It is anticipated that the Rudd Government's
"Forward with Fairness" legislation will
be introduced into the federal Parliament in November 2008. Some
detail concerning the content of the legislation has already been
released through ALP policy material and speeches of the Minister
for Employment and Workplace Relations. The proposed legislation
will be subject to close scrutiny and possible amendment in the
parliament due to the government's lack of a clear majority in
Based on the Minister's latest public statements, the new
"bargaining framework" under Forward with
Fairness will commence operation on 1 July 2009. The
agreement-making options under the ALP legislation will be:
Union Collective Agreements
Employee Collective Agreements (a "genuine non-union
agreement" according to the policy material), and
Union Greenfields Agreement (made between the employer and a
union in the case of a "start–up" business or
It will be necessary for all agreements to be approved by Fair
Work Australia, the new institutional body under the proposed
federal legislation, and certain mandatory requirements will apply
in the case of all agreements. For example, Fair Work Australia
must be satisfied that a majority of employees "genuinely
agreed" with the agreement, and that it satisfies a
"better off overall test" when compared with the
underlying award (which appears to be a re-badged "no-
disadvantage test"). Another change is that the present
restriction upon prohibited content which applies under Work
Choices will be removed under the ALP legislation. Instead it will
be possible for agreements to contain reference to any matter that
"pertains to the employment relationship". This will mean
that clauses which allow for payroll deduction of union dues will
be back on the bargaining table in union negotiations. The Minister
has stated that unions will not be free to negotiate about issues
which interfere with managerial prerogative, or which deal with
matters of a political nature (such as the employer's response
to climate change, overseas employees or environmental issues).
The Forward with Fairness legislation will reintroduce the
concept of good faith bargaining into Australian industrial
practice. In essence what this means is that employers can be
forced to the bargaining table – where a majority of
employees have indicated (to the satisfaction of Fair Work
Australia) that they support the negotiation of an enterprise
A union will be able to show that it has majority support by any
means satisfactory to Fair Work Australia.
Once the negotiation process starts, the employer party is
required to bargain in good faith, and this is likely to
Attending and participating at meetings
Disclosing relevant information about the business in a timely
Responding to proposals in a timely manner
Giving genuine consideration to the needs of other parties,
Refraining from unfair conduct.
If an employer fails to comply with its good faith obligations,
an order may be sought through Fair Work Australia.
Civil construction industry employers considering entering a
collective agreement (either directly with employees or with the
AWU or the CFMEU) may prefer to negotiate an agreement before the
"good faith bargaining" laws take effect.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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