20.4 The Australian Government Supported This recommendation has substantial merit. should amend s. 186(5) of the FW Act to allow an enterprise There is no reason why an enterprise agreement agreement to specify a nominal should not have a life of five years if this is what the expiry date that: employer and employees covered by the agreement prefer. Enterprise bargaining is often costly and can be up to five years after disruptive. the day on which the FWC approves the agreement, or Also, many major projects have a life of more than 5 years. The expiry of enterprise agreements during the matches the life of a life of the project can be extremely disruptive and greenfields project. The damaging. resulting enterprise agreement could exceed five years, but where it does so, the business would have to satisfy the FWC that the longer period was justified. 20.5 The Australian Government Supported Ai supports this recommendation. The No should amend the FW Act to Disadvantage Test should incorporate the following replace the better off overall test elements: for approval of enterprise agreements with a new The comparison should be against the relevant nodisadvantage test. modern and The nodisadvantage test be The time” should be the time the application “test conducted by the FWC. It would for approval of the agreement is made (as assess that, at the test time, each currently applies under s.196(3)). class of employee, and each prospective class of employee, would not be placed at a net disadvantage overall by the agreement, compared with the relevant modern award(s). 21.1 The Australian Government Supported Consistent with Ai Group’s submissions to the PC, the should the FW Act so that if minimum negotiating period should commence as an employer and union have not soon as the employer initiates bargaining or agrees to reached a negotiated outcome for bargain with the union/s, rather than requiring the a greenfields agreement after service of a particular notice on the union/s. three months, the employer may: continue negotiating with the union request that the FWC undertake offer’ ‘last arbitration by choosing between the last offers made
20.4 The Australian Government should amend s. 186(5) of the FW Act to allow an enterprise agreement to specify a nominal expiry date that: can be up to five years after the day on which the FWC approves the agreement, or matches the life of a greenfields project. The resulting enterprise agreement could exceed five years, but where it does so, the business would have to satisfy the FWC that the longer period was justified. Supported This recommendation has substantial merit. There is no reason why an enterprise agreement should not have a life of five years if this is what the employer and employees covered by the agreement prefer. Enterprise bargaining is often costly and disruptive. Also, many major projects have a life of more than 5 years. The expiry of enterprise agreements during the life of the project can be extremely disruptive and damaging. 20.5 The Australian Government should amend the FW Act to replace the better off overall test for approval of enterprise agreements with a new nodisadvantage test. The nodisadvantage test be conducted by the FWC. It would assess that, at the test time, each class of employee, and each prospective class of employee, would not be placed at a net disadvantage overall by the agreement, compared with the relevant modern award(s). Supported Ai supports this recommendation. The No Disadvantage Test should incorporate the following elements: The comparison should be against the relevant modern and The “test time” should be the time the application for approval of the agreement is made (as currently applies under s.196(3)). 21.1 The Australian Government should the FW Act so that if an employer and union have not reached a negotiated outcome for a greenfields agreement after three months, the employer may: continue negotiating with the union request that the FWC undertake ‘last offer’ arbitration by choosing between the last offers made Supported Consistent with Ai Group’s submissions to the PC, the minimum negotiating period should commence as soon as the employer initiates bargaining or agrees to bargain with the union/s, rather than requiring the service of a particular notice on the union/s.
aig_submission.docx