The changes made by the Secure Jobs, Better Pay Reforms significantly impact the enterprise bargaining process and where the power may sit between parties as part of that process. Most of those changes took effect on 6 June 2023.
Overall those changes are intended to reduce existing barriers to enterprise bargaining (including multi-employer bargaining) and to expand the Fair Work Commission’s powers to resolve bargaining disputes (including by arbitration).
While each industry, operation and bargaining will be different, we have set out below what we see as the key considerations for employers, in particular those who have not previously (or not recently) been at the bargaining table.
1. Preparation is key and must begin now. Employers need to be strategic and prepare as early as possible before commencing bargaining, whether it is initiated by the employer or by a union.
2. Get familiar with the Fair Work Commission’s Statement of Principles on Genuine Agreement and embed those principles into the process.
3. Recognise that the primary protection from being included in multi-employer bargaining is to be a party to an in-term single enterprise agreement. Consider having a new deal in place before an enterprise agreement has passed its nominal expiry date - this removes the risk of protected industrial action or the intractable bargaining processes. Lastly, it will also prevent an employer being later roped-in to a multi-employer enterprise agreement which has already been agreed.
4. Be clear on what they would like to achieve out of the bargain – what are your objectives?
5. With a more limited ability to terminate any enterprise agreement that has passed its nominal expiry date, what an employer agrees to now, may be in place for the longer term. Employers need to carefully consider what concessions they make as part of bargaining.
6. Determine the potential pain threshold for any protected industrial action which may occur. Most employers can withstand some action, so what is worth defending and how could any action be resisted?
7. Pursue and seek to agree critical terms early in the bargaining process and in the first 9 months of bargaining (before the intractable bargaining process may arise).
8. Ensure all key internal stakeholders understand and are aligned with the strategy.
9. Fully engage with employees around the business and bargaining issues, so that the union is not the only source of news. Employers should maintain a focus on convincing their employees and the union that what is being offered exceeds what may be able to be achieved through an arbitrated outcome.
10. Be prepared to justify each claim or each response to a union claim.
11. Keep a record of the bargaining process and all concessions given, which may go to show whether an impasse has been reached. This may also assist if you become involve in an intractable bargaining process.
12. Keep a record of any poor conduct during the bargaining or breaches of good faith bargaining requirements. This will assist if bargaining orders are sought, during any intractable bargaining process, or if an employer is later subject to a roping-in application.
