Major Tribunal Decisions in 2010

Abstract

This article examines a number of Full Bench decisions from Fair Work Australia in 2010, in particular those relating to agreement-making and enterprise bargaining under the Fair Work Act 2009. Those decisions have shed further light on the operation of what remains relatively new legislation. With respect to agreement-making, the Full Bench has evinced an intention to take a practical and non-technical approach in determining whether the pre-approval requirements under s.180 of the Act have been met, and to afford employers an opportunity to address any concerns about approval of an agreement by way of undertakings. The Full Bench decisions examined in this article also demonstrate that Fair Work Australia will take a non-interventionist approach to enterprise bargaining and protected industrial action. Provided the parties are conducting themselves in accordance with the Fair Work Act, the tribunal will be loath to intervene in enterprise bargaining in a way that would alter the status quo or undermine the bargaining position of a party. The rationale for this approach is that, in the absence of any meaningful powers of compulsory arbitration under the Fair Work Act, enterprise bargaining is now the only means by which employees can collectively negotiate terms and conditions above the minima set down under modern awards and the National Employment Standards.