A key theme that has emerged from the Government’s recent Jobs and Skills Summit is the prospect of widening access to multi-employer bargaining for enterprise agreements. While it is currently possible to have a multi-employer enterprise agreement under the Fair Work Act 2009 (Cth) (the “FW Act”), such agreements are rarely used in comparison to single-employer enterprise agreements.

Although there is currently no bill before Parliament and relatively few details on what the changes may look like, it is likely that any changes to multi-employer bargaining will have a significant impact on the industrial landscape.

Multi-employer bargaining under the FW Act

Multi-employer agreements are enterprise agreements that apply to more than one employer and their relevant employees, and in some cases one or more unions. These types of agreements typically occur within an industry that has multiple large employers or organisations performing the same types of work.

Multi-employer agreements do not include agreements that cover multiple “single interest employers”, which are still considered to be a single enterprise agreement. Single interest employers are employers who are either engaged in a joint-venture or common enterprise, are related bodies corporate, or specified as such under a single interest authorisation.

Employers cannot be compelled to engage in multi-employer bargaining with employees. Multi-employer bargaining can only occur if the relevant employers voluntarily agree to bargain together. This is different to a single-employer enterprise agreement, where it is possible for an employer to be required to bargain if the Fair Work Commission (“FWC”) makes a majority support determination (for which the FWC must be satisfied that a majority of employees want to bargain for an enterprise agreement).

What is changing?

The Government is yet to announce what the proposed changes to multi-employer bargaining are, but it is likely that we will see greater details announced following the recent conclusion of the Jobs and Skills Summit.

Recent documents that were produced by the Government and tabled to the Senate indicate that the changes to multi-employer bargaining will focus on low-paid workers, and that the changes are not intended to provide for sector-wide or industry-wide strikes. A memo produced by the Department of Employment and Workplace Relations indicates that the “loosening” of the rules around multi-employer bargaining is intended to increase the bargaining power available to low-paid workers and to enable more workers and businesses to access the benefits of enterprise bargaining.

While it remains to be seen what the specific changes will be, it is likely that the Government will be trying to remove or lessen the limitations on employees and employers to engage in enterprise bargaining under the FW Act. On that basis, it would not be surprising to see changes such as majority support determinations being used to enable multi-enterprise bargaining, or the creation of exceptions for particular industries with low-paid workers.

Key takeaways

• • The Government has made it clear that it intends to boost access to multi-employer bargaining, particularly in relation to low-paid workers.
  • Employers should review their business needs and industry environment to prepare for the possibility of increased agitation and a push for wider bargaining by unions or employees.
  • Employers who anticipate that they will be engaging in enterprise bargaining should ensure that they are properly prepared to engage and negotiate with their employees.

Kirryn West James, Director