Introduction

Enterprise bargaining has assumed the status of an essential process for determining employment relations beyond the minimum requirements of national awards in Australia. On the other hand, enterprise agreements (EAs) allow employers, employees, and often unions to bargain for terms that are suited for the employment relationships within the employer and employees organizations (Fair Work Commission, 2023). This brief examines recent legislative changes in enterprise bargaining, including the Secure Jobs, Better Pay Act 2022 and the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022. These changes are directed towards making enterprise agreements more attractive and efficient for employers by simplifying how these agreements are reached and avoiding intermediaries (Forsyth & McCrystal, 2023). This study examines whether such recent changes to legislation on enterprise agreements have made them appealing to employers. This paper discusses how recent legislative changes and their development compared to the history of enterprise bargaining have affected employers and subsequently strengthened the attractiveness of Enterprise Agreements as a positive advancement for both the employer and the employee in todays context in addressing the given level of flexibility and challenges in the modern workplace.

Discussion
Background on Enterprise Bargaining

Enterprise bargaining means negotiating between employers and employees or their representatives to reach an agreement on working conditions that go above what is legally required, as provided in modern awards. Enterprise agreements are reviewed by the Fair Work Commission under the Fair Work Act of 2009 to ensure that the agreements meet the Better off Overall Test (BOOT), guaranteeing that employees are better off than the relevant award (Fair Work Commission, 2023). Traditionally, business contracts have allowed management to design work conditions that encourage productivity and flexible working hours while employees are also guaranteed better pay and terms of employment. In this instance, this is advantageous to the employers, as they can operationalize most of the employment terms such as work hours, pay, and job categories (Brega et al., 2024). Nonetheless, some recent changes in the law have altered the existing framework of enterprise bargaining.

In this respect, the Fair Work Amendment (Supporting Australias Jobs and Economic Recovery) Act 2021 made several changes geared at making it easier to reach an agreement, especially given the adverse economic effects attributable to the COVID-19 pandemic (SENATE, 2022). The importance of enterprise agreements is, therefore, hinged on their capacity to cultivate constructive employment relations. These agreements allow parties to some mitigated contractual terms based on the functional requirements of the business organization while simultaneously avoiding workplace conflict and discontentment among employees (Fair Work Ombudsman, 2021). An average business agreement may include details regarding the salary, working hours, the right to take leave, and other factors influencing employment relations, making it easier to create a flexible contract that will please both the player and the employer.

Recent Legislative Changes to Enterprise Bargaining in Australia

In Australias industrial relations system, enterprise bargaining is one of the most common ways employers and employees negotiate over wages and other employment conditions that do not fall within the minimums established by modern awards. Over the last few years, different legislative reforms have had a bearing on the conduct of enterprise bargaining, particularly after the Fair Work Amendment (Supporting Australias Jobs and Economic Recovery) Act 2021 came into force (Fair Work Ombudsman, 2021). These changes were more about deregulating the process, removing red tape, and enticing employers to enter into enterprise agreements while protecting employees.

1. Fair Work Amendment (Supporting Australia's Jobs and Economic Recovery) Act 2021

The Fair Work Amendment (Supporting Australia's Jobs and Economic Recovery) Act 2021 regularized the enterprise bargaining system and made various changes in response to issues posing challenges like the global pandemic (SENATE, 2022). The changes made by this legislation were intended to simplify the process for the approval of enterprise agreements. New provisions were also introduced to assist specific industries and sectors severely hit by the pandemic.

Streamlining the Enterprise Agreement Approval Process

One of the most significant modifications under this Act is accelerating the process of getting the proposed enterprise agreements approved by the Fair Work Commission (FWC). Before this, the approval process took too long, especially for employers. It would take months to the point where the employers patience wore thin, especially when they wanted to place the changes negotiated within their contracts (SENATE, 2022). The 2021 amendments have hastened this process in that parts of the procedure, specifically aspects requiring strict compliance with documents, fillings and notifications, have been scrapped. This implies that within a very short period, employers may have their agreements ascertained, enabling them to more accurately plan for their human resources. Even the aforementioned minor issues can now be disregarded by the FWC, provided they do not negatively impact employees or render the agreement inequitable. This aspect is beautiful to employers because it frees them from the risks of incurring unnecessary monetary expenses after long waits for the outcomes of agreement approval processes, which were very tedious in the past case (Fair Work Ombudsman, 2021).

