By Alexandra Marriott
In the last few months, I’ve spoken to hundreds – possibly thousands – of people about the Fair Work Act 2009.
Our various constituents, members and clients have raised many concerns but, broadly speaking, these fall into two key categories (which appear to be universal, irrespective of the size or industry of an enterprise):
- The changes to enterprise bargaining introduced by good faith bargaining obligations under the Fair Work Act; and
- The scope of award coverage likely to be introduced by the implementation of modern awards in January 2010.
These questions generally lead to extensive debate, with conclusions that are inevitably troubling for employers.
I’ve typically responded to the questions about good faith bargaining by pointing to some early examples of enterprise bargaining in sectors perceived to be non-industrialised and non-unionised. These are helpful examples that demonstrate how good faith bargaining functions in the absence of enterprise and/or industrial bargaining.
I’ve also provided hypothetical scenarios that, retrospectively, I should have gambled on.
My most frequently-cited hypothetical scenario involves a group of clerical workers who propose an enterprise agreement, and seek a majority support determination accordingly. In this hypothetical scenario, the employer would be required to commence bargaining around the proposed agreement ‘in good faith’, by virtue of the good faith bargaining provisions of the Act.
This hypothetical scenario now appears to have gained some traction in a real-life instance. As reported by The Australian, the United Firefighters Union is seeking an order requiring its Melbourne employer to negotiate a single enterprise agreement that would cover not just operational employees, but also managerial staff at middle- and senior-management levels.
The AIG and ACTU have both applied to intervene in the case; the key argument appears to consist of whether there is ‘common interest’ between the parties covered. If Fair Work Australia makes a scope order, this issue may well be resolved.
In my view, the conclusion of the theoretical and procedural issues which Fair Work Australia will grapple appears to be resolved – inasmuch as the provisions for bargaining under the Fair Work Act are committed to facilitating enterprise productivity and flexibility and, in many ways, are purposive in their breadth.
But this leads to an interesting implication: is the Fair Work Act 2009 likely to impact categories/classes of employees not previously engaged in enterprise bargaining and industrial action? If so, will this impose greater regulation and cost, or will it increase productivity?
I read with interest the review of the Fair Work Act in the recent issue of the VECCI training directory.
Our experience of the new FWA is that it is nothing more than a Government sanctioned cash grab for disgruntled employees. The employer is encouraged and intimidated into a settlement with the employee in order to “make the matter go away”. It does not seem to matter how trivial or vexatious the conditions of the employees claim may be; the prevailing sentiment of the conciliation process is that there is an almost implicit expectation that the employee has been unfairly dealt with and deserves some compensation.
The mediators act to expedite a settlement and payment. They were not, in our experience, forthcoming with information as to what grounds were within the FWA umbrella, necessitating us to seek advice from consultants, adding to the cost and burden of defending the action. Little wonder employers will pay disgruntled employees to “go away”; and all with the sanction of the Government.