Overview
Have you heard of Multi-Employer Bargaining?
Multi-employer bargaining may arise where an employer is subject to a ‘single interest employer authorisation’ or SIEA. A trade union for example can apply to the Fair Work Commission for an SIEA. An SIEA can then trigger an enterprise bargaining agreement that will cover two or more employers.
Key Elements
From an HR perspective, there are a handful of key elements that are useful to be aware of as follows:
- It is necessary for a bargaining representative (ie: employee association/trade union) to ensure that the employer employed at least 20 employees at the time the application was made. This is what is termed a ‘threshold’ requirement.
- It is necessary for a bargaining representative to ensure that a majority of employees want to bargain for an agreement.
- Employers must have ‘clearly identifiable common interests’ (this is known as the common interest test).
- If the common interest test is met, the Fair Work Commission must be satisfied that the operations and business activities of the employer(s) to be covered by the agreement are reasonably comparable with those of other employers that will be covered by the agreement. Moreover, where an employer employed 50 or more staff at the time that an SIEA application was made, it is presumed that these requirements are met unless the contrary is established. This is known as a ‘rebuttable presumption’.
An SIEA cannot be made in relation to employers engaged in general building and construction work. Additional requirements also apply in relation to franchise type arrangements.
Case Learnings
A recent full bench case ([2024] FWCFB 253) provides valuable intelligence to assist in understanding how the Fair Work Commission has applied key elements of multi-employer bargaining.
This is a BIG case – so we have itemised some of the major learnings for you in an article which you can read here.
Full Case Reference: Association of Professional Engineers, Scientists and Managers v Great Southern Energy Pty Ltd T/A Delta Coal, Whitehaven Coal Mining, Peabody Energy Australia Coal, Ulan Coal Mines Ltd (Employers).
What about Supported Bargaining Agreements (SBAs)?
You may have also heard of the supported bargaining regime. A Supported Bargaining Agreement (SBA) is a type of multi enterprise agreement designed to assist and encourage employers and their employees who may find it difficult to bargain at the single enterprise level.
Of particular relevance for this type of agreement are the prevailing rates of pay and whether or not such rates are considered ‘low rates of pay’.
It has been established that low rates of pay prevail in an industry where staff are paid at or close to the award rates of pay.
The ‘common interest test’ also applies in relation to an application made for a supported bargaining authorisation.
Factors such as location, terms and conditions (ie: the Award that applies) and the ‘nature of the enterprises’ to which an agreement relate are relevant as is whether or not the employer(s) receive any government funding.
Immediate HR Solutions
If you are concerned about multi-employer bargaining, then you may be relieved to learn there are a number of HR interventions that you and your business can consider right now.
We can help you with these and assist you in implementing them. We encourage you to contact us today for guidance and advice before you proceed with any multi-employer related actions.