Changes to the Better off Overall Test (BOOT)

Among the numerous changes brought about by the amendments made in 2021, the Better off Overall Test (BOOT) is the most notable. The FWC applies the BOOT to determine that employees covered by an enterprise agreement are better off than the conditions that would otherwise prevail under the applicable modern award. In practice, the BOOT has never been an easy issue for employers because it entailed that every employee ought to be better off under the agreement. Employment agreements are dangerous (Kimura, 2022). The 2021 amendments afford the FWC more discretion in the application of BOOT 2 as a whole; this amendment allows explaining the entire benefits conferred by the agreement without any need to tug-and-pull every single clause of the agreement to the clauses of the modern award (Thornthwaite & Sheldon, 2019). This alteration is better for employers in industries with per capita cost assessments that may have previously resulted in wait times or where some employees may have been disadvantaged in certain areas but are much more advantageous in others.

2. Provisions for Industries Impacted by COVID-19

An additional essential aspect of the Fair Work Amendment (Supporting Australias Jobs and Economic Recovery) Bill 2021 is the incorporation of special provisions for industries which were significantly affected due to COVID-19. Amendments made provision for alterations in working practices for a temporary period, particularly in tourism, retail and hospitality sectors, to allow employers to modify working hours, pay rates and job roles according to the reduced demand (Department of Employment and Workplace Relations, 2022). These included measures that provided expedited processing of enterprise agreements in this sector to keep the businesses running while ensuring jobs for the employees through a modified.

3. Casual Employment and Flexibility in Agreement-Making

The amendments also addressed reforms in relation to casual employment. Companies have tended to use casual employees to ensure a flexible workforce, notably in times of economic turmoil. The 2021 amendments have helped to define casual employment even more conclusively for the sake of employers. A casual employee accepts a job offer and does not have a guaranteed further offer of work (Taylor, 2022). This aspect of casual work has been described as the dry ice of reassurance by employers who need to engage casual labourers to cater to varying business requirements, especially in economic stress periods.

Case Study: The CUB Dispute

The ongoing dispute between Carlton & United Breweries (CUB) became a critical milestone in the hitherto borrowed stance of Australias industrial relations as it remained characterized by difficulties and centrifugal forces of various actors during the enterprise bargaining regime. The conflict originated when CUB, one of the largest beverage conglomerates in Australia, abruptly dismissed fifty-five maintenance employees and rehired them through a subsidiary company at a much lower pay grade and poorer employment conditions (Sutcliffe, 2013). This action was broadly regarded as a strategy to destroy the present enterprise bargain and set up a new one with lower base terms and conditions than the prevailing industry standards. To this end, the workers who were under an enterprise agreement with CUB had their wages slashed by as much as 65%, in addition to other benefits such as shift rates, redundancy payments, and other entitlements being reduced (Arnold, 2016). This led to a declaration of industrial action, and all the workers who were members of the Australian Manufacturing Workers Union (AMWU) and Electrical Trades Union (ETU) went on strike for more than six months.
At the heart of the matter was the deployment of labour from outside the organization to sidestep enterprise bargains and cut down on wage spending, which was becoming more prevalent in some sectors. The unions were of the view that what CUB had done, which was to engage in practices which undermined the management of the unions, was counter to the whole purpose of enterprise bargaining, which is to ensure that workers are provided with conditions above the bare minimum. The conflict was finally sorted out after the society members made them do it in public and after a countrywide boycott of CUB products. The workers were given their old jobs back, proving the impact of working together as a unit and the need for enterprise agreements to safeguard the employees' rights. This example points out the dangers of trying to roll back enterprise agreements. It demonstrates how the unions, as well as the public, assist in the regulation of decent living standards in the workplace.

Case Law Analysis of Enterprise Bargaining in Australia

The development and implementation of enterprise bargaining in Australia has been affected by many pivotal court decisions demonstrating how the law is dynamic and the complexities of enacting and interpreting laws. In this section, we will analyse the cases that have impacted the agreements reached between employers and trade unions and have addressed various issues such as the Better Off Overall Test (BOOT), good faith bargaining, and the Fair Work Commission (FWC) approval.

