For more information on how to negotiate in good faith and in companies that have proven themselves, see the Ombudsman`s Guide to Good Practice for Fair Work – improving productivity at work in negotiations. Once the negotiations are over and a draft enterprise agreement is completed, it must be voted on by the workers covered by the agreement. In an important decision on the agreement, a full bank of the Fair Labour Commission clarified when the Commission could accept an obligation in the context of an application for approval of an enterprise agreement. Greenfields agreements are permitted where workers` organizations covered by the agreement have the right to represent the interests of the majority of workers, which is in the public interest. Within the framework of the national industrial relations system, there are two categories of agreements: an enterprise agreement is an agreement on the authorized issues: the application of the BOOT has been an obstacle to many agreements approved by the Commission. To succeed in the BOOT, the Commission must be convinced that any worker to beat (and any potential worker covered for the bonus) would be in a better position overall if the agreement applies to the worker than if the corresponding modern bonus were applicable. This requires the Commission to determine the terms of the agreement, which are more advantageous, as well as the terms that are less advantageous, and then to make an overall assessment of whether each worker would be better off under the agreement than under the award of arbitration. The terms of an enterprise agreement, transitional instruments (assignment or convention) and modern rewards cannot exclude the NES, and those who do so will have no effect. Before accepting a commitment, the Commission must ensure that it does not have a financial disadvantage to a worker covered by the agreement or that it results in substantial changes to the agreement.
As another Full Bench said in Kaefer,[3] “the legislative concern is to prevent workers from being subjected to agreements that they have not authorized.” For employers who are currently negotiating an enterprise agreement or are considering negotiations in the future, the decision of Full Bench in CFMMEU/C-H Acquisition Pty Ltd [2020] FWCFB 3134 provides useful guidance on the types of issues on which a business may be referred. In these circumstances, the Fair Work Commission must respect the agreement: the Fair Work Act 2009 provides a simple, flexible and fair framework that helps employers and workers negotiate in good faith to conclude an enterprise agreement. When an organization is unable to prove that it was a negotiator of the agreement or that it was entitled to a hearing or submission, an organization is not included in the correspondence, including notification of the Commission`s intention to determine the request, unless it has been contacted by the Presiding Member and has been flagged by other means. An employer issuing a Greenfields agreement must notify in writing any workers` organization that is a bargaining representative for the proposed agreement. This communication must include the beginning of the six-month negotiation period for the Greenfields agreement. If the parties fail to agree on the terms of a proposed enterprise agreement, a representative of the negotiations may ask the Commission for assistance in fair work. If necessary, the Commission for Fair Work can adopt a negotiating decision on the proposed agreement. A negotiating settlement will include measures that the Fair Work Commission must take, measures that should not be taken and other issues that the Commission deems necessary for fair work to promote fair and effective negotiations.
