Session 3 - ESP Spotlight Series 2024

Changes to bargaining and a move towards multi-enterprise agreements

The new Statement of Principles on Genuine Bargaining is to apply to enterprise bargaining if bargaining commenced or will commence on or after 6 June 2023. Some notable aspects of these changes include:

• An express obligation for employers to explain to employees how the proposed agreement will alter their existing minimum conditions – for example, by providing a comparison of the proposed enterprise agreement and the modern award.
• Significant weight will be given to the union involvement. Although there is no requirement for union members to endorse an agreement, a proposed agreement may be more heavily scrutinised if it is not endorsed by the union members.

Move to multi-enterprise agreements

There are new bargaining streams available for multi-employer agreements. The three multi-enterprise streams include:

1. Single interest employer stream.
2. Supported bargaining stream.
3. Cooperative workplace stream.

We have previously written about these changes – please see our previous article here.

Practical Tip

Employers should consider when to bargain for a replacement enterprise agreement, particularly if the agreement is approaching its nominal expiry date. Employers covered by a current single-employer enterprise agreement cannot be “roped-in” to the multi-employer bargaining streams.

Intractable bargaining declarations and determinations

Historically, it was much more difficult for the FWC to make determinations in bargaining disputes. The Secure Jobs Better Pay Act changes introduced the intractable bargaining scheme which provides the FWC with the enhanced ability to arbitrate intractable bargaining disputes between parties.

To issue an intractable bargaining declaration, the following must be satisfied:

1. A party can only apply for a declaration after the later of either 9 months after the expiry date of the EA, or after 9 months of bargaining.
2. A section 240 application must have been previously made to the Fair Work Commission by the applicant.
3. The Commission must find that there are no reasonable prospects of the parties reaching agreement.
4. It must be reasonable to grant the declaration, considering the parties views, and any other circumstances.

If these are satisfied, the FWC can issue an intractable bargaining declaration. They can also order a further period to negotiate – a post-declaration negotiating period.

Following this, if there is still no resolution, the FWC will receive submissions and evidence and make a binding determination for the matters that remain outstanding between parties.

Any determination the FWC makes must not be a less favourable term than the previous agreement.

New modern award and enterprise agreement model terms

There have also been a number of changes to the NES, and modern awards, including:

• Superannuation terms;
• New casual conversion process from 26 August; and
• Parental leave changes.

The FWC will also be making new model flexibility and consultation terms next year – so watch this space!

Compulsory conciliation conferences in protected action ballot matters

When an application for a protected action ballot is made, parties must now attend a compulsory conciliation conference before protected industrial action can be taken.

The aim behind this change is to encourage agreement and prevent parties from becoming entrenched in their respective positions.

There is an expectation that the parties will take genuine steps toward resolution in these conferences.

New rights and protections for workplace delegates

From 1 July 2024, workplace delegates have had new rights and protections afforded to them in modern awards. Some notable additions include:

• An express right of delegates to represent employees;
• Access to office facilities (where reasonable); and
• Up to five days paid leave for initial delegate training, followed by 1 day per year.

Delegate training will be subject to conditions, including:

• Only one delegate per 50 eligible employees can access the paid leave;
• Delegate must give the employer 5 weeks’ notice of the subject matter, start and finish times of the training;
• Delegates must provide the employer an outline of the training content, if requested; and
• Delegates must provide evidence of training attendance within 7 days.

Key Takeaways

The move toward multi-enterprise agreements may result in unions seeking to enhance their bargaining position by seeking “collective” conditions.

The FWC has a greater role in resolving bargaining disputes through the intractable bargaining declarations and determinations scheme and expects parties to genuinely participate in compulsory conciliation conferences before protected industrial action can be taken.

Changes to the NES, modern award, and model terms mean that employers should take particular care when reviewing agreements and employee rights to ensure they will be in a position to satisfy the Better Off Overall Test.

Finally, there is a significant shift for workplace delegates from a supportive role to a more active role in the workplace, with more rights.