Australia: Fair Work Australia – Some Recent Developments

Last Updated: 6 October 2009

Recent decisions of FWA suggest employers are still coming to grips with some of the key changes introduced by the Fair Work Act 2009 (Cth) (FW Act). The recent campaign of the Australian Manufacturing Workers Union (AMWU) regarding flexibility clauses, notwithstanding that they are a mandatory requirement of enterprise agreements, suggests the unions are also finding the new regime challenging. Flexibility clauses essentially permit some flexibility around hours and penalty rates to accommodate family friendly arrangements. For example, arrangements could be made to allow an employee to start early and leave early in order to coach a junior sporting team without receiving penalty rates for the earlier start.

Other changes we have noticed include the reappearance on the bargaining table of demands for matters that were previously prohibited content, for example, specific representational rights of unions and a more significant role in consultation about any change proposals. It is important to remember that the FW Act now allows an application to be made to the Federal Court for an injunction in respect to an alleged breach of an enterprise agreement or alleged breach of the general protections.

We encourage employers to pause during bargaining and understand that changes such as the ability of Fair Work Australia (FWA) to hear a broader range of disputes under its settlement of disputes powers and the ability to seek injunctions in respect to enterprise agreements are very different to the pre-reform regime. For example, a broadly worded dispute resolution clause may mean that FWA is able to arbitrate on the substance of a dispute. This is particularly important for employers renewing pre-reform agreements where the Commission was limited in the disputes it could entertain. The disputes that can be dealt with by FWA, depending on the scope of the clause in the enterprise agreement, may include arbitrating proposals to introduce a change in the workplace. Further, such proposals may also be stopped by a court if an argument arises that the change is in breach of consultation clauses. How these clauses are now drafted has become a critical issue.

In a number of recent decisions FWA has considered the good faith bargaining requirements and the requirements for a protected action ballot order. In the following we look at some of the recent developments concerning the application of the new laws.

FWA considers bargaining

FWA has now had occasion to consider a number of aspects of the new bargaining regime. We have discussed with clients the substance of the changes, especially the new rules around bargaining in good faith and how these provisions may also affect whether a party has been genuinely seeking to reach agreement when assessing an application for a protected action ballot. Other key changes relate to the ability for a bargaining representative or employer to seek to set the scope for an agreement.

In NUW v Defries Industries Pty Ltd Commissioner Whelan made the following observations about the good faith bargaining requirements in the FW Act:

  • The requirement to participate in meetings suggests a sharing of information and views and a willingness to discuss the matters about which the other bargaining representative wishes to bargain.
  • The requirement to disclose relevant information in a timely manner is to allow the other bargaining representative to give consideration to the other's position. This obligation includes disclosing a document that included the company's position on what was and what was not negotiable. The obligation is not limited to responding to requests for information.
  • Circulating an agreement directly to employees for the purpose of a vote without notice to a union bargaining representative will amount to unfair conduct undermining freedom of association and collective bargaining and a breach of the good faith bargaining requirements.

Commissioner Whelan again emphasised the importance of disclosure of information in Alphington Aged Care and Mary McKillop Aged Care when dealing with an application to approve enterprise agreements. In this case the employer had been negotiating with the ANF (union) regarding a new agreement. Following the enactment of FW Act the employer did not provide the appropriate notice of representational rights nor did it inform the union it intended to conduct a vote of its employees over its proposed offer. Commissioner Whelan found that a decision to put an agreement directly to employees whilst ostensibly still bargaining with a bargaining representative is relevant information that must be disclosed under the good faith bargaining requirements.

However, an important distinction between US labour law and Australian good faith bargaining requirements in respect to communicating directly with employees was noted by Commissioner Whelan in AMWU v H J Heinz Co. Commissioner Whelan stated that there is nothing in the FW Act that prevents an employer canvassing the views of employees about issues in dispute. This is different than putting an agreement to a vote for approval.

Protected action ballots

There have been a large number of applications for protected action ballots. Many applications have been made by the AMWU particularly in the manufacturing sector in Victoria. It was therefore timely that Vice President Watson in NUW v FreshExchange Pty Ltd provided guidance on the requirement for clarity in the questions to be put to employees when voting pursuant to a protected action ballot order. Watson VP found that the FW Act requires an application for a protected action ballot order to propose a question and contain other details about the industrial action and other relevant matters that will permit employees to make an informed choice on whether to authorise the particular action specified in the question.

A question which is ambiguous, or does not permit such a result, will not comply with this requirement. An example of this may be a question with various types of industrial action rolled up and set out in the one question. FWA has also recognised that whether a party has complied with the good faith bargaining requirements may be relevant to whether it is genuinely seeking to reach agreement. The cases highlight the importance of understanding the application of these requirements.

It is also plain that an employer's plans can be seriously disrupted and effort wasted if parties do not comply with the new bargaining provisions.


We have prepared guides to critical areas of the new laws - The Workplace Guide to Bargaining under the FW Act, The Workplace Guide to the General Protections, The Workplace Guide to Right of Entry and The Workplace Guide to Responding to Industrial Action.

© DLA Phillips Fox

DLA Phillips Fox is one of the largest legal firms in Australasia and a member of DLA Piper Group, an alliance of independent legal practices. It is a separate and distinct legal entity. For more information visit

This publication is intended as a first point of reference and should not be relied on as a substitute for professional advice. Specialist legal advice should always be sought in relation to any particular circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:
  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.
  • Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.
    If you do not want us to provide your name and email address you may opt out by clicking here
    If you do not wish to receive any future announcements of products and services offered by Mondaq you may opt out by clicking here

    Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

    Use of

    You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


    Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

    The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


    Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

    • To allow you to personalize the Mondaq websites you are visiting.
    • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
    • To produce demographic feedback for our information providers who provide information free for your use.

    Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

    Information Collection and Use

    We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

    We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

    Mondaq News Alerts

    In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


    A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

    Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

    Log Files

    We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


    This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

    Surveys & Contests

    From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


    If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


    From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

    *** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


    This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

    Correcting/Updating Personal Information

    If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

    Notification of Changes

    If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

    How to contact Mondaq

    You can contact us with comments or queries at

    If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.

    By clicking Register you state you have read and agree to our Terms and Conditions