If the union’s offer seems too good to be true…

Unions have changed their tune. Instead of pushing for new EBAs they are trying to extend pre-WorkChoices agreements. But, reports ANDREW DOUGLAS, you need to ask why.

By Andrew Douglas

Workplace agreements

Unions have changed their tune. Instead of pushing for new EBAs they are trying to extend pre-WorkChoices agreements. But you need to ask why.

Have you noticed that unions have changed their tune in the last three months? It used to be about whether you would do a deal in a common law agreement on prohibited matters, and they would push for a secret ballot on the enterprise bargaining agreement (EBA) so industrial action would persuade you to agree to terms.

Now, thanks to the transitional IR provisions, the unions are suggesting to merely vary, under Division 7 of the Workplace Relations Act 1996, your pre-WorkChoices agreement seeking extension of pre-WorkChoices agreements for up to three years.

No talk on the common law deal on prohibited matters, and a strong suggestion there will be no dislocation of your business due to industrial action. Just “let’s go to the Commission and vary and extend it”. And many businesses are doing just that.


Because it allows the union to keep all the otherwise unlawful content in the old EBA and negotiate broadly across the terms of the agreement.

That was not the intention of the transitional IR reform. It was aimed at simply varying rates of pay and rolling over agreements to achieve speed and efficiency in bargaining. But that is not how it is working out – everything is up for grabs.

If you don’t consent to the scope of the variation sought by the union, the union can return to the old game of seeking a separate memorandum or common law contract on prohibited content and pursuing industrial action on the collective agreement. The transitional IR reforms have become another tool, which comes with the threat: “We can either do this the easy way (read; variation), or we can do it the hard way (read; industrial action)!”

How do you protect your business?

First, think carefully whether the prohibited content affects your business. The key issues WorkChoices gave you was flexibility and direct access with your employees.

These benefits deserve consideration. If you decide that the prohibited content does not affect your business, then it does not matter whether you accept a variation or some common law agreement preserving the prohibited content.

If it does adversely affect your business – have none of it.

I suggest you say the following to the union: Happy to vary the agreement removing critical prohibited content and making a simple variation to the scale of pay – otherwise I am content to negotiate a new agreement.

If you cannot quickly get a varied agreement; stop the negotiation, note that you cannot accept the varied agreement, and that you wish to negotiate a new agreement. Advise the union you will not agree to prohibited content in any way and you only wish to discuss the legitimate matters in the collective agreement.

With the variation approach, there is a real risk of throwing the baby out with the bath water. You have a chance to change the industrial instrument in your business to exclude the interference of the union from the day-to-day management of your business, gain flexibility, direct access to employees and simplicity of language in the agreement so that all managers and employees can understand it.

Why not take it? Do not accept a varied agreement if it continues a structure within your business that holds you back. By throwing away the opportunities of a new agreement for the speed of a varied agreement, many throw away the cultural and business advantages gained in a new agreement.

Some things look to good to be true. The variation offer of the union often is.


Andrew Douglas, Douglas Workplace & Litigation Lawyers

Andrew Douglas is the founder, principal lawyer and managing director of Douglas Workplace & Litigation Lawyers. Andrew is an experienced commercial litigation and workplace lawyer, who acts both as a solicitor and advocate.



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