The Fair Work Act: Encouraging collective agreement-making but leaving collective bargaining to choice

Abstract

Policies promoting enterprise bargaining in Australia are often associated with collective bargaining. However, collective bargaining does not accurately describe a range of enterprise bargaining activity and some Australian researchers have instead used the term collective agreement-making. The Fair Work Act 2009 signifies a substantial consolidation of enterprise bargaining practices by instituting a single collective agreement-making process, which this article examines through formalistic legal analysis. The analysis explores the ways enterprise bargaining practices under the Fair Work Act are allowed to diverge from collective bargaining. This article contributes to our understanding of collective agreement-making processes by explicating two important dimensions of variation: how employees are represented and how terms of agreement are derived. Whether collective agreement-making under the Fair Work Act’s procedures aligns with collective bargaining is found to depend upon the choices of individual participants, particularly employees’ choices between five broad representative forms and bargaining representatives’ conduct, especially the employer’s. In extreme cases, there may not be any employee representation, and employers may exploit the legal meaning of ‘agreement’ to avoid meaningful negotiation and instead pursue employee acquiescence in a voting procedure.