IR battle lines drawn for 2018
An article from HR Daily, describing the upcoming Trends in Industrial Relations, for 2018.
The impact of low wages growth is starting to hit home for HR professionals, with “industrial battle lines drawn” for 2018.
The impact of low wages growth is starting to hit home for HR professionals, with “industrial battle lines drawn” for 2018, according to a workplace lawyer.
Whether enterprise bargaining is still the model for the future hinges on three key factors, he says. The first is that businesses are finding it increasingly difficult to meet wages growth demands; the second is that EAs take 71 days on average to be approved, up from 49 days in 2016, “on top of already lengthy negotiations”.
The third is increasingly complex disputes about agreement interpretation, with negotiation stalemates tending to lend themselves to “mutually incompatible meanings”.
These issues are going to be a key challenge for HR professionals this year because of their involvement in bargaining at a number of different stages, such as negotiating EA terms with unions and employees and then, once the agreement is approved in the Fair Work Commission, in interpreting those terms, Stutley says.
“What often happens is there will be clauses which are unclear, or clauses which can be interpreted differently depending on who’s reading them, and [a dispute] will obviously work its way to HR in the first instance for resolution, but if it doesn’t resolve there, then to the Fair Work Commission,” he says.
When disputes end up in the FWC, HR professionals can be called on to give evidence about how they managed the issue and how they were involved at the negotiation stage, to help the Commission interpret the intention of disputed clauses.
This played out in a recent case where the Australian Services Union and the Community and Public Sector Union disputed the ATO’s decision to require some workers to “hot desk”. The unions argued the ATO’s 2017 EA was “ambiguous” but its intention was for only limited hot desking, while FWC Vice President Joe Catanzariti ultimately disagreed with their restricted view. (The ASU is appealing the decision.)
HR professionals must ensure at the negotiation stage that enterprise agreement clauses are “really clear”, to help avoid interpretation issues later, Stutley says.
“If the parties are trying to just brush over an issue, or leave it to last, or trying to work out some words that they’re both happy with that don’t back them into a corner, then try and explore it in more detail, try and get to the bottom of what the issue really is.”
Using examples can be helpful, and doesn’t occur as often as it could, he notes. If an EA says, for example, that long service leave on a pro-rata basis can be taken at five years rather than 10, “set out an example of how that might work in practice, so that there is no ambiguity on how the clause operates”.
Detailed notes of negotiations will also support HR professionals’ position if a dispute ever arises in the Commission, “because those will become the contemporaneous record about what the intention of the parties was when drafting the agreement”.
“The key point to remember: clear and unambiguous drafting is not going to stop disputes… but it will go a long way to making them more efficiently dealt with, and that’s important because there are time costs and productivity implications from disputes, whether at the workplace level or, more importantly, at the Fair Work Commission and court level.”