Session 3 – Bargaining and enterprise agreements

The Fair Work Amendment (Secure Jobs, Better Pay) Act 2022 has introduced some of the most significant changes to the Fair Work Act 2009 (Cth), since its commencement on 1 January 2010.

The impact of the Act on bargaining and enterprise agreements was discussed in the third of our Spotlight Series presentation.

When it comes to multi-employer bargaining, employers need to know that:

• There are 3 different streams of multi-employer bargaining: the supported bargaining stream (formerly low-paid authorisation stream), the single-interest stream and the cooperative bargaining stream.
• The supported bargaining stream is designed to assist industries with historically low agreement coverage and one of the things the Commission will consider if a supported bargaining stream application is made is the prevailing pay and conditions in the industry – including whether low rates of pay prevail in the sector.
• Employers can only be “roped-in” to bargaining for a multi-employer agreement within the supported bargaining stream if the majority of employees who would be covered vote to be captured.
• The singe-interest bargaining stream is one of the more significant changes introduced by the Secure Jobs, Better Pay Act.
• The Commission needs to be satisfied of a number of things when it receives an application for a single-interest stream application, including:
  • employers proposed to bargain together have clearly identifiable 'common interests'; and
  • the operations and business activities of the employers are reasonably comparable.

• Employers with more than 50 employees will be presumed to have a common interests and be reasonably comparable with other employers in the single-interest stream – unless that presumption is rebutted by the employer.
• Employers can also be “roped-in” to an already-made multi-employer agreement if they have at least 20 employees and a majority of employees want to be covered by the agreement.

When it comes to complying with the pre-approval requirements, employers need to know that:

• The Commission will now take into account the Statement of Principles when determining whether an enterprise agreement has been genuinely agreed to by the employees.
• The Statement of Principles was recently published by the Fair Work Commission and removes the strict approach previously taken by the Commission.

When it comes to approved enterprise agreements, employers need to remember that if there is a material change to the work types they employ or the patterns of work they use, an employee or union may apply to the Commission for a reconsideration of whether the enterprise agreement passes the BOOT with respect to those new work types or patterns of work. If the agreement does not pass the BOOT it may be amended or undertakings may need to be given.

Employers who have zombie agreements (collective agreements entered before 1 January 2010) need to notify their employees covered by the agreement by 6 June 2023 that the agreement will automatically terminate on 7 December 2023 unless an application is made to extend the operation of the agreement.