Last year, the Fair Work Commission (the “FWC”) handed down its “test case” on Single Interest Employer Authorisations (“SIEAs”). You can read our article about that case here. That decision compelled three black coal mine operators (the “Employers”) to engage together in multi-enterprise bargaining.  

Background 

As a quick refresher, a SIEA, if made by the FWC, requires a group of employers to bargain for a multi-enterprise agreement. However, a SIEA will only be made by the FWC in limited circumstances where certain criteria are met, including that the various employers have clearly identifiable common interests and comparable operations or business activities.   

The Employers challenged the decision of the FWC arguing that, amongst other things, the FWC had not properly weighed the various considerations. The Federal Court of Australia (“FCA”) recently handed down its decision, dismissing the Employers’ applications to quash that decision and, in doing so, provided some further insight into how the courts will approach SIEAs.  

Further guidance from the Court 

In our article last year, we set out the considerations for when there are clearly identifiable common interests and reasonably comparable operations and business activities. The FCA has shed some further light on these. In relation to clearly identifiable common interests, the FCA commented that this is not a mathematical analysis but rather, when determining whether to grant a SIEA, the FWC must “take a broad, evaluative approach and undertake a qualitive assessment”.  

The FCA also said, in relation to assessing comparable operations and business activities, a proper construction of these issues would amount to factors that are “generally equivalent, alike or similar, such that joint bargaining will be facilitated”. 

Takeaways for employers 

The FCA’s decision to uphold the FWC’s earlier decision confirms the powers the FWC has when granting SIEAs. Both cases demonstrate that employers can be forced to bargain with other employers, even competitors, if they have particular similarities and it is in the interests of employees and the public.