Key Points:
FWA's rejection of opt-out clauses significantly
restricts the flexibility that they could have offered for parties
to an enterprise agreement.
The five-member Full Bench of Fair Work Australia has overturned
the approval of an enterprise agreement with an opt-out clause,
spelling an end to the question of whether they are permitted under
the Fair Work Act 2009 (Cth) – leaving employers whose
employees have opted out with a practical problem (CFMEU v
Queensland Bulk Handling [2012] FWAFB 7551).
What is an opt-out clause?
An opt-out clause allows an employee to choose not to be covered
by an enterprise agreement and have their terms and conditions
regulated by individual contracts. Opt-out clauses have caused
considerable controversy because they are said to undermine the
notion of collective bargaining itself.
