covid19-law.com.au
13. Industrial
B. Enterprise Agreements
i. Legislation
Commonwealth:
Made under the Fair Work Act 2009 (Cth):
ii. Case law
In Y40 Steelfixing Pty Ltd [2020] FWCA 2139, the Fair Work Commission held that it would not be contrary to public interest to terminate an enterprise agreement pursuant to s 225 of the Fair Work Act 2009, in circumstances where the relevant employer no longer had any employees, primarily due to the coronavirus pandemic ([8], [17]).
In Seven Network (Operations) Limited [2020] FWCA 2387, the Commission considered the Seven Network's application for approval of a variation to the Seven Network (operations) Limited (News, Public Affairs and Operations) Agreement 2019 under s 210 of the Fair Work Act 2009. The variation would have the effect of removing the entitlement to a 2% wage increase payable from the first full pay period after 4 April 2020, which would require the Commission to give retrospective operation to the variation. The Commission accepted that, generally, the approach of the Commission is to approve variation decisions or termination of agreement decisions from the date the Commission Member determines the matter. However, the advent of the COVID-19 pandemic and the significant impact that it was having on a range of industries including this industry was an exceptional circumstance. The Commission approved the variation and ordered it to operate from 6 April 2020, being the date that employees were made aware of the proposal for change.
Some issues relating to enterprise agreements during the COVID-19 pandemic may be capable of agreement between employers and employees.
In Australian Municipal, Administrative, Clerical and Services Union [2020] FWC 1787, the Fair Work Commission held that the circumstances of the COVID-19 pandemic did not weigh against a finding that the making of a bargaining order was “reasonable in all of the circumstances” for the purposes of s 230(1)(c) of the Fair Work Act 2009 ([202]).
In DHL Supply Chain (Australia) Pty Limited v United Workers’ Union [2020] FWC 1581, the Fair Work Commission recorded an agreement reached between the employer (a supply chain management company) and the United Workers’ Union, providing for: the temporary redeployment of employees, in certain of the employer’s supply chain operations that had been affected by COVID-19, to other industries with available work; and the application of the affected employees’ existing terms and conditions of employment to the redeployments.
There is evidence that the COVID-19 pandemic, and the disruption caused by it, has legitimately impacted upon the progress of enterprise bargaining. However, what may have been a legitimate reason to pause or slowdown bargaining in the early stages of the pandemic, so as to assess its business and operational effects, does not necessarily hold true months later following the significant improvement of the general community situation. Even if a company has suffered a very significant decline and is in receipt of JobKeeper payments, that is not a legitimate reason not to meet or to bargain. Where a company fails to agree further meeting dates and arrangements when the general community situation was stable enough for bargaining to resume, it may be in breach of good faith bargaining requirements: United Workers’ Union [2020] FWC 3246, [42]-[48]. Cf Australian Workers' Union, The v Forestry Corporation of NSW [2020] FWC 3237.
iii. Further resources
B. Enterprise Agreements
i. Legislation
Commonwealth:
Made under the Fair Work Act 2009 (Cth):
- Fair Work Regulations 2009 amended by the Fair Work Amendment (Variation of Enterprise Agreements) Regulations 2020: reduces the “access period” under s 180(4) of the Fair Work Act 2009 (Cth) from seven days to one day (expiring on 16 October 2020).
ii. Case law
In Y40 Steelfixing Pty Ltd [2020] FWCA 2139, the Fair Work Commission held that it would not be contrary to public interest to terminate an enterprise agreement pursuant to s 225 of the Fair Work Act 2009, in circumstances where the relevant employer no longer had any employees, primarily due to the coronavirus pandemic ([8], [17]).
In Seven Network (Operations) Limited [2020] FWCA 2387, the Commission considered the Seven Network's application for approval of a variation to the Seven Network (operations) Limited (News, Public Affairs and Operations) Agreement 2019 under s 210 of the Fair Work Act 2009. The variation would have the effect of removing the entitlement to a 2% wage increase payable from the first full pay period after 4 April 2020, which would require the Commission to give retrospective operation to the variation. The Commission accepted that, generally, the approach of the Commission is to approve variation decisions or termination of agreement decisions from the date the Commission Member determines the matter. However, the advent of the COVID-19 pandemic and the significant impact that it was having on a range of industries including this industry was an exceptional circumstance. The Commission approved the variation and ordered it to operate from 6 April 2020, being the date that employees were made aware of the proposal for change.
Some issues relating to enterprise agreements during the COVID-19 pandemic may be capable of agreement between employers and employees.
In Australian Municipal, Administrative, Clerical and Services Union [2020] FWC 1787, the Fair Work Commission held that the circumstances of the COVID-19 pandemic did not weigh against a finding that the making of a bargaining order was “reasonable in all of the circumstances” for the purposes of s 230(1)(c) of the Fair Work Act 2009 ([202]).
In DHL Supply Chain (Australia) Pty Limited v United Workers’ Union [2020] FWC 1581, the Fair Work Commission recorded an agreement reached between the employer (a supply chain management company) and the United Workers’ Union, providing for: the temporary redeployment of employees, in certain of the employer’s supply chain operations that had been affected by COVID-19, to other industries with available work; and the application of the affected employees’ existing terms and conditions of employment to the redeployments.
There is evidence that the COVID-19 pandemic, and the disruption caused by it, has legitimately impacted upon the progress of enterprise bargaining. However, what may have been a legitimate reason to pause or slowdown bargaining in the early stages of the pandemic, so as to assess its business and operational effects, does not necessarily hold true months later following the significant improvement of the general community situation. Even if a company has suffered a very significant decline and is in receipt of JobKeeper payments, that is not a legitimate reason not to meet or to bargain. Where a company fails to agree further meeting dates and arrangements when the general community situation was stable enough for bargaining to resume, it may be in breach of good faith bargaining requirements: United Workers’ Union [2020] FWC 3246, [42]-[48]. Cf Australian Workers' Union, The v Forestry Corporation of NSW [2020] FWC 3237.
iii. Further resources
|
Image credit: Fusion Medical Animation
|
Site powered by Weebly. Managed by SiteGround