Draft Fair Work (Statement of Principles on Genuine Agreement) Instrument 2023
The Law Council of Australia provided a submission to the Fair Work Commission (Commission) in relation to the Draft Fair Work (Statement of Principles on Genuine Agreement) Instrument 2023 (Draft Statement of Principles). This submission has been prepared with the assistance of the Industrial Law Committee of the Law Council’s Federal Litigation and Dispute Resolution Section and the Law Society of New South Wales.
The Draft Statement of Principles is designed to provide additional guidance for employers to ensure that employees have genuinely agreed to an enterprise agreement, in accordance with the Commission’s obligations under section 188B of the Fair Work Act 2009 (Cth) (FW Act), as amended by the Fair Work Legislation Amendment (Secure Jobs Better Pay) Act 2022 (Cth).
The Law Council’s primary concern with the Draft Statement of Principles is that it is not drafted as a ‘statement of principles’, but rather as a proscriptive legislative instrument which largely—but not completely—replicates the provisions of the amended FW Act. In doing so, the document introduces new terms that do not appear in the sections that it purports to replicate (see, for example, the discussion of Principle 19 below). The Law Council considers this could lead to confusion and additional disputes.