A recent decision of the Fair Work Commission (FWC) has highlighted the difficulty many employers will face if they wish to terminate an expired enterprise agreement – even with the overwhelming support of the majority of the employees covered by the expired agreement.
Employers have been put on notice by the FWC that they cannot rely solely on precedent in order to have their enterprise agreements approved. In recent decisions, the tribunal has knocked back enterprise agreement applications - and sought undertakings under the Better Off Overall Test or ‘BOOT’ as it is more commonly known - due to concerns over whether employee entitlements were sufficient, relating to aspects where similar enterprise agreements had previously been approved.
In a recent decision an agreement approval application was refused by Senior Deputy President (SDP) O’Callaghan, due to concerns that the employees to be covered by the proposed agreement had not genuinely understood and agreed to the terms.
The new Guidelines, which apply to all projects that were the subject of an expression of interest or tender let for the first time on or after 1 May 2012, reflect the changes in legislation with the introduction of the Fair Work Act 2009 (FW Act).
Recent decisions of Fair Work Australia (FWA) show that mandatory pre-approval steps must be strictly complied with, otherwise enterprise agreements will not be approved.
Our parent company (ER Strategies Pty Ltd) Director Steve Champion sees the new good faith bargaining requirements as being one of the more important changes introduced by the Fair Work Act , and one that is likely to be seen as a turning point in the Australian Industrial Relations system in years to come.
The devil is always in the detail...watch out for the changes under the Fair Work Act relating to FWA's power to arbitrate disputes, particularly when negotiating an enterprise agreement. Even existing ones may start to mean something different than they did before...
