approval approval. An employer whose circumstances have changed making of applications for and who no longer seeks agreement approval must agreement approval. In the case of nevertheless apply, but then discontinue the application under applications by employee s588. This is form over substance. An employer should not be bargaining representatives, compelled to seek approval of an agreement in every case and require consent of the employer employee representatives should not be able to apply for upon filing of the application. agreement approval absent the consent of the employer. Agreement approval 186(2)(d), The BOOT is a disincentive to bargaining because it seeks to BARRIER Restore the no-disadvantage test – the BOOT 193 improve the position of employees at the expense of in preference to the BOOT. employers. The BOOT drives up labour costs without any Make workplace productivity a requirement for productivity measures or offsets, despite the key objective. objects of the Part 2-4 which support enterprise agreements Prohibit pattern bargaining. that deliver productivity benefits. The no-disadvantage test was more workable it preserved the position of – employee’s overall, but there was greater scope for trading of rights and responsibilities without increasing overall costs. Fairly chosen 186(3) This requirement is sometimes used as a device to reject The fairly chosen requirement BARRIER requirement innovative enterprise agreements. Employees must approve an should be removed. agreement before it is made this is the safeguard to ensure – that employees support the making of the agreement. Allowing FWC to dictate the scope of agreements or reject agreements because of their own preferences for how an employer should structure their business is an unreasonable fetter on flexibility. Greenfields agreements 186(5) Greenfields agreements can only be approved if they are in the Provide for greenfields BARRIER approval public interest. This sets the bar too high, as the private agreements to be approved if it is – interests of the parties are insufficient to meet the test. In not contrary to the public interest. contrast, agreements that fail the BOOT can nevertheless be approved as long as approval is not contrary to the public interest. Unlawful terms 194 There is much confusion and uncertainty about the types of Revise the list of unlawful terms, BARRIER terms that are unlawful, particularly in relation to right of to include: entry. Case law has developed to the point where the terms dealing with unfair restriction on terms dealing with right of entry is almost dismissal,
approval approval. An employer whose circumstances have changed and who no longer seeks agreement approval must nevertheless apply, but then discontinue the application under s588. This is form over substance. An employer should not be compelled to seek approval of an agreement in every case and employee representatives should not be able to apply for agreement approval absent the consent of the employer. making of applications for agreement approval. In the case of applications by employee bargaining representatives, require consent of the employer upon filing of the application. Agreement approval – the BOOT 186(2)(d), 193 The BOOT is a disincentive to bargaining because it seeks to improve the position of employees at the expense of employers. The BOOT drives up labour costs without any requirement for productivity measures or offsets, despite the objects of the Part 2-4 which support enterprise agreements that deliver productivity benefits. The no-disadvantage test was more workable – it preserved the position of employee’s overall, but there was greater scope for trading of rights and responsibilities without increasing overall costs. Restore the no-disadvantage test in preference to the BOOT. Make workplace productivity a key objective. Prohibit pattern bargaining. BARRIER Fairly chosen requirement 186(3) This requirement is sometimes used as a device to reject innovative enterprise agreements. Employees must approve an agreement before it is made – this is the safeguard to ensure that employees support the making of the agreement. Allowing FWC to dictate the scope of agreements or reject agreements because of their own preferences for how an employer should structure their business is an unreasonable fetter on flexibility. The fairly chosen requirement should be removed. BARRIER Greenfields agreements – approval 186(5) Greenfields agreements can only be approved if they are in the public interest. This sets the bar too high, as the private interests of the parties are insufficient to meet the test. In contrast, agreements that fail the BOOT can nevertheless be approved as long as approval is not contrary to the public interest. Provide for greenfields agreements to be approved if it is not contrary to the public interest. BARRIER Unlawful terms 194 There is much confusion and uncertainty about the types of terms that are unlawful, particularly in relation to right of entry. Case law has developed to the point where the restriction on terms dealing with right of entry is almost Revise the list of unlawful terms, to include: terms dealing with unfair dismissal, BARRIER
sub0223-workplace-relations.docx