Before you pass through the enterprise bargaining gates, it is important that you have One Key in mind, that is the Federal Full Court’s decision in One Key Workforce Pty Ltd v Construction, Forestry, Mining and Energy Union [2018] FCAFC (One Key).
It’s been over nine years since the Fair Work Act 2009 started to apply to Australian workplaces and both the Fair Work Commission and the Courts continue to belatedly tell us that we have got things wrong when trying to make Enterprise Agreements (EA).
The result being it is not only harder to get EAs approved but the Commission is taking a ‘fine tooth comb’ approach to compliance at every stage of the EA making process.
The lessons from One Key must be considered before you enter into bargaining and also before you put an EA to a vote.
The threshold challenge is for business to ensure:
- That an EA can be “genuinely agreed to”.
- Employees voting on an EA are “fairly chosen”.
This means that where an EA proposes to cover employees in classifications where no employees have actually been employed, a question will arise as to whether such an EA is capable of being “genuinely agreed to” by those voting.
In the case of One Key, only three employees had voted on an EA that proposed to cover employees across 11 Modern Awards. The business then employed over a thousand workers within six months of the vote, suggesting they avoided a genuine bargaining process, subverting the intentions of the Act. This was one of the reasons the Full Court killed the EA.
The second consideration and another reason the Full Court killed the EA was the apparent failure of the business to take ‘all reasonable steps’ to explain the terms and effect of the proposed EA to employees.
What the business had done was limited to sending an email to each of the employees, and a follow up telephone call involving no genuine attempt to explain the EA’s terms or their effect.
You have to carefully consider the relationships between the work the EA theoretically covers and the work the voters actually do.
Simply saying to voters this EA is the same as the last one with a wage increase is increasingly unlikely to pass muster.
Today, challenge yourself and ask what “reasonable steps” you can take to explain the content and effect of the proposed EA. Take this seriously rather than see it as a perfunctory piece of administration, or worse, leave it up to the union.
If this article has raised any concerns or questions, contact us on 1800 565 846 or
info@ablawyers.com.au.