New Enterprise Bargaining Rules 2023
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New Enterprise Bargaining Arrangements
?Changes to Bargaining (6 June or an earlier date to be fixed by proclamation)
Single-Enterprise Agreement – Initiating Bargaining
A bargaining representative can give an employer a written request to bargain if:
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Multi-Employer Bargaining – 3 Streams (Commences 6 June 2023)
An example of a key change
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Application and Considerations for Businesses:
o??Single-interest employer authorisations – if you have an enterprise agreement that has not reached its nominal expiry date, or you have already agreed to bargain, or you are in the building and construction industry, this will not apply to you.
o??Has your EA reached its nominal expiry date.
o??Has your employee bargaining representative applied to the FWC for single interest employer authorisation.
o??Do you employ at least 20 employees?
o??If you do not employ at least 20 employees, you will not be added to the single-interest employer authorisation.
o??Are you already named in a single interest employer or supported bargaining authorisation?
o??Do the majority of your employees who will be covered by the EA want to bargain?
o??Are you a common interest employer (see below).
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Are you a Common Interest Employer?
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o??Employee bargaining representative has applied for authorisation.
o??Onus on large employer (if over 50 employees and you do not want to bargain with other enterprises, must prove your enterprise is not reasonably comparable to other enterprises).
o??Factors the FWC will take into account:
o??Geographical location
o??Regulatory regime
o??Nature of the enterprise and
o??Terms and conditions of employment in enterprises
o??Public interest – the FWC must be satisfied it is not contrary to the public interest for you to bargain with the other enterprises.
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Roping in an Employer to a Single-Interest Employer Agreement
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o??Can be achieved by joint application of employer and employees.
o??Unions can also apply to the FWC for an employer to be added to a single-enterprise agreement.
o??Employer and employees can express their views to the FWC.
o??If more than 20 employees; majority of employees support being covered.
o??Current agreement has passed its nominal expiry date.
o??No agreement to bargain for a single-enterprise agreement.
o??An employer may have no choice.
o??Employer can argue its contrary to public interest.
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Bargaining Disputes and Intractable Bargaining Declarations
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The FWC can arbitrate unresolved matters where bargaining is prolonged
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1.????Applicant has already sought assistance of the FCW in bargaining via a section 240 Conference.
2.????9 months have passed since bargaining commenced, or 9 months after the nominal expiry date of previous EA (whichever is later).
3.????No reasonable prospect of agreement being reached.
4.????It is reasonable in all the circumstances, considering the views of bargaining representatives.
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FWC’s considerations in an arbitration –
o??Merits of the case
o??Interests of the employers and employees who will be covered by the determination
o??Significance of existing arrangements
o??Public Interest
o??Productivity improvements
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Arbitrated outcome will include matters agreed by parties, and the non-agreed matters determined by the FWC.
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Opportunity and a risk contingency for current bargaining
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