One of the key objectives of the Industrial Relations Reform Act 1993 (Cwlth) is to develop an industrial relations system in Australia based on enterprise bargaining. To make enterprise bargaining accessible to the non-union sector the legislative framework provides for the making of enterprise flexibility agreements. These agreements can be made directly between employer and employees without union involvement where the workforce is not unionized. It has thus been popularly referred to as the 'non-union' bargaining stream. This article examines the extent to which the legislation on enterprise flexibility agreements does provide for nonunion workplace bargaining. It does so by examining the way in which the legislation provides for union involvement at the various stages in the process of negotiating and formalizing an enterprise flexibility agreement. The provision in the legislation of a formal system of non-union bargaining has been criticized as posing a threat to the traditional representational role played by unions in Australian industrial relations. In this context, the role of the Bargaining Division of the Australian Industrial Relations Commission in facilitating bargaining and its decisions concerning the rights of a union to represent employees in their negotiations with the employer are also considered. Finally, some conclusions are offered as to why only a relatively small number of enterprise flexibility agreements have been approved.

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Federal industrial relations in 1999 were marked by a continuing increase in the role played by the ordinary courts. This not only demonstrates the willingness of the parties to turn to the courts for assistance in resolving industrial disputes, but also reflects the increasing complexity and juridification of our industrial relations system. The diminished capacity of the Australian Industrial Relations Commission to arbi trate and the increased devolution of responsibility for industrial relations outcomes to the parties were also highlighted in decisions of the commission. In other key decisions, limitations on the tactics that can be used in the enterprise bargaining process were examined.

of years and would 'not be told what to do', was not a bar to his arguing that he was an employee when seeking an unfair dismissal remedy. 40

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