Enterprise agreement making under the Fair Work Act 2009 (Cth) (FW Act) requires bargaining representatives to bargain in good faith. Under the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (Cth), the Fair Work Commission (FWC) was provided with new powers to arbitrate and issue a workplace determination to resolve intractable disputes about terms and conditions of a proposed enterprise agreement in circumstances where there are no reasonable prospects of the parties reaching an agreement.
The Full Bench of the FWC in Transport Workers' Union of Australia v Cleanaway Operations Pty Ltd T/A Cleanaway Operations Pty Ltd [2024] FWCFB 287 recently made the first intractable bargaining workplace determination under the new provisions.
The Transport Workers’ Union of Australia (TWU) and Cleanaway Operations Pty Ltd (the Employer) were bargaining for a new enterprise agreement covering drivers at its Erskine Park, NSW location.
The two main matters in dispute between the parties concerned the wages offer and arrangements for ordinary hours of work. The Employer wanted the ordinary hours of work such that employees could be rostered to work Monday to Sunday. The TWU wanted the ordinary hours of work to reflect the current operational practice where ordinary hours were Monday to Friday, with weekend work to be performed on a voluntary basis and paid at overtime rates.
In October 2023, the TWU made an application to the FWC for an intractable bargaining declaration. In January 2024, the FWC issued the declaration and provided the parties with a further period to negotiate the matters which were still in dispute and provided assistance to the parties by way of private conference.
At the conclusion of the post-declaration negotiating period, agreement was still not reached between the Employer and the TWU. The matters which remained in dispute concerned concerning the ordinary hours of work, weekend penalty rates, wage increases, consultation and the expiry date.
In accordance with the FW Act, the Full Bench of the FWC was required to make an intractable bargaining workplace determination. After hearing submissions from the Employer and the TWU, the Full Bench made determinations in relation to the matters in dispute, including the pay increases which would apply during the term of the workplace determination.
The consequence of an intractable bargaining workplace determination is that the FWC determines the terms and conditions of employment where agreement could not be reached by bargaining representatives. The determination will be in place of what would have been the new enterprise agreement that was being bargained between the parties.
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