How to plan for EBA negotiation success – Part 5

In the previous articles I provided tips on how to plan for EBA negotiation success, how to ‘set the table’ at the start of the negotiation and control the process, and then how to ‘maximise the pie’ and ‘close out’ the deal at the bargaining table. This article is how to draft clear and concise agreement clauses.

The FW Act enables employers and unions to bargain over a much wider range of matters than that permitted under Work Choices and its restrictive “prohibited content” rules.

In most instances, your previous collective agreement will form the template for your proposed agreement. If you do not have a previous collective agreement you may encounter the union suggesting using the underlying Award and transforming it into a collective agreement format. This will usually mean a lengthy, complicated and unwieldy template for an agreement and we would advise against such an approach.

Alternatively, the union may suggest using a standardised union template as the basis for the agreement, in order for them to achieve conformity with other collective agreements they have concluded with other businesses in your industry.

Regardless of the style or “look” of the new agreement, ensuring wording the clauses in a way that maintains control of how you employ your people, how you achieve flexibility and drive performance on site and, as much as possible, how you discipline and performance manage your employees, will be crucial. I have a number of carefully-worded clauses which I insist on writing into agreements, which will save employers interpretative disputes and hassles ‘down the road’.

Because of the strict requirements imposed in the FW Act concerning lodging agreements with the FWC, and the requirements concerning agreement content (such as “permitted matters” and “non-allowable terms”) we recommend reminding the union of this, and asking them to have the union Industrial Officer review the proposed agreement and provide approval to its content before being submitted to employees for a vote.

All proposed agreements need to be approved by FWC before commencing operation. At the time the proposed agreement is lodged, parties will be required to submit a statutory declaration setting out details of the proposed agreement. The proposed agreement will be signed by the employer and somebody on the employee’s behalf (importantly, this does not need to be the union).

Given the complexity of the current bargaining regime, it pays to have a bargaining specialist partnering with you throughout this process to provide you with the required documents and to ensure you are meeting the requisite procedural deadlines.

Despite this, please note the following examples of procedural requirements included in the FW Act: the employer only being able to request employees vote on whether to approve the proposed agreement seven days or more after providing them with a copy of the agreement and 21 or more days after providing employees with a “Notice of Representational Rights” – s 181; within 14 days of the proposed agreement being “made”, a bargaining agent having to apply to FWA for approval of the proposed agreement, attaching a signed copy of the proposed agreement and relevant declarations and signatures (s 185(3)); and an agreement commencing operation seven days after FWA approves it (or if a later date if specified in the agreement, from that date).

What do you do if you have missed one of the above steps? How did you find this article? What challenges did you experience when it came to drafting, and finalising wording, on your proposed agreement? Did you insist on your preferred wording and ‘hold the line’ or take a more conciliatory approach?

Workplace Wizards partners with employers throughout EBA negotiations to ‘close out’ negotiations and draft, review and finalise proposed EBA wording. Email me at mark@workplacewizards.com.au for the previous articles in this series or to find out more.

Mark Ritchie

Mark Ritchie

Mark is passionate about helping Australian businesses efficiently resolve their industrial relations issues. Mark has demonstrated proficiency advising managers, executives and boards of small to medium-sized enterprises, as well as some of Australia’s best-known companies, on both litigious and non-litigious matters.

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