The Fair Work Act 2009 has changed the rules that govern agreement bargaining for employers, employees and unions. Building industry participants should be aware of these changes.
In summary, the Fair Work Act (FW Act):
- gives a significant role to bargaining representatives
- requires good faith bargaining
- removes the bargaining period
- provides a number of triggers for when bargaining begins
- facilitates collective bargaining at the enterprise level.
The following questions and answers are designed to assist building industry participants understand the new enterprise agreement laws.
1. Who is a bargaining representative?
A bargaining representative is defined as:
- an employer that would be covered by the agreement
- a union thar has a member who would be covered by the agreement (unless the member has chosen to appoint another person)
- a union that has applied for a low-paid authorisation in relation to the agreement, or
- any person appointed in writing by an employer or employee who would be covered by the agreement.
Employees are represented by their selected bargaining representative in the bargaining process and may directly participate in negotiations and instruct their bargaining representative as they see fit.
2. When does bargaining begin?
The bargaining process starts when:
- an employer initiates bargaining
- an employer agrees to bargain, or
- one of the following applies to an employer:
- a majority support determination – a ruling by Fair Work Australia (FWA) that a majority of employees support collective bargaining for an agreement
- a scope order – a ruling by FWA that certain classes or groups of employees are inside the scope of a proposed enterprise agreement, or
- a low-paid authorisation – a ruling by FWA that gives low-paid employees access to collective bargaining processes.
3. Do employers have to initiate bargaining?
No. However, an employer may wish to bargain and may initiate bargaining or agree to a request to bargain from a bargaining representative.
If an employer does not agree to bargain, a bargaining representative may start the bargaining process through FWA by:
- obtaining a majority support determination
- obtaining a scope order
- obtaining a low-paid authorisation.
4. What happens once bargaining begins?
The employer must take all reasonable steps to give notice to employees of the right to be represented by a bargaining representative. This must be done as soon as practicable and within 14 days.
The content of the notice of representational rights is prescribed by the Fair Work Regulations 2009.
5. What happens after the notice is distributed?
Once all employees are notified voting cannot take place for at least 21 days.
At least seven days before the vote the employer must ensure that the employees have access to the proposed agreement.
An enterprise agreement is made when a majority of employees who cast a valid vote approve the proposed agreement.
The enterprise agreement must be submitted by a bargaining representative to FWA for approval.
6. What if an employer does not distribute the notice to employees?
A bargaining representative might seek a good faith bargaining order from FWA. That order may exclude the employer from bargaining or require the employer to take certain action in the bargaining process.
7. If an employer doesn’t comply with the good faith bargaining order, what might happen next?
A bargaining representative, employee or inspector may prosecute the employer in court. The maximum penalties for a breach of the order are:
- $33,000 for a body-corporate
- $6600 for an individual.