The Fair Work Amendment (Bargaining Processes) Bill 2014 (the Bill) was recently introduced into Parliament and has a strong focus on workplace productivity and progressing the bargaining process.

If the Bill is passed it will require the Fair Work Commission (FWC), when approving enterprise agreements (but not greenfields deals), to be satisfied that parties discussed productivity improvements during the bargaining process. Whilst the parties need not reach actual agreement on productivity the FWC will need to be satisfied that the parties have at least considered how productivity in the workplace could be improved.

In relation to protected action, the Bill will raise the industrial action threshold to encourage the progression of the bargaining process rather than allowing industrial action to be used as a first resort action. The FWC will be required to have regard to a range of non-exhaustive factors to guide its assessment of whether an applicant for a protected action ballot order is genuinely trying to reach an agreement (e.g. the extent to which the applicant has communicated its claims to the employer and the extent to which bargaining has progressed). The Bill also provides that the FWC must not make a protected action ballot order where it considers that an applicant’s claims for the order are “manifestly excessive or would have a significant adverse impact on productivity at the workplace”.

The Bill is the fourth one introduced by the Coalition since winning office in September 2013. The first three bills (Fair Work (Registered Organisations) Bill, Building and Construction Industry (Improving Productivity) Bill and the Fair Work Amendment Bill) remain either blocked or held up in the Senate.

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