Anthony Forsyth

Old game, new rules? The dynamics of enterprise bargaining under the Fair Work Act

Over the last quarter century, enterprise bargaining has evolved to be a primary mechanism through which wages and conditions of employment are determined in Australia. Since the introduction of the Fair Work Act, the process for negotiating enterprise agreements has been governed by principles of good faith bargaining. There has been considerable debate over the potential for these provisions to change the dynamics of bargaining, yet empirical evidence of these effects remains limited. This article reports on a field study investigating the experiences of industrial parties negotiating enterprise agreements during the first three years of the Fair Work Act. Drawing on the tribunals own case management database, along with a large sample of interviews, the study provides a more systematic examination of the extent to which the parties have deployed the new principles governing collective bargaining, with a particular focus on good faith provisions, and whether these principles have altered the dynamics of bargaining practices.

Industrial legislation in Australia in 2015

This review article examines the impact of another year of tumult in federal politics on the Coalition Government’s workplace reform agenda. The article outlines the fortunes of the industrial relations bills the Government had introduced into Parliament in 2013–2014, and a number of others introduced in 2015. These include a bill to implement former Prime Minister Tony Abbott’s proposed dilution of the federally-funded paid parental leave scheme. In addition, the Productivity Commission’s proposals for changes to the federal workplace relations framework are examined and assessed, along with the Royal Commission into Trade Union Governance and Corruption Final Report, as these are shaping the reform debate in the lead-up to the forthcoming federal election. The article then examines significant legislative developments at state level. The article concludes by assessing the likely direction of labour law change under Prime Minister Malcolm Turnbull.

Major court and tribunal decisions in Australia in 2014

The year 2014 saw the long-awaited ruling by the High Court of Australia on whether an implied term of mutual trust and confidence exists in employment contracts. In unanimously finding against the existence of such a term, in Commonwealth Bank of Australia v Barker (2014) 312 ALR 356, the Court has taken the common law of employment in Australia in a profoundly different direction from that of the United Kingdom. The year also witnessed several other significant decisions dealing with the contract of employment, the general protections provisions of the Fair Work Act 2009 (Cth) and the new anti-bullying jurisdiction of the Fair Work Commission. Major decisions in 2014 also addressed key features of the statutory framework for enterprise agreements and collective bargaining, as well as penalty rates under modern awards.

Contractual Incorporation of Award Terms: Byrne and Frew v. Australian Airlines Limited:

* Articled Clerk, Blake Dawson Waldron, Melbourne. The author wishes to acknowledge the assistance of Professor Ron McCallum in the preparation of this note. The law relating to termination of employment in Australia has undergone many changes in recent years. Perhaps the most important of these was the decision on appeal of the Federal Court in Gregory u Philip Morris,’ in which it was accepted (by majority) that an award term prohibiting ’harsh, unjust or unreasonable’ termination of employment formed part of an employment contract regardless of the intention of the parties to the contract. However, in Bynie and Frew v: Australian Airlines Limited,2 where the court was invited to reconsider the principle established in Gregory v. Philip Morris, a majority of the five members of the court decided to overturn that landmark decision. The decision in Byrne and Frew