On 27 November 2014, the Hon. Christopher Pyne MP introduced the Fair
Work Amendment (Bargaining Processes) Bill 2014 (the bill) in the House of
On 4 December 2014 the Senate referred the provisions of the bill to the Senate
Education and Employment Legislation Committee (the committee) for inquiry and
report by 25 March 2015.
Conduct of the inquiry
Details of the inquiry were made available on the committee's website.
The committee also contacted a number of organisations inviting submissions to
the inquiry. Submissions were received from 23 individuals and organisations,
as detailed in Appendix 1.
A public hearing was held in Canberra on 20 March 2015. A list of witnesses
is available in Appendix 2.
Overview of the bill
The bill would amend the Fair Work Act 2009 (the Act) by
inserting new clauses in subsections 187(1), 443(1) and 443(2). Broadly, the
amendments introduce a new approval requirement for enterprise agreements and provide
guidance regarding the circumstances in which a protected action ballot order
can be made.
If enacted, the bill would:
require the Fair Work Commission (FWC) to be satisfied, as a
condition of enterprise agreement approval, that workplace productivity
improvements were discussed during the bargaining process;
clarify that the FWC can only approve an application for a
protected action ballot where the applicant has genuinely tried to reach
agreement with the employer; and
clarify that the FWC must not make a protected action ballot
order if it considers that the applicant's claim is 'manifestly excessive' or
would have a 'significant adverse impact on productivity at the workplace'.
Enterprise agreements are made between employers and employees and set
out minimum employment terms and conditions.
The proposed requirement for discussions on productivity to take place as a
pre-condition of enterprise agreement approval is not intended to require the
FWC to make a determination on the merit of any improvements.
Protected action ballot order
A protected action ballot order is required before employees can
lawfully take industrial action, except where the action is in response to
industrial action by the other party in enterprise bargaining.
Guidance for the FWC
In assessing whether an applicant for a protected action ballot order is
genuinely trying to reach an agreement, the bill would require the FWC to have
regard to a range of non-exhaustive factors. These factors would include:
the steps taken by each applicant to try and reach an agreement;
the extent to which each applicant has communicated its claims in
relation to the agreement;
whether each applicant has provided a considered response to
proposals made by the employer;
the extent to which bargaining for the agreement has progressed.
The bill also provides that, where the FWC is satisfied that the claims
of an applicant seeking a protected action ballot order are manifestly
excessive, or would have a significant adverse impact on productivity at the
workplace, the commission must not make a protected action ballot order.
In conjunction with other reforms, this bill would give effect to the
government's election commitment of ensuring that 'the Fair Work laws provide
a strong and enforceable safety net for workers while helping businesses to
grow, create new jobs, and deliver higher real wage growth.'
Structure of the bill
The bill is comprised of two schedules. The first contains the
substantive amendments, while the second sets out their application and
The committee notes that the government consulted state and territory
ministers for workplace relations and work health and safety, the National
Workplace Relations Consultative Council (NWRCC) and the Committee on
Industrial Legislation (a subcommittee of the NWRCC) in the process of drafting
the bill. Changes were made to the proposed legislation following the
Human rights implications
The bill engages the right to freedom of association, the right to
strike and the right to collectively bargain for terms and conditions of
The explanatory memorandum states that the bill is compatible with human
rights and freedoms declared in the international instruments listed in section
3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Financial Impact Statement
The explanatory memorandum submits that the bill will have no financial
The committee thanks those individuals and organisations who contributed
to this inquiry by preparing written submissions and giving evidence at the
Notes of References
References in this report to the Hansard for the public hearings
are to the Proof Hansard. Please note that page numbers may vary between
the proof and official transcripts.
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