There have been some significant changes to Fair Work laws that have the potential to affect your organisation’s policies and procedures as well as employment contracts with your staff. Any delays in implementing these changes could mean you are non-compliant and placing your organisation in a vulnerable position with the Fair Work Commission.
Enterprise Agreement Pre-Approval Process Replaced
The Fair Work Commission has replaced the pre-approval process for enterprise agreements. Instead, they have introduced procedures and a statement of principles to ensure employees are genuinely agreeing to an enterprise agreement.
Changes you need to make:
On the basis of this change, you will need to ensure your employees:
- Are informed about the enterprise bargaining process
- Understand they have the right to obtain representation
- Have received an explanation of the terms of their new enterprise agreement
To ensure any new enterprise agreements are valid, you will need to follow these processes carefully. To avoid problems, we urge you contact us for assistance.
Introduction of Supported Bargaining
Supported bargaining allows employers to collectively negotiate an enterprise agreement if they have distinct common interests. You and your fellow employers will need to apply to the Fair Work Commission for a Supported Bargaining Authorisation.
You cannot obtain a Supported Bargaining Authorisation unless some of your employees have union representation. The employees from each employer must vote to approve the enterprise agreement. If your employees don’t provide a majority vote in favour of the agreement, it won’t be approved and you’ll need to start your own negotiations for a new agreement.
Changes you need to make:
You need to prepare for the possibility of being involuntarily added to another Supported Bargaining agreement. To do this, a union can apply to the Fair Work Commission to add your business to the agreement. In this situation, the union must be able to show that the majority of your employees want to be covered by the agreement.
Intractable Bargaining Declaration Introduced
Essentially, an Intractable Bargaining Declaration means you and your employees will be told what to do if you can’t reach an agreement. Therefore, it’s likely neither side will be happy and you’ll be stuck with an agreement no-one likes. This has the potential to affect your business for years to come.
Changes you need to make:
When negotiating with staff, you need to be open and interested in changing what you currently do. You also need to be completely transparent when explaining any negative impact to your business if you agree to an employee’s request. From there, both sides need to continue talking, making suggestions and seeking alternatives. Otherwise you are at risk of receiving an Intractable Bargaining Declaration.
That’s why we suggest clients seek our advice and even engage us to assist with negotiations. It’s amazing how our third party perspective can find workable alternatives. We can also help to keep the peace if tempers flare.
A New Approach to Boot (aka the Better Off Overall Test)
When evaluating a proposed workplace agreement against the relevant modern award, the Better Off Overall Test will be applied as an overarching consideration. Some other changes of note include:
- Reviewing patterns of work in the foreseeable future. Previously, the Commissioner needed to consider hypothetical situations as well
- The addition of the Reconsideration Safeguard allows the Fair Work Commission to reassess matters if material changes occur that were not considered in the original application
Managing staff and ensuring compliance are complicated!
For specific assistance in how these changes will affect your business, please contact us on 02 8977 4002. If you would like to look up the changes for yourself, the legislation is called Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022.
These changes to the Fair Work Act are significant and need to be actioned now if you wish to remain compliant. Don’t delay. For help, get in touch with End2end Business Solutions – your friendly, practical and knowledgeable HR team.