EWD CONSULTING BULLETIN – DECEMBER 2022
EWD Bulletin December 2022 – Comprehensive Changes to Industrial Relations Legislation – Enterprise Bargaining
Comprehensive Changes to Industrial Relations Legislation – Changes to Enterprise Bargaining
The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth) (Act) became law on 6 December 2022.
The Act has resulted in comprehensive changes to industrial relations legislation in Australia.
A general summary of the changes to Enterprise Agreements which is not a detailed outline is as follows:
Types of Enterprise Agreements:
1) Single enterprise agreements
What has changed?
The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 amends the Fair Work Act 2009 (the Act) by removing the requirement for employee bargaining representatives, such as a union, to obtain a majority support determination from the Fair Work Commission (the Commission) to initiate bargaining in certain circumstances.
Under the changes, a bargaining representative who will be covered by a proposed single-enterprise agreement can give an employer a written request to bargain if:
the proposed agreement will replace an earlier single-enterprise agreement that has passed its nominal expiry date
- a single interest employer authorisation did not cease to be in operation because of the making of the earlier agreement
- no more than 5 years have passed since the nominal expiry date, and
- the proposed agreement will cover the same, or substantially the same, group of employees as the earlier agreement.
When these requirements are met, employers are required to bargain with employees for a new enterprise agreement in good faith.
The new provisions do not apply to bargaining for a greenfields agreement.
What do these changes mean?
These amendments will effect single-enterprise agreements. This new method for initiating bargaining broadly only applies where the proposed and replacement agreements are both single-enterprise agreements.
When will these changes come into effect?
These changes came into effect on 7 December 2022.
2) Cooperative Workplaces Bargaining Stream – Multi Employer Bargaining
What has changed?
The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 amends the Fair Work Act 2009 (the Act) in relation to access to multi-employer bargaining. The existing multi-employer bargaining stream has been renamed the Cooperative Workplaces Bargaining Stream and participation in the stream remains voluntary.
Under the Cooperative Workplaces Bargaining Stream, at least some employees involved in bargaining must be represented by a registered employee organisation and cooperative workplaces agreements must be approved by a majority vote of employees of each employer and pass the Better Off Overall Test. Businesses can choose to opt-in to an existing agreement with the support of a majority vote of employees.
Protected industrial action is not available under the Cooperative Workplaces Bargaining Stream and conciliation and arbitration of bargaining disputes by the Fair Work Commission can only occur with the consent of all parties.
What do these changes mean?
Employee bargaining representatives (including employees and unions) will be able to initiate bargaining in the multi-enterprise agreement stream.
When will these changes come into effect?
These changes will come into effect on 6 June 2023, or an earlier date to be fixed by proclamation.
Action by Employers
Employers should direct any questions relating to the changes and development of appropriate strategies regarding Enterprise Bargaining to Ted Davis, Director, EWD Consulting 0401 155 745.
