UPDATE on Multi-employer bargaining

The controversial part of the new legislation traverses areas of existing provisions about multi-employer agreements and introduces some new elements. The component parts are variously referred to as “single interest bargaining” or “supported bargaining” or “cooperative bargaining”. What is common to all of these is the enhanced capacity for agreements to be made that will apply to multiple employers, more akin to an award than the single enterprise agreement most employers that bargain are used to. And greater involvement of the FWC. Below is a summary of the different streams and related matters.

Single Interest Bargaining

To get one of these started, the FWC must authorise it, and that requires majority support and also, that some of the employees are represented by a union. Crucially, the affected employers must have “clearly identifiable common interests” (e.g. geographical location, the nature of the enterprises and the terms and conditions in place) and reasonably comparable operations and activities. The FWC authorisation cannot be contrary to the public interest.

Employers with less than 20 employees can’t be involved in these. Further, an employer with less than 50 but 20 or more employees is entitled to oppose involvement and it is up to the union to prove that the criteria like ‘clearly identifiable common interest’ test would be met in their case (onus to positively prove common interest removed from the employer).

After one of these agreements has been made by the ‘first’ group of employers, other employers could be roped-in to agreements where a majority of employees support that, and the “common interest” element exists as above. Employers will be able to leave the multi-enterprise agreement where this is approved by a majority vote of employees and the employee organisation consents.

If an employer can demonstrate it is bargaining for a new agreement, has a history of bargaining and less than nine months has passed since the expiry of the last agreement, that employer may be excluded from one of these authorisations or a roping-in application.

Supported Bargaining

Supported Bargaining refers to a stream whereby the FWC gets involved to facilitate bargaining between employee organisations and multiple employers. Under this stream to get matters started, the FWC can make a “supported bargaining authorisation”. Such an authorisation must be made where the FWC considers it appropriate, having regard to prevailing employment conditions, whether there’s a common interest and also, given the numbers of parties involved, if the process would be manageable; and any other matter it considers appropriate.

Like the single interest stream, commonality is determined having regard to issues like location, nature of the enterprises, or it could be government funding. Some of the employees at least need to be represented by a union in these cases. An authorisations can’t be made in relation to an employee who is covered by a single enterprise agreement (unless the agreement was made with the intention of avoiding this stream).

If supported bargaining does not result in agreement, there is recourse to arbitration through intractable bargaining declarations and determinations. Protected industrial action is also available.

Majority Support Determinations will not be required to initiate supported bargaining. Employers can be “roped in” to supported bargaining agreements on application to the FWC, or by consent where the employees agree and without consent if the employees agree and the FWC is satisfied it is appropriate to do so.

Employers will be able to exit coverage where this is approved by a majority vote of employees and the union consents too. If a supported bargaining agreement comes into operation, it replaces a single enterprise agreement.

Co-operative Bargaining

This stream, while multi-enterprise in character, operates without the authorisations needed in the other two streams. Consequently, protected industrial action is unavailable, and the FWC can’t be involved in the same way as the other streams unless all bargaining representatives agree; and there is no access to “intractable bargaining” arbitration.

In order for a co-operative agreement to be approved by FWC, at least some of the employees need to be represented by a union. Like the other streams, an employer can be roped-in to one of these agreements, but only by their consent and that of an employee majority.

Bargaining Disputes

There will be wider scope for FWC involvement in bargaining disputes with it able to order parties to attend the FWC, order production of documents and schedule meetings.

A new action available to the FWC is to make an intractable bargaining declaration. If the FWC makes such a declaration, it has the power to arbitrate the unresolved issues. Before doing so the FWC will be required to have exercised assistance powers under the Act by way of conciliation. But if the FWC determines that there is no reasonable prospect of agreement being reached, and it is reasonable in all the circumstances to make the declaration, then it can do so.

Another caveat is that a minimum bargaining period must have elapsed before the declaration can made. That period is nine months after either the nominal expiry date or the day bargaining starts, whichever is the later. These declarations can only apply where the proposed multi-enterprise agreement will be made under the auspices of either a supported bargaining authorisation or single interest employer authorisation.

Once FWC makes a declaration, protected industrial action is unavailable and the parties have a limited time to resolve their differences. The FWC in these situations determines a post-declaration negotiating period and if at the end of that no resolution is reached, then FWC must move quickly to arbitrate. The subsequent ‘agreement’ will be known as a (Intractable Bargaining) Workplace Determination.

 

By Ross Clarke and Shane Coyne