A research team was commissioned by Fair Work Australia, now the Fair Work Commission (FWC), to prepare a report on the enterprise bargaining process under the Fair Work Act 2009 (Cth).

The 168-page report “Fair Work Australia’s Influence in the Enterprise Bargaining Process” can be accessed at: http://www.fwc.gov.au/index.cfm?pagename=admingmreporting&page=research.

The key take-away points from the report are:

  • The number of people covered by enterprise agreements (EAs) is increasing – at June 2009 there were 2 million employees covered by EAs, and now there are almost 2.5 million employees covered.
  • The number of EAs lodged between 2009 and 2011 has remained largely consistent.
  • Almost 75% of all applications dealing with EAs (including disputes about good faith bargainingand the scope of the agreement) are lodged by unions.
  • The most common applications made to FWC are those enabling the FWC to mediate, conciliate, express an opinion or resolve an industrial dispute. Unions are more likely to make this type of application than employers.
  • FWC’s decisions have revealed a reluctance to interfere in determining the employees to which an EA will cover and have emphasised the employer’s interest in having one EA applying to the entire workforce rather than multiple EAs applying to different groups of employees.
  • FWC’s decisions reveal a general reluctance to rule that parties are not bargaining in good faith.

Overall, the report concludes that the role played by the FWC in the enterprise bargaining process is overwhelmingly facilitative rather than determinative. For example, the enterprise bargaining provisions that are most effective in resolving disputes are those that allow the FWC to conciliate or give an opinion about a matter rather than making formal orders. Even where there is an application for orders before the FWC it tends to conciliate the dispute before dealing with the formal application.