The Fair Work Act: Encouraging collective agreement-making but leaving collective bargaining to choice

Abstract

Policies promoting enterprise bargaining in Australia are often associated with collective bargaining. However, collective bargaining does not accurately describe a range of enterprise bargaining activity and some Australian researchers have instead used the term collective agreement-making. The Fair Work Act 2009 signifies a substantial consolidation of enterprise bargaining practices by instituting a single collective agreement-making process, which this article examines through formalistic legal analysis. The analysis explores the ways enterprise bargaining practices under the Fair Work Act are allowed to diverge from collective bargaining. This article contributes to our understanding of collective agreement-making processes by explicating two important dimensions of variation: how employees are represented and how terms of agreement are derived. Whether collective agreement-making under the Fair Work Act’s procedures aligns with collective bargaining is found to depend upon the choices of individual participants, particularly employees’ choices between five broad representative forms and bargaining representatives’ conduct, especially the employer’s. In extreme cases, there may not be any employee representation, and employers may exploit the legal meaning of ‘agreement’ to avoid meaningful negotiation and instead pursue employee acquiescence in a voting procedure.

Keywords:

• collective bargaining
• collective agreement-making
• Fair Work
• representation

Acknowledgement

I am grateful to Dr Bradon Ellem, Dr Gaby Ramia, Dr Mark Bray, Dr Leanne Cutcher and the journal’s anonymous reviewers for helpful comments on previous versions of this article.

Notes

1. [2009] FWA 849, footnote to [146]; see for example [2011] FWA 2862.

2. See [2010] FWAA 6077 where the union declined to actively participate in bargaining on behalf of a single employee but retained default representative status because the employee did not formally revoke that status in writing.

3. [2010] FWA 4509, [18].

4. [2010] FWA 4509, [18].

5. [2012] FWA 1096, [22].

6. [2011] FWA 3916, [27]-[32].

7. [2010] FWAFB 3510, [30]; also [2009] FWA 88; [2010] FWA 1065; [2010] FWA 7416; [2009] FWA 1854, [18].

8. [2011] FWA 3916, [43].

9. [2010] FWA 2105, [8]-[9].

10. [2012] FWA 1096, [24].

Additional information

Notes on contributors

Kurt Walpole

Kurt Walpole is a doctoral candidate in the Graduate School of Government at the University of Sydney. His research focuses on politics, industrial relations policy and employment regulation.