In a recent blog, we addressed the question “What happens if the FWC takes over deciding what will be in an enterprise agreement?”

In this blog we explore further what the FWC said and took into account in deciding the outcomes in the intractable bargaining determination decision in Transport Workers’ Union of Australia v Cleanaway Operations Pty Ltd [2024] FWCFB 287. We summarise the key points of interest below.

The FWC made the following statements of interest in the decision:

• the intractable bargaining legislative context does not detract from the FWC’s (and its predecessors’) earlier decisions on “workplace determinations” remaining relevant precedents because those specific legislative provisions have remained largely the same;
• while an outcome that is “fair in all the circumstances and that appropriately balances the interests of the parties” is the overarching objective, the maintenance of real wages (taking into account wages for workers in the same industry and in comparable instruments) will weigh heavily on the wages outcome;
• everyone is unlikely to get exactly what they want (as an incentive for future bargaining);
• the FWC indicates that it will lean towards productivity improvements (also as an incentive for future bargaining, because it creates the opportunity to bargain over the spoils of those productivity improvements);
• the concept of “productivity” is taken to mean the amount of “units” produced per unit of labour and is not the cost of each unit of labour;
• everything is potentially a relevant consideration and there are no limitations on what the parties could raise as an arguably relevant consideration (but whether the FWC agrees that the consideration is relevant, is not guaranteed);
• the FWC’s determination of the other major conditions in dispute will factor into the wage outcome, as such it will likely be the last item the FWC decides after it has decided all other major conditions in dispute;
• the CPI and Wage Price Indexes will significantly impact the wage outcome;
• where a clause in a current enterprise agreement is not in practical use, the FWC will take into account what the actual practice is in the workplace (which meant that in this case, the employer’s disuse of the current clause allowing for rostering of ordinary hours on weekends was outweighed by the employer’s own practice of paying overtime for work on weekends);
• a business can legitimately plan for future potential growth in a particular area, in this case it was legitimate for the employer to take steps to plan for the growth in organic waste disposal on weekends;
• the employer’s stated objective of wanting more direct hire employees because they were more cost effective than outsourced labour was accepted by the FWC as a basis for its claim for rostering ordinary hours on weekends (but this was also a basis for deciding against the employer in relation to the union’s claim for penalty rates for ordinary hours work on weekends); and
• the FWC was attracted to the longer term for the workplace determination proposed by employer of three years because it struck the right balance between providing incentives to bargain in the future and securing the benefits of the workplace determination for a certain period.

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