The Fair Work Bill aims to promote the following in its objects:

  1. a single flexible framework to enable collective bargaining in good faith; and
  2. the facilitation of good faith bargaining and the making of enterprise agreements by Fair Work Australia (FWA).

The most notable features are:

  • Content – The old prohibited content rules disappear. Agreements may include content about "permitted matters". This includes matters pertaining to the relationship between the employer and union (as well as between employer and employees). This will see the reintroduction of many old prohibited content items. Deductions of union dues from wages are specifically allowed. "Unlawful terms" cannot be included. This includes terms dealing with right of entry.
  • Joint Venture/Common Enterprise Agreements – The Act encourages the use of joint venture agreements by 2 or more employers that are "single interest employers".
  • Greenfields Agreements – Greenfields agreements will continue but in a far more restricted capacity, as they can only be entered into with a union.
  • Approval – Application must be made to FWA to approve agreements. Agreements must pass a new "better off overall" test, that replaces the no disadvantage test. The test requires each employee and prospective employee to be better off overall than if the relevant modern award applies.
  • Flexibility and Consultation re workplace changes clauses – Each agreement must include an individual flexibility arrangement, in order to meet the genuine needs of an employee and the employer plus a term requiring employers to consult about major workplace changes likely to have a significant effect on employees. If no such terms are included, model terms are deemed to be included.
  • Good faith bargaining – An employer must not refuse to bargain with another bargaining representative. This is aimed at preventing employers from refusing to bargain with a union. FWA is given a comprehensive role in facilitating bargaining, according to good faith bargaining requirements. These include requirements relating to attendance and participation at meetings; disclosing relevant non-confidential information; genuinely considering proposals; timely responses to proposals; and refraining from capricious and unfair conduct. FWA may make a wide variety of orders to ensure that the parties meet good faith bargaining requirements.

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.