Factory lockout ends, but questions remain over Fair Work flexibility clauses

The end to a lockout at a Campbell’s Soup factory in regional Victoria has raised questions about whether flexibility clauses in the Rudd Government’s new Fair Work industrial relations regime will actually allow employers and workers the ability to negotiate individual arrangements such as specific working hours, overtime and penalty rates.

The dispute at Campbell’s centered on a flexibility clause that was to be inserted in the company’s enterprise agreement. To solve the impasse, Campbell’s has agreed to use the clause suggested by the Australian Manufacturing Workers Union, which is worried the bosses could use the flexibility clauses to undermine the enterprise bargaining process.

Under the Rudd Government’s next Fair Work regime, flexibility clauses need to be part of every enterprise agreement.

The clauses are designed to allow employers and employees to negotiate flexible working arrangements (such as modified working hours, overtime and penalty rates) on an individual basis.

But despite the fact that an employer must prove that an individual flexibility arrangement does not leave an employee worse off – and despite the fact unions typically support measures to improve work/life balance – unions are ideologically opposed to the use of the agreements and believe they represent a return to individual bargaining.

Under the deal struck at Campbell’s, the company will only be able to negotiate flexibility agreements with groups of workers, and these can only be accepted if the majority of that team supports the offer.

Industrial relations lawyer Peter Vitale of CCI Lawyers says the episode places huge doubts on whether the flexibility agreements can actually be effective.

“What’s happened at Campbell’s has giving rise to some serious doubt as to how far employers are going to get with this,” he says.

“The history of this union suggests they will roll this out across other employers. From their perspective it’s all about keeping as tight a grip on their members as possible.”

Vitale says the issue may eventually force the Government to review this area of the Fair Work regime.

“It demonstrates that potentially the Government may need to amend the legislation in relation to flexibility agreement. This pretty clearly demonstrates that the requirement to have a flexibility agreement can be manipulated against the intent of legislation.”