Collective Bargaining

    The changes include:
  • introduction of good faith bargaining;
  • greater flexibility for the content of agreements;
  • creation of a singles stream of agreement making;
  • streamlined process for approval;
  • new concept of “low paid” stream.


Introduction of good faith bargaining

The Bill will require employers to inform employees of their right to be represented at the commencement of bargaining.  If a majority of the employees wish to collectively bargain, an employer will be required to bargain with them and their representative (usually a Union).

During agreement making where representatives are failing to bargain in good faith, FWA will be empowered to make orders, however such orders will not force bargaining representatives to make concessions or sign up to an agreement. 

FWA will have the power to make workplace determinations if it believes there have been serious and sustained breaches of bargaining orders and those breaches have seriously undermined bargaining for the agreement.

Less regulation regarding the content of agreements

The matters that can be included in an agreement is expanded to include:

  • matters pertaining to the relationship between the employer(s) and employees to be covered by the agreement;
  • matters pertaining to the relationship between the employer(s) and employee organisation(s) to be covered by the agreement;
  • deductions from salary for any purpose authorised by the employees who will be covered by the agreement (e.g. salary sacrifice, union fees);
  • how the agreement will operate.

There is no concept of ‘prohibited content’ in the Bill.  As long as a matter meets the content rule then it can be included in an agreement.

Enterprise agreements will be required to include an individual flexibility arrangement and consultation clause where major change is considered.

To approve an agreement FWA must be satisfied it includes a procedure that requires FWA or another person independent from all parties to the agreement to settle disputes about any matter in the agreement.

Agreements will have a notional expiry date of no later than four years after the date of operation. 

The creation of a single stream of agreement making

Under the Bill there will be no distinction between union and non-union agreements.

A union who represents workers and was the bargaining representative for a proposed agreement may notify FWA in writing it wants to be covered by the agreement.  When a union is covered it will be able to enforce the terms of the agreement.

Greenfield agreements can still be made, however a union or unions (that is eligible to represent the workers) must be a party.

A streamlined process for the approval of agreements

Under the Bill all enterprise agreements must be lodged with FWA for approval before the commence operation, and will commence operation 7 days after it is approved.  FWA will ensure that:

  • there is genuine agreement;
  • the group of employees covered by the agreement was fairly chosen;
  • the agreement passes the ‘Better Off Overall Test’ (BOOT);
  • the agreement contains a nominal expiry date and dispute settlement clause;
  • no terms of the agreement contravene the NES; and
  • the agreement does not contain unlawful content.

FWA will apply the BOOT to ensure that each employee covered by the agreement is better off overall in comparison to the relevant modern award.

The introduction of FWA facilitated bargaining for the low paid

Under the Bill, FWA will be able to facilitate multiple employer bargaining for low paid employees.