By Clayton Utz's Amy Toohey and Jesse Rutigliano.
Enterprise bargaining clauses are adapting to changing societal norms at a quick pace and, with the promise of adjustments to the principles and guidelines of good faith bargaining, they could gather even more speed, writes Clayton Utz’s Amy Toohey and Jesse Rutigliano.
Enterprise Agreements (EAs), which are statutory agreements setting out the terms of the relationship between an employer and its employees, can be an interesting reflection of trends in, or the evolution of, working conditions. Sometimes the changes are to keep pace with new and developing societal norms, or they can be a reflection of consistent issues faced by a specific industry.
A pending EA between the Australian Youth Climate Commission (AYCC) and the Australian Services Union provides some examples of novel clauses:
Paid Climate Disaster Leave – provides 5 days’ leave per calendar year, which may be taken in circumstances where an extreme weather event affects an employee, a member of their family or community they belong to. The leave will not accrue year to year and will not be paid out upon termination.
Gender Affirmation Leave – provides up to 30 days of paid leave for essential and necessary gender affirmation or transition purposes, which can be taken as consecutive, single or part days. It also provides up to 12 months of unpaid leave.
The inclusion of Paid Climate Disaster Leave is the first of its kind, and likely related to the mission statement of the AYCC to build a movement of young people leading solutions to the climate crisis. The proposed inclusion of Gender Affirmation Leave as a term of the EA is unusual but has been emerging as content in workplace policies. In May 2022, Coles made a policy announcement to provide 10 days' paid gender affirmation leave for transgender and gender diverse employees.
As Generation Z (the cohort born between 1996 and 2012) joins the workforce (currently 16% work full time, 25% work part-time, and 20% work casually) employers may start to notice drivers for workplace entitlements that were not demanded by Millennial and Generation X predecessors. Values around digitalisation, work-life balance, and diversity are likely to be key motivations.
This, coupled with a commitment by the new Labor Government to increase access to arbitration during the bargaining process, may see the emergence of a change in typical EA terms and conditions. As stated in the 2021 Australian Labor Party platform:
“Labor will promote and ensure good faith bargaining in workplaces, including by developing guidelines on good faith conduct in negotiations to allow access to and assistance from the independent umpire to resolve disputes including giving parties access to arbitration.”
While not yet seen in practice, the changes may mean a more robust avenue for parties to arbitrate the bargaining process, which may give rise to new EA clauses.
Key takeaways for employers entering enterprise bargaining:
With a shake-up to good faith bargaining principles and guidelines, employers should expect to see previously unseen EA clauses presented by employee representatives or Unions.
The substance of each previously unseen EA clause will differ, and so may the advice about its inclusion in an EA.
However, in general, the inclusion of new benefits in workplace policies that sit outside of the EA is a good middle ground, as it allows employers to provide adjustments to the policy from time to time to suit workplace requirements.
This article was reproduced with permission from Clayton Utz and first appeared HERE
on 21 July 2022.