Workplace determinations — what are they?

Analysis

Workplace determinations — what are they?

The expectation under the Fair Work Act is that bargaining, in the majority of cases, will result in an enterprise agreement being submitted to FWA for approval. However, in unusual cases, FWA can determine terms and conditions (ie make workplace determinations), after specific requirements are met.

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The expectation under the Fair Work Act is that bargaining, in the majority of cases, will result in an enterprise agreement being submitted to Fair Work Australia (FWA) for approval. However, in special or unusual cases, there is capacity for FWA to determine terms and conditions (referred to as workplace determinations), but only after specific requirements are met.

Under the legislation, there are three specific kinds of workplace determination:
  1. an industrial action related workplace determination
  2. a bargaining related workplace determination
  3. a low-paid workplace determination.
The Fair Work Act 2009 provides that FWA must be constituted by a Full Bench for the purpose of making a workplace determination.

The workplace determination provisions of the Act set out the scope of the merits of arbitration required of FWA, including the content of workplace determinations.

Terms of a workplace determination
 
Under the Fair Work Act (ss267 and 268), only four types of terms may be included in a workplace determination, these being:
  • agreed terms (s267(1)(a) and (2)) — an agreed term is ‘a term that the bargaining representatives for the proposed enterprise agreement concerned had, at the end of the post-industrial action negotiating period agreed should be included in the agreement (s274(2))
  • arbitrated terms regarding the matters in issue (s267(1)(a) and (3)) — the determination must include the terms FWA considers deal with the matters that were still at issue at the end of the post-industrial action negotiating period.
  • core terms (s267(1)(b)) — see below 
  • mandatory terms (s276(1)(c)) — see below.
FWA must make a workplace determination.

The workplace determination must include the terms that were agreed by the parties, and terms that FWA arbitrates relating to the matters remaining in issue.

Once it is made, the workplace determination has the same effect as an enterprise agreement.

Core terms of a workplace determination
 
The determination must include a term specifying a date as the determination’s nominal expiry date, which must not be more than 4 years after the date on which the determination comes into operation.

The determination must not include:
  • any terms that would not be about permitted matters if the determination were an enterprise agreement; or
  • a term that would be an unlawful term if the determination were an enterprise agreement; or
  • any designated outworker terms.
The determination must include terms such that the determination would, if the determination were an enterprise agreement, pass the better off overall test.

The determination must not include a term that would, if the determination were an enterprise agreement, mean that FWA could not approve the agreement because the term would contravene the National Employment Standards (NES).

Mandatory terms of a workplace determination
 
The determination must include the following:
  • a term that provides a procedure for settling disputes about any matters arising out of the determination, and in relation to the NES
  • the model flexibility term unless FWA is satisfied that an agreed term for the determination would, if the determination were an enterprise agreement, satisfy s186(6) of the Act
  • the model consultation term unless FWA is satisfied that an agreed term for the determination would, if the determination were an enterprise agreement, satisfy s205(1) of the Act.
Industrial action related workplace determination
 
This determination is provided for under s266 of the Fair Work Act.

An ‘Industrial action related workplace determination’ is one such determination.

If:
  • FWA makes an order under ss423 or 424 terminating protected industrial action; and
  • the post-industrial action negotiating period of 21 days (or 42 days if all bargaining representatives agree to such an extension) ends; and
  • matters remain in issue between the bargaining representatives
FWA must make an industrial-action-related workplace determination as quickly as possible after the end of that period.

Bargaining related workplace determination
 
Under s269 of the Fair Work Act, FWA must make a bargaining related workplace determination in the following circumstances:
  • if a serious breach declaration (s234) has been made in relation to the proposed enterprise agreement; and
  • the post-declaration negotiating period ends; and
  • the bargaining representatives for the agreement have not settled all of the matters that were at issue during bargaining for the agreement.
Factors FWA must take into account
 
The factors that FWA must take into account in deciding which terms to include in a workplace determination include the following:
  • the merits of the case
  • for a low-paid workplace determination — the interests of the employers and employees who will be covered by the determination, including ensuring the employers are able to remain competitive
  • for a workplace determination other than a low-paid workplace determination — the interests of the employers and employees who will be covered by the determination
  • the public interest
  • how productivity might be improved in the enterprise or enterprises concerned
  • the extent to which the conduct of the bargaining representatives for the proposed enterprise agreement concerned was reasonable during bargaining for the agreement
  • the extent to which the bargaining representatives for the proposed enterprise agreement concerned have complied with the good faith bargaining requirements
  • incentives to continue bargaining at a later time.
Low-paid bargaining workplace determination
 
The Fair Work Act provides a bargaining stream for multiple enterprise agreements in relation to low-paid workers.

This stream can only be accessed through authorisation from FWA.

The term ‘low-paid employees’ is not defined by the Act; however, in certain circumstances, where bargaining breaks down, the bargaining parties can jointly, or individually, apply for an arbitrated workplace determination.

Interaction
 
Under the Act (s278), if a workplace determination applies to an employee in relation to particular employment, and an enterprise agreement that covers the employee in relation to the same employment comes into operation, the determination ceases to apply to the employee in relation to that employment, and can never so apply again.

If an earlier workplace determination applies to an employee in relation to particular employment, and another workplace determination that covers the employee in the same employment comes into operation, the earlier determination ceases to apply when the later determination comes into operation, and can never so apply again.
Case study
 
To provide subscribers with the type of matters that the Tribunal can deal with in relation to workplace determinations, a Full Bench of FWA recently issued a workplace determination that considered six principal matters at issue requiring an arbitral outcome from FWA, namely:
  1. hours of work, rostered days off (RDOs), shift patterns and annual leave
  2. medical certificates for single days absences
  3. wages and allowances increases
  4. size change and asset care allowances
  5. workplace cooperation
  6. nominal expiry date.
FWA made the following decision in relation to the matters at issue:
  • the employer sought to introduce 12-hour shifts on both a 6- and 7-day pattern. FWA was satisfied the implementation of changed shift arrangements would provide commercial and financial benefits to the employer. It was not established that the extended shift arrangements necessarily created health and safety risks. The employer had not carried out preparatory work for the proposed shift patterns. Further opportunity afforded the parties to make submissions regarding shift patterns. There was a limited and controlled introduction of extended shift options. There was no case for additional annual leave for 6-day shift workers.
  • a medical certificate could be requested by the employer for any single day absence in excess of three single days each year.
  • FWA will not determine shift loadings
  • nominal expiry date no more than two-year term
  • parties to make further submissions with respect to wages and allowances.
See: Fair Work Australia v Schweppes Australia Pty Ltd v United Voice [2012] FWAFB 7858.
 

 
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