The Labor Party has been floating various workplace relations policy proposals that will be problematic for businesses if implemented.

Workplace relations policy proposals that have been recently mentioned by Opposition Leader Bill Shorten and Shadow Employment and Workplace Relations Minister Brendan O’Connor include:

  • Restricting the ability for employers to apply to terminate expired enterprise agreements.
  • Restricting the ability for employers to reach an enterprise agreement with a small group of employees and later apply that agreement to a large number of employees.
  • Restricting the engagement of casual employees, through defining casual employment in a narrow manner in the National Employment Standards. Employees who do not meet the definition would be entitled to annual leave, personal/carer’s leave and other entitlements of permanent employees.
  • Giving all employees an entitlement to 10 days of paid domestic violence leave per year through the National Employment Standards.
  • Setting a floor for the National Minimum Wage of 60% of median earnings, or changing the criteria in the Fair Work Act to require the Fair Work Commission to give more weight to the needs of low paid workers and consequently less weight to economic factors and the interests of employers.

The number of applications made to terminate expired enterprise agreements, as extracted from the Fair Work Commission’s Annual Reports, are set out in the table below.

Year Type of application under Fair Work Act Number of applications
2016-17 s.225 303
s.222 97
2015-16 s.225 311
s.222 92
2014-15 s.225 161
s.222 91

In considering the above table, it is important to note that:

  • All s.222 applications are agreed between the employer and employees covered by the agreement.
  • The s.225 applications include applications made by employers and those made by unions.
  • Only a miniscule proportion of the s.225 applications (less than 3%) are contested by one of the parties. Most relate to enterprise agreements which cover projects or contracts that have been completed.

There have only been a handful of cases over the last few years where an enterprise agreement has been terminated in response to an employer application which has been contested by unions (notably the Aurizon, Griffin Coal, Peabody, AGL and Murdock University cases). In each case, the application was made by the employer after a lengthy period of bargaining and the Fair Work Commission was convinced that it would not be contrary to the public interest to terminate the agreement. Compelling circumstances were present in each case, for example, in a few of the cases the enterprise agreement gave the employer no ability to implement redundancies other than for volunteers.

If you would like more information about the expiration of enterprise agreements, please contact Ai Group’s Workplace Advice Service on 1300 55 66 77.

Alternatively, if you would like advice about making or defending an application to terminate an enterprise agreement please contact your local employment, workplace and industrial lawyer in Sydney, Newcastle, Wollongong, Melbourne or Brisbane or email Ai Group Workplace Lawyers at info@aigroupworkplacelawyers.com.au.

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