This year again, we are awaiting further review of enterprise agreements by the Fair Work Commission and the Federal Court of Justice. We also recommend that employers focus more on the Inlagidier for approval of an enterprise agreement. We see a tendency in the FWC to request additional information after the agreement has been submitted for approval. The inclusion of additional information in advance to support the question of why the proposed agreement puts the BOOT back in place can help to obtain faster authorization. Most employers now have the problem of communication in control. However, other conditions of authorisation, such as the guarantee of the agreement and its effect, are duly explained to workers, which can be a new challenge. Is it enough to just make a memo explaining the changes, or do we need to do a little more? In 2017, we saw greater control over enterprise agreements that had also been concluded by employees and trade unions. This was evident in several respects, including the invitation of employers to return to the bargaining table for minor procedural flaws in communications on workers` representation rights, as well as the invitation of employers to bring together the issues that were included in previous contracts. However, many large employers want the security of a fixed-term enterprise agreement because workers are unable to take anti-work actions. But at what cost? In 2017, the full bank of the FWC and the Bundesgerichtshof have overturned a number of decisions authorising enterprise agreements, among others: employers with tariffs charged in their enterprise agreements should also be aware that a full bank of the FWC has been appointed to examine how to apply the BOOT. The FWC invited submissions and a hearing was held on November 15, 2017. The case has been postponed, so look at this room.
The tendency of the Full Bench or the Federal Court of Justice to overturn historical decisions authorizing enterprise agreements increases uncertainty for all parties. More and more employers are seeing how they are facing the challenge of advancing organizational change through an enterprise agreement strategy. If such a change is not possible, it may well create the platform for an employer to consider a request to terminate the existing enterprise contract. This should remain a feature of bargaining for some employers in the future. The latest Report by the Ministry of Labour (Trends in Federal Enterprise Bargaining September 2017) shows a decrease in the number of agreements concluded by the private sector, while public sector coverage has not changed much. The decrease in union density, increasing control of BOOT and an increasingly broad safety net for modern rewards may well lead to this trend continuing. The information provided should not be a comprehensive review of all legal and practical developments, nor should it cover all aspects of these issues. Readers should be legally advised before applying to specific topics or transactions. This issue will continue in 2018 and employers will need to ensure that they are kept informed of any changes to the corresponding modern distinction resulting from the quadrennial review. Sign up for the latest legal developments, previews and news from Ashurst. By registering, you agree to receive commercial messages from us. You can unsubscribe at any time.