The Fair Work regime — are you prepared?


The Fair Work regime — are you prepared?

In this article, prominent law firm, Freehills, examines three key aspects of the unions’ strategy for moving to and shaping the nature of the new ‘Fair Work’ regime.


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In this article, prominent law firm, Freehills, examines three key aspects of the unions’ strategy for moving to and shaping the nature of the new ‘Fair Work’ regime.
This article was written by Paul Burns.
Union heavyweights gathered in Brisbane in the first week of June for the ACTU Congress to set their workplace agenda and platform for the next three years. The Congress sounded an ominous warning for employers unprepared for the impact of the workplace reforms implemented by the Federal Government.
The union movement is united in their desire to breathe life into the reforms that are largely due to commence from 1 July 2009. Little wonder Congress delegates reacted a little angrily to the Deputy Prime Minister’s call to ‘pound the pavement’ and make best use of the new laws. The union movement is well ahead of the game and already has in place a sophisticated strategy to achieve their objective of getting the maximum benefit out of the reforms at the workplace level.
The three key aspects of the unions’ strategy for moving to and shaping the nature of the new ‘Fair Work’ regime are noted below.
Deferral of bargaining
Collective agreements can continue to be made under the existing legislative regime until 30 June 2009. Not surprisingly, some unions are not in a hurry to do any ‘new deals’ prior to the new laws taking effect. They obviously see some benefit in bargaining under the new regime, which extends beyond mere symbolism.
The challenge for employers, keen to secure a new deal and avoid the uncertainties in moving to the new regime, has been to convince unions and employees alike of the sense in concluding an agreement in a timely manner.
Unions are also alive to employer attempts to conclude employee collective agreements prior to 1 July 2009. One of the key employer criticisms of the ‘Fair Work’ regime is the potential difficulties it presents in reaching an enterprise agreement directly with their employees. The answer by some employers has been to explore the option of securing an employee collective agreement under the existing regime to continue their current industrial arrangements and avoid getting caught up in any skirmishes in the initial phases of the new laws.
Unions, on the other hand, have been adept at running effective ‘no’ campaigns in such circumstances by extolling the virtues they see in bargaining under the new regime. In doing so, unions obviously hope to maximise their bargaining opportunities after 1 July 2009 and to increase their profile, influence and membership levels in workplaces where they may not presently have an entrenched presence.
Reshaping of claims
The ‘Fair Work’ regime dilutes the prohibited content rules for enterprise agreements and removes the penalties that apply for including non-permissible matters in any deal made at the workplace.
Accordingly, many union-friendly provisions that were outlawed by the WorkChoices reforms will now reappear at the bargaining table. However, the unions’ strategy goes beyond merely returning to their old ways.
They are alive to the new power of the courts to issue injunctions to restrain breaches of enterprise agreements. As a result, employers can expect new and novel claims in bargaining, particularly around the processes for introducing workplace change, employee discipline and dispute resolution. Unions have made no secret of their intent to utilise this new power in order to hold employers accountable for complying with their agreements.
It does work both ways, however, and employers have the same means at their disposal to hold unions similarly accountable for sticking to their deal. Nevertheless, the drafting of provisions in enterprise agreements is now more important than ever given the arsenal available to the parties to drive compliance with applicable obligations.
Testing the boundaries
It has been reported that unions will establish or have established a strategic litigation fund to support test cases which will inevitably frame the boundaries of the ‘Fair Work’ regime. This should not surprise employers with an eye to history, given the novel way in which unions have in the past tested key aspects of any new laws regulating workplace arrangements.
The effective manner in which the ‘freedom of association’ provisions were used in the late 1990s and early 2000s to challenge workplace changes introduced by employers is but one example of the previous success of unions in this regard.
Again, unions have made little secret that they intend to initially target the ‘good faith bargaining’ obligations, right of entry and the low paid bargaining stream in order to shape their operation and push the boundaries of the new regime.
Further, the new ‘general protections’ largely replacing the old freedom of association and related provisions, have been apparently described by union leaders as the strongest protections against unfair treatment at work that have existed in Australia. Not surprisingly, unions intend to prosecute any breaches of these ‘general protections’, particularly as they concern ‘union-related activities’, to maximise the benefits they see as flowing from the new laws.
Key points
  • The ‘Fair Work’ regime is upon us and the union movement appears prepared for the challenges ahead.
  • Employers need to be similarly prepared by understanding and dissecting likely union strategies and continuing to engage with employees to ensure there are no misunderstandings about the move to the new regime.
  • There remain many opportunities which exist for employers under the ‘Fair Work’ regime, with the challenge for employers being to shape the operation of the new laws if and when the need arises.
Source: Paul Burns is a partner with Freehills in Melbourne (+61 3 9288 1568). Email
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