Bargaining has been taking longer under the Fair Work Act, but if the economy becomes more robust, negotiations might do the same, says Freehills partner Chris Gardner.

The new legislation might be partially responsible for slower resolutions, "but I don't think that is the total answer", Gardner says.

"In fact, I think it's more a case of the economic cycle we're in and the bargaining dynamics.

"We've got employers who are reluctant to make the sort of concessions that they might have been making in the good times, but conversely, while claims are being made, we've got employees reluctant to take protected industrial action [and] bring about the ultimate pressure on an employer," he says.

"That's not to say it's not happening - we see a lot of it - but it's happening less so, and where it does happen, the action tends to be at the margins. So we're not seeing wholesale strikes as much as we might have seen in the past."

As for what will happen in the next year or so, "I think that will be a function largely of the economy," Gardner says. "If you take the view that the economy's going to pick up, then there is the potential for a more robust bargaining environment.

"That said, at least during the election phase, things will go quiet - as they inevitably go quiet - as union resources are utilised elsewhere," he adds.

New demand for productivity off-sets

Under the Fair Work Act, "Enterprise agreements can ensure that increases in pay and entitlements are linked to productivity increases of the enterprise".

At present, there is little evidence of employers bargaining on this basis, Gardner says. But looking forward, he expects "a greater emphasis on the need for productivity outcomes".

"I think in manufacturing in particular, but not solely manufacturing... some employers are going to start to demand that there be some productivity offsets to fund increases."

"Most employers are, on an ongoing basis, looking at how they can improve productive capacity. And they'll seek to do this outside the boundaries of the enterprise agreement," he explains.

"There is certainly room for employers to demand that, to some extent, the additional cost of any agreement is funded through productivity offsets.

"It could be a way of working (it could be practices, it could be the way shifts are arranged), it could be better controls on leave and leave management - it could be a range of things," he says.

"It's about saying, 'what is the per-unit cost of production and how can we keep that steady in circumstances where we're paying more per hour for a unit of labour?'"