breaching good faith bargaining requirements. 15.7 The Australian Government should amend the Fair Work Act 2009 (Cth) so that if an employer Support. and union have not reached a negotiated outcome for a greenfields agreement after three months, the employer may (as illustrated in figure 15.5): continue negotiating with the union • request that the Fair Work Commission undertake arbitration of an outcome by • ‘last offer’ choosing between the last offers made by the employer and the union submit the proposed greenfields arrangement for approval with a 12 month nominal • employer’s expiry date. Regardless of the agreement-making process chosen by the employer, the ensuing greenfields arrangement must pass the proposed no-disadvantage test. 16.1 The Australian Government should amend the Fair Work Act 2009 (Cth) so that the flexibility Support. term in a modern award or enterprise agreement can permit written notice of termination of an individual flexibility arrangement by either party to be a maximum of 1 year. The Act should specify that the default termination notice period should be 13 weeks, but in the negotiation of an agreement, employers and employees could agree to extend this up to the new maximum. 16.2 The Australian Government should amend the Fair Work Act 2009 (Cth) to introduce a new Support. (NDT) to replace the better off overall test for assessment of individual test’ flexibility arrangements. The guidance in implementing the new NDT should also extend to collective agreements (as recommended in draft recommendation 15.4). To encourage compliance the Fair Work Ombudsman should: provide more detailed guidance for employees and employers on the characteristics of an • individual flexibility arrangement that satisfies the new NDT, including template arrangements
breaching good faith bargaining requirements. 15.7 The Australian Government should amend the Fair Work Act 2009 (Cth) so that if an employer and union have not reached a negotiated outcome for a greenfields agreement after three months, the employer may (as illustrated in figure 15.5): • continue negotiating with the union • request that the Fair Work Commission undertake ‘last offer’ arbitration of an outcome by choosing between the last offers made by the employer and the union • submit the employer’s proposed greenfields arrangement for approval with a 12 month nominal expiry date. Regardless of the agreement-making process chosen by the employer, the ensuing greenfields arrangement must pass the proposed no-disadvantage test. Support. 16.1 The Australian Government should amend the Fair Work Act 2009 (Cth) so that the flexibility term in a modern award or enterprise agreement can permit written notice of termination of an individual flexibility arrangement by either party to be a maximum of 1 year. The Act should specify that the default termination notice period should be 13 weeks, but in the negotiation of an agreement, employers and employees could agree to extend this up to the new maximum. Support. 16.2 The Australian Government should amend the Fair Work Act 2009 (Cth) to introduce a new test’ (NDT) to replace the better off overall test for assessment of individual flexibility arrangements. The guidance in implementing the new NDT should also extend to collective agreements (as recommended in draft recommendation 15.4). To encourage compliance the Fair Work Ombudsman should: • provide more detailed guidance for employees and employers on the characteristics of an individual flexibility arrangement that satisfies the new NDT, including template arrangements Support.
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