The year 2009 has seen significant change in Australian industrial relations, in particular, the repeal of the Workplace Relations Act 1996 and its replacement with Labor’s Fair Work Act 2009. From 1 July 2009, a new industrial tribunal, Fair Work Australia, replaced the Australian Industrial Relations Commission. The decisions issued by Fair Work Australia (FWA) since 1 July 2009 have put the provisions of the Fair Work Act into practice and perspective. This article focuses on those decisions which have dealt with enterprise bargaining and the agreement-making process under the Fair Work Act. Those cases demonstrate that the new agreement-making process is procedurally complex, and that FWA lacks discretion to approve enterprise agreements notwithstanding some procedural irregularity. FWA’s lack of discretion in determining whether an enterprise agreement has been ‘genuinely agreed to’ is inconsistent with the discretion reposed in FWA in other matters, including in determining whether an applicant for a protected action ballot order has been ‘genuinely trying to reach an agreement’.

This article examines a number of decisions

In their review of the major tribunal decisions, the authors review the significant cases of the previous year. These decisions touch upon newly contested terrains of industrial conflict such as employee entitlements and the ongoing use of the provisions of the Workplace Relations Act to thwart outsourcing strategies. To that end, the authors first analyse the Federal Court decisions arising from the controversial Manusafe employee entitlements trust fund and the Greater Dandenong City Council’s decision to outsource home care services. Secondly, the authors proceed to provide a considered review of the High Court’s assessment of the elusive distinction between employee and independent contractors. Thirdly,the authors reflect upon an interesting decision of the Australian Industrial Relations Commission which specifically exposed the interconnectedness of the Air New Zealand and Ansett Group of companies. The authors comment that the decisions reviewed are symptomatic of the evolving nature of industrial relations and industrial conflict.

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Despite relatively low levels of industrial disputation in 2007, the AIRC delivered some significant decisions in relation to the 'genuine operational reasons' exclusion to the unfair dismissal jurisdiction, and secret ballots for protected industrial action. However, arguably the most significant decisions in 2007 came from the Supreme Court of New South Wales and the Federal Court of Australia. These decisions illustrate that the common law contract of employment provides (increasingly) robust protections to employees from workplace injustices. This article examines recent developments in relation to the implied duties of good faith and of mutual trust and confidence. It also considers the prevalence of workplace policies in modern workplace relations and the circumstances in which workplace polices might give rise to enforceable contractual obligations and common law remedies for breach.Keywords: contract of employment; 'genuine operational reasons' for dismissal; implied duties of good faith and mutual trust and confidence; incorporation by reference; secret ballots for protected industrial action and genuinely trying to reach agreement Journal of Industrial Relations