Multi-enterprise bargaining

What's changing?

From 6 June, unions can apply to the Fair Work Commission (FWC) for authorisations to bind employers into bargaining for multi-enterprise agreements. Depending on the bargaining stream (ie. whether it's under the "supported" or "single-interest" stream), the FWC will, in deciding whether to grant these authorisations, consider criteria including:

• prevailing pay and conditions in the relevant industry or sector, ie. are employees paid at, or close to, award rates of pay? ("supported" stream)
• whether the employers have clearly identifiable common interests (both streams)
• reasonably comparable operations and business activities between the employers ("single interest" stream)
• will bargaining be manageable? ("supported" stream).

Also, under the "supported" bargaining stream, there will be an ability for the relevant Federal Minister to declare that a particular industry, occupation or sector will fall under this stream (in which case FWC criteria referred to above won't need to be satisfied).

However, there are important potential "carve outs" for employers to not be roped into multi-enterprise bargaining - including, for example, where they already have an in-term enterprise agreement in place for their relevant employees, or, provided certain criteria are met, they are already in bargaining for an enterprise agreement.

Also importantly, under these changes, employers could be "roped into" multi-enterprise agreements by the FWC, after they have already been made by unions and other employers. In this scenario, similar FWC considerations will generally apply as those referred to above (eg. does the new employer at risk of being "roped into" an existing multi-enterprise agreement, have clearly identifiable common interests with the employers who are already on this agreement?).

Background

6 June 2023 will see significant changes to the multi-enterprise bargaining framework, designed to lower barriers to entry to the enterprise bargaining system. This includes the ability for multiple employers with a "common interest" to be "roped into" bargaining for, and coverage under, an agreement.

Under these changes, two multi-enterprise bargaining streams will be established ─ a "supported" bargaining stream (targeted at low-paid industries such as aged care, childcare, and disability care), and a "single-interest" bargaining stream (which is broader and not necessarily targeted at low-paid industries).

Actions

Before and after 6 June

Review your workplace relations/industrial instrument frameworks as a priority, particularly if you may be at risk of being "roped into" multi-employer arrangements (under either the "supported" or "single-interest" bargaining stream).

Employers should assess the following:

• Do you have current in-term enterprise agreements in place, or are you operating under expired agreements?
• Are you about to commence, or are you in the process of, bargaining for new agreements? Do you have agreement to bargain with relevant union/s?
• Does your sector or industry have the new supported bargaining stream as its focus?
• Do you share "common interests" with competitors in your market (eg. geography, regulatory framework, nature of operations, employee terms and conditions)?
• Are the operations and activities of your business reasonably comparable to others in your market? If not, will you be able to satisfy the FWC that this is the case, to avoid multi-enterprise arrangements?
• Are you able to rely on any of the exclusions to the new multi-enterprise arrangements?
• Are your employees (and their representatives) strong supporters of the new multi-enterprise arrangements?
• Is there a relevant Ministerial declaration in place?
• Is it better for you to be "at the table" (ie. part of multi-enterprise bargaining) or "on the menu" (ie. later roped into a multi-enterprise agreement that's already been made)?

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