Universities attack Labor’s new industrial relations law

A new law prevents the Fair Work Commisssion from making employees worse off when solving an enterprise bargaining impasse.

Workers in universities will not be able to be made worse off by a Fair Work Commission ruling that resolves an enterprise bargaining impasse.

Universities have come out strongly against Labor’s new “intractable bargaining” provision, which prevents industrial relations umpire the Fair Work Commission from reducing workers’ conditions when it resolves a bargaining impasse.

The provision – part of the Fair Work Legislation Amendment (Closing Loopholes No.2) Bill 2023, which has been passed by both houses and is awaiting royal assent – allows the Fair Work Commission to arbitrate if an enterprise agreement has not been reached after at least nine months of negotiation and there is no prospect of agreement.

An amendment, driven by the Greens and accepted by Labor, means the commission cannot make a ruling about any disputed matter that would reduce an existing employee condition.

The Australian Higher Education Industrial Association, which is the employer association for 33 universities, says the amendment means unions will be able to effectively “grandfather” parts of an enterprise agreement that are no longer fit for purpose and that inhibit productivity gains.

“The new law effectively strips the Fair Work Commission of the ability to genuinely address productivity-related issues,” AHEIA executive director Craig Laughton said.

“The change to the law will result in a ‘term by term’ focus, resulting in antiquated and unproductive provisions being retained to the detriment of staff and employers.”

Mr Laughton said all negotiation involved compromise and trade-offs.

“From now on, this will be limited by law in Australia, with one side calling the shots and an umpire without a whistle,” he said.

“If the independent umpire can’t run community standards across the sector, which is effectively what this prohibition does, how do you get the union to the table to bargain?”

Mr Laughton called for the law to be reconsidered.

However, National Tertiary Education Union general secretary Damien Cahill welcomed the amendment and said it was a major win for workers.

“Now workers will have a guarantee that any final call the workplace umpire makes when arbitrating bargaining disputes will leave no one worse off,” Mr Cahill said. “These changes will make it harder for vice-chancellors and senior executives to game workplace laws in attempts to drive down pay and conditions.

“Unfortunately, we were seeing some universities stalling negotiations in an attempt to push for arbitration.

“The NTEU exposed this agenda last year and it is good to see the government has responded with much-needed changes.

“Now workers will have a guarantee that any final call the workplace umpire makes when arbitrating bargaining disputes will leave no one worse off.”

But Mr Laughton said the new law would allow unions to hold up negotiations in the knowledge they had nothing to lose if the matter went to arbitration.

The new provision will be tested when the next round of university enterprise bargaining starts next year.