Arbitration in many enterprise bargaining rounds is becoming a "real possibility" under the government's industrial relations reforms, as employers warn the system has grown more complex, more costly, and less productive, according to a new report.
A Herbert Smith Freehills Kramer (HSF Kramer) survey of 65 senior leaders and IR practitioners in Australia found that enterprise bargaining rounds are now usually taking nine to 12 months.
Another 17% said the process is taking more than 12 months.
Rohan Doyle, an industrial relations partner at HSF Kramer, said these bargaining timeframes are "significant."
"Because after nine months of bargaining, and provided the current agreement has been expired for nine months, unions and employees are able to request that the Fair Work Commission end bargaining by arbitration," Doyle said.
"It shows that arbitration is a real possibility in a large portion of enterprise bargaining rounds. Employers generally view this as a risk, as it means they lose control over the outcome."
The FWC has the authority to make an intractable bargaining workplace determination when bargaining parties cannot be settled within a specified post-declaration negotiation period.
This intractable determination ultimately decides the terms and conditions of employment that parties cannot agree upon, replacing what would otherwise have been the enterprise agreement.
Nearly three in four (74%) of HSF Kramer's respondents disagreed that intractable bargaining...
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