Why have Enterprise Agreement terminations become so topical?

ELM: In an upcoming Industrial Relations and Enterprise Bargaining workshop you are facilitating in Brisbane Cathy, you will be going in depth on the recent changes to the Fair Work Act. In brief, what key changes have/will happen that can affect Australian employers; obviously without giving too much away from the workshop session?

Cathy: The targeting of individuals involved in a breach by workplace regulators such as the Fair Work Ombudsman has emerged as a clear trend in recent years, and legislative changes to protect vulnerable workers will only increase the focus on individual responsibility.

For those employers in the construction industry, the re-introduction of the Building Code and re-establishment of the Australian Building and Construction Commission are having significant repercussions as many employers are scrambling to renegotiate agreements in order to retain a right to tender for Commonwealth funded projects.

ELM: Employers need to constantly keep up to date with changes to modern awards; are there any in particular you would highlight?

Cathy: The recent changes to weekend penalty rates certainly gained a lot of union and media attention, but in reality, will affect a fairly small proportion of employers in limited industries.

There have been less publicised recent changes to awards which pose a much greater risk to unwary employers: the removal of absorption clauses from awards last year is a change which could expose employers to significant back pay claims, and changes to TOIL provisions in some awards gives a right to an employee to insist upon overtime payments, even where there is a well-established TOIL scheme in place.

ELM: For employers that deal with unions Cathy, I understand you are going through important developments related to Right of Entry. In short, what’s the one bit of advice you would give employers on this topic?

Cathy: Know the legal position and make the unions comply with these requirements – even if you have a good relationship with your local organisers.  For employers lucky enough to enjoy a good relationship with a union, it can be tempting to let the technical requirements slide.  This is all fine, until it isn’t. Changing long established custom and practice once a dispute arises could expose you to an adverse action risk.

ELM: The other hot topic at the moment within this space is definitely that of Enterprise Agreement terminations; specifically when, and if, an employer should make a termination application at all. In your opinion, what’s been the reason behind this being so topical at the moment and where do you think this is heading? I know you are going through more specifics in the workshop.

Cathy: Historically the Commission was reluctant to terminate enterprise agreements, even if they had passed their nominal expiry date, in circumstances where the parties had been engaging in a bargaining process.

Since the Aurizon Full Bench decision in 2015 the position has changed, and the Commission has recognised that the legislative scheme does not require, or indeed intend, agreements to continue in perpetuity.

There are still a number of conditions that an employer needs to satisfy before it can apply to terminate an Enterprise Agreement.  However, if these conditions are met, the possibility of termination does give the employer some power in the event of a bargaining impasse.

ELM: We’re definitely looking forward to the Minter Ellison team running this Industrial Relations and Enterprise Bargaining workshop with us next month Cathy (in Brisbane, Melbourne and Perth); what are some of the top reasons why you think HR/ER executives should attend; and what will they gain by participating?

Cathy:  Poor industrial relations directly impacts your reputation, your workplace culture and retention, your productivity, and consequently your bottom line.

HR/ER executives need to be in a position where they can provide sound industrial strategy advice.  In order to do this, you need to know what the playing field looks like.  Industrial relations is always a political hot potato, but even where there has been minimal legislative change recently because of the current composition of the Senate, case law changes rapidly. This workshop will get HR and ER executives up to speed.

The workshop will also be practical, particularly in relation to enterprise bargaining and managing industrial action. As lawyers, we often see the outcomes of negotiations which have gone poorly – in this workshop we will give attendees practical tips and tricks to achieve the best outcome possible when they are around the bargaining table.


About Cathy Lyndon:

Cathy has over a decade of experience in assisting employers to manage their employment and industrial issues. She has worked extensively with government departments, Government Owned Corporations and other statutory bodies and is an expert in the particularities of public sector employment law.

As well as supporting her Minter Ellison clients with day-to-day employment issues such as performance management, managing injured workers, employee dismissals and redundancies, Cathy frequently provides advice regarding the negotiation of industrial agreements, employment contracts, employment issues involved with corporate transactions and discrimination.  She has a particular interest in the increasingly important area of privacy law and how this impacts the employment relationship.

Cathy and her team will be facilitating the related workshop on this topic in May. To register your interest, please visit the website.