1. AMIEU v Coles Supermarkets Australia Pty Ltd [2016] FWCFB 2887

Enterprise bargaining has witnessed many landmark cases, and one such case is AMIEU v Coles Supermarkets Australia Pty Ltd. Here, the Fair Work Commission (FWC) revisited its approval of an enterprise agreement and rejected it based on its not passing the BOOT (Winckworth, 2016). Coles proposed this enterprise agreement, and the SDA agency supported it. However, the AMIEU claimed that this agreement frustrated the majority of Coles's workforce, particularly the casuals, as they do not get paid for working over weekends and public holidays when these rates are generally paid off (Winckworth, 2016). Initially, the FWC found that the enterprise agreement was unproven in that, on appeal, it was shown that thousands of workers, mainly casuals, were worse off on the agreement than they would have been had the modern award applied. The retraction of the agreement by the FWC was significant in showing the relevance of the BOOT in safeguarding entitled workers against exploitation (Fair Work Commission, 2016). It also emphasized that there is no justification for disadvantaging any group of employees in an enterprise agreement, notwithstanding benefits to others.

The case illustrates the FWC's resolute implementation of the BOOT and reminds employers that all enterprise agreements must conform to a standard that covers all employees, not just the majority.

2. CFMEU v Mammoet Australia Pty Ltd [2013] FCAFC 143

In CFMEU v Mammoet Australia Pty Ltd, proceedings were instituted by the Construction, Forestry, Mining and Energy Union (CFMEU) against Mammoet because it had not engaged in good faith bargaining regarding a new enterprise agreement. Mammoet refused to deal with the CFMEU and its bargaining representatives in violation of the good faith bargaining practices enjoined by the Fair Work Act 2009. This means that both sides must make an honest effort in agreeing, including holding meetings and evaluating proposals made, among other things (CRENNAN et al., 2023). The Federal Court acknowledged the CFMEU's claims and ruled that Mammoet did not fulfil its responsibilities according to the Fair Work Act. The court reinstated mandatorily good faith negotiations with Mammoet, which it found the latter had refused to adhere to.

This case illustrates that good faith bargaining is a critical tenet of the enterprise bargaining process. Employers have an absolute legal duty to conduct negotiations with the employees' representatives in a reasonable and fair manner; if this is not done, there are risks of sanctions and restarting the negotiation process.

Employers Perspective: Advantages and Challenges
Advantages for Employers
The legislative changes bring several advantages for employers

Enhanced Efficiency in Making Internal Agreements: Employers do not have to fear the technical details of BOOT when it comes to ensuring that their agreements suit them.

• Faster Turnaround Time: The faster the agreements are approved, the quicker the employers can make the changes in the workplace, which reduces risk and makes it easier for employers to plan their businesses (Fair Work Ombudsman, 2021).

• Provisions of the Third Wave: The industries significantly affected by the pandemic have been provided with fast-tracking provisions that help employers immediately change work conditions to fit the demand.

Disadvantages for Employers

Nevertheless, the changes are also challenging, such as:

• Legal Concerns: Even with the more relaxed BOOT provisions, employers may still face challenges in implementing the agreements, either in courts or through the unions, especially in cases where unions are powerful.

• More Stringent Controls: While the laws make the process easier, they also enhance the control exercised over the agreements by the unions and employees rights organizations, which may result in extended conflicts or strikes (Fair Work Commission, 2021).

Conclusion

Australian workplaces have seen changes in the law regarding enterprise agreements, especially the Fair Work Amendment (Supporting Australia's Jobs and Economic Recovery) Act 2021. These changes have generally tilted the balance in favour of enterprise agreements as far as employers are concerned because they have simplified the approval processes, provided more room for the application of the BOOT, and allowed faster agencies to be established in specific sectors. Alternately, the reforms' practical effect is that they diminish administrative burdens but introduce new risks, such as heightened industrial tensions. In other words, the recent changes to the law in this area should favour employers. However, they must still be managed and negotiated to achieve the most desirable outcomes.

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