action and again the Qantas dispute highlighted this issue perfectly. The unions are saying there should be a degree of proportionality. You should not be able to lock your workforce out simply because, for example in Qantas, we wear red ties and you modify announcements.
And the final issue we are seeing is occurring in the resources, major projects and construction areas where greenfields agreements now must be made with unions whereas under the old law they could just be imposed for a year. And the unions are holding out.In these areas where labour demand is tight, unions can hold out for what employers assert are extravagant claims, thereby delaying projects.
There’s so much more that will be part of this review but these are five areas that illustrate the dynamic nature of workplace relations and which will be closely scrutinised.