Proctor : March 2018
27 PROCTOR | March 2018 Master your career. Real-world programs to master your career. The College of Law offers postgraduate programs developed by practitioners for practitioners, so you can better master your chosen area of specialisation or accelerate your learning in a whole new area of practice. Four intakes per year: February, May, August and November Enrol today for the May intake at collaw.edu.au/ALP or call 1300 506 402 Matthew Giles and Andrew Ross look at how ALDI Pty Ltd v Shop Distributive & Allied Employees Association & Anor has reconsidered the law on enterprise agreements for new enterprises. bargaining process, as employers must comply with all of the time-specific notification and voting requirements required before a non-greenfields EA can be approved. The High Court also made note that a non-greenfields EA can be made with two or more employees, such that “a small group of employees may be able to fix the terms and conditions of employment for all the employees who may be employed in the enterprise in the future”, 11 and that “[i]t does not matter that the agreement may, in due course, come to apply to many more employees”. 12 This is a space to watch for legislative reform, given that employers will now be able to negotiate with only a select few existing employees to create a new EA, circumventing negotiations with unions under the greenfields process and limiting the number of employees that are eligible to vote. Labor’s Shadow Minister for Employment and Workplace Relations, Brendan O’Connor, has already pledged that “Labor will legislate to make clear that the workers who vote on an [enterprise] agreement must be representative of the workers who may ultimately be covered by the agreement” and that “Labor will also change the law so that workers and their unions can apply to the Fair Work Commission to re-negotiate sham enterprise agreements”. 13 Workplace law Matthew Giles is a lawyer and Andrew Ross is a senior associate at Sparke Helmore Lawyers. The authors gratefully acknowledge the assistance of Edwina Sully in the preparation of this article. Notes 1  HCA 53. 2 s172(2)(b)(ii) of the FW Act. Note: as per s12 of the FW Act, ‘enterprise’ will include new businesses, activities, projects or undertakings. 3 Under s186(2)(a) of the FW Act. 4 At  in ALDI. 5 Citing Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 at 381-382 -. 6 At  in ALDI. 7 At  in ALDI. 8 Seess52and53oftheFWAct. 9 At  in ALDI. 10 At  in the ALDI decision references how s207(4) of the FW Act “utilises the present perfect tense ‘have been’ to reflect the circumstance that greenfields agreements may only be made where no employees were employed at the time the agreement was made”. 11 At  in ALDI. 12 At  in ALDI. 13 “Shorten Government would outlaw ‘sham’ enterprise deals”, Workplace Express, 18 October 2017, workplaceexpress.com.au/nl06_news_selected.php? act=2&nav=10&selkey=56163&utm_source=instant+ email&utm_medium=email&utm_campaign= subscriber+email&utm_content=read+more&utm_ term=Shorten%20Government%20would%20 outlaw%20%22sham%22%20enterprise%20deals.