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 the Senate.

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 business part/undertaking).

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 agreement.

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 involve:

  • Attending and participating at meetings
  • Disclosing relevant information about the business in a timely manner
  • Responding to proposals in a timely manner
  • Giving genuine consideration to the needs of other parties, and
  • 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.