The High Court of Australia (HCA) recently handed down two decisions which have significant implications relating to important aspects of the Fair Work Act’s bargaining regime.
These decisions provide employers with some welcome clarity on the relevant legislative provisions, and will likely have a direct and immediate impact on enterprise bargaining across all sectors of industry.
In Esso Australia Pty Ltd v Australian Workers’ Union  HCA 54, the High Court held that the AWU, which had been engaged in bargaining for an enterprise agreement with Esso, did not have the capacity to engage in protected industrial action because it had previously breached an order of the Fair Work Commission relating to the bargaining. This decision is likely to elevate the importance of orders obtained by parties during the course of bargaining, given the possibility that a bargaining party may lose the ability to engage in protected industrial action in support of their claims in bargaining, if the party does not comply with an order.
In ALDI Foods Pty Ltd v Shop, Distributive and Allied Employees Association  HCA 53, the High Court confirmed that ALDI was able to make an enterprise agreement in relation to a new enterprise with existing employees who had been employed in relation to the enterprise, even though the enterprise had not yet commenced operation and the employees had not yet commenced work in the new enterprise.
This decision clarifies that, in a situation where an employer is establishing a new enterprise that has not yet commenced operations, a greenfields agreement (which must be made directly with at least one relevant union) are not the only agreement-making option available.
If you have any queries arising in relation to these recent High Court decisions, or would like to discuss with AMMA any of your enterprise bargaining issues more generally, please contact any one of our consultants.
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