Multi-Employer Bargaining (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.
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).
https://www.fwc.gov.au/documents/decisionssigned/pdf/2024fwcfb253.pdf
This is a BIG case – so we have itemised some of the major learnings for you below including paragraph identifiers. That way, you can go straight to the most relevant paragraph in the link above if you want to read in more detail.
Common Interest Test
– A ‘common interest’ should be recognisable. However, it is not enough to meet the common interest requirement by being either in the same industry, or region or covered by the same Modern Award [see para 347]
– A key focus is on shared factors applicable to enterprise bargaining negotiation activities such as the employers’ approach to employment terms and conditions, business competition and market challenges [see list from paras 348/389/391/392/393/395/401/408/412].
– A key question is: “Do the employers have joint, shared, related or like characteristics, qualities, undertakings or concerns that impact or influence them in relation to bargaining for an enterprise agreement” [p 76 paragraphs 345 + 346 in particular]. Significant weight is given to interests that are likely to impact or influence enterprise bargaining [see paras 469/479/482].
Operations and Business Activities
How the employer operates and What goods or services it produces or sells [see para 545] (‘the How and What’ question).
Reasonably Comparable
– ‘Reasonably’ is a term of ‘qualification’ that requires an assessment or judgement as to whether an employer’s operations and business activities are “sufficiently similar” [para 547]
– ‘Comparable’ refers to whether employer(s) operations and business activities are “sufficiently similar” [see para 546]
– Factors that have been assessed in this regard include:
- Principal business activity
- Where the employer operations
- Method of work
- Equipment used
- Size, structure and nature of workforce
Who the respondent employers supply to and sources of revenue
More Information
If you require further information on Multi-Employer Bargaining, then we encourage you to contact us.
You may also be relieved to know that there are already a number of HR interventions that could be relevant to your business right now and valuable to have in place. We can of course help you with those and assist you in implementing them.