Fair Work Act changes

In late 2022, the Albanese Labor government passed their proposed changes to the Fair Work Act in to law. These changes, styled the Secure Job, Better Pay Act, should greatly streamline the legal requirements around bargaining.

It has been the case since the Fair Work Act first came into being in 2009 that employers and employees can bargain for an enterprise agreement, an industrial instrument which must contain better conditions overall than the prevailing award. In the post-secondary college sector, the industry award is the Educational Services (Post-Secondary Education) Award. Like all federal awards, this award is designed to provide a floor of working conditions in the sector, but overall those conditions are pretty basic.

Federal industrial law is premised on individual workplaces bargaining for an enterprise agreement to sit above that award. Your union has negotiated several such agreements with private colleges, though it remains the case that many colleges use the award as their primary reference instrument.

The Fair Work Act contains provisions around so-called “good-faith bargaining”, under which an employer can be compelled to bargain, where it can be demonstrated that many employees want this to happen. While that looks fair enough on the surface, in practice it has proved to be difficult to demonstrate such support, especially in an industry so dominated by workers employed under insecure work arrangements, such as casual and short-term contracts. Furthermore, there has long been no requirement for anyone to ‘agree’ on anything, and so bargaining can often end up in a dead end.

The changes to the Act go some way to ameliorating these problems. One big reform is the expansion of multi-enterprise bargaining, such that the Fair Work Commission can now order individual employers in a similar line of work into supported bargaining. This could mean, for example, that separate colleges can be moved into a bargaining stream, with the aim of covering multiple colleges under the one multi-enterprise agreement.

Another welcome change is the expansion of access to arbitration for bargaining negotiations that have reached an impasse or otherwise intractable stage. This should help put an end to employer tactics of ‘hard bargaining’, where they just keep stonewalling negotiations while complying with the bare bones requirements of good faith bargaining.

Of course, these changes to the Act are still new, and many do not come into effect until later this year. Like all laws, these will then be tested through court actions by both unions and employers, which may open up further ways in which your union may seek benefits for our members, You can be sure that the IEU will be looking at these matters very closely.

To find out how bargaining laws (both existing and new) can be used at your workplace, contact your union, the IEU. In the meantime, the best way to get things started is to encourage your colleagues to join the IEU.

Kendall Warren