• 1 Australian Bureau of Statistic, Employee Earnings and Hours, Australia, 2021: https://www.abs.gov.a (...)

3However, the framework has lost its attractiveness over time. Fewer businesses have been making new agreements, and fewer workers are covered by them. The Australian Bureau of Statistics has revealed that the proportion of employees covered by agreements in Australia has decreased from 43 per cent in 2010 to 35 per cent in 20211.

• 2 Australian Government, Jobs and Skills Summit, 2023: https://treasury.gov.au/employment-whitepaper/ (...)
• 3 « Concessions offered to win passage of Secure Jobs Bill », Workplace Express, 22 November 2022.

4On 1-2 September 2022, the Australian Government convened its Jobs and Skills Summit, bringing together businesses, unions, civil society and state and territory governments to address several economic challenges2. One of the outcomes of the Summit was for the Government to improve enterprise bargaining in Australia. To meet this outcome, on 2 December 2022 the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (« SJBP Act ») was passed by the Parliament (after much debate in the Australian Senate)3.

• 4 Prime Minster of Australia, Delivering secure jobs and better pay, Media release, 2 December 2022.

5The SJBP Act introduces a range of reforms to the bargaining framework, as well as other matters. These include banning pay secrecy clauses in contracts and other legal documents, expanding access to flexible working arrangements, limiting the use of fixed term contracts, and abolishing the Australian Building and Construction Commission (an agency established by the previous government to regulate compliance with workplace laws in the building and construction industry)4.

• 5 For broader discussion on the enterprise bargaining framework, see Australian Government, Regulatio (...)
• 6 Fair Work Act, ss 172(2), (6).

8The single-enterprise bargaining under in the Fair Work Act has been the main way bargaining has occurred in Australia in recent years5. Generally, the single-enterprise bargaining stream allows a single employer to bargain with two or more employees for terms and conditions of employment that will only apply to their enterprise6.

• 7 Ibid., ss 236-39.

9Before the recent reforms, an employee bargaining representative (for example, a union) was required to seek a « majority support determination » from the Fair Work Commission (Australia’s independent workplace relations tribunal) (« FWC ») to require an employer to bargain for an agreement, if the employer had not agreed to bargain. This required the representative to show that a majority of employees wanted to bargain. This was usually done via a secret ballot, survey, written statements or a petition from workers7.

• 8 Ibid., s. 523.

11A bargaining representative can now give an employer a written request to bargain that the employer will be bound by, rather than needing to seek a ruling from the FWC, if8:

• 10 The provision commenced on 7 December 2022. See for example, A. Thompson, « Supermarket giant Coles (...)

12These amendments aim to improve access to single-enterprise agreements by reducing barriers to commencing bargaining. This is one of the few changes that has already commenced and is already being used to start bargaining in some sectors10.

• 11 See, eg, United Voice v The Australian Workers’ Union of Employees, Queensland [2011] FWAFB 2633.

13The SJBP Act has reformed the existing low-paid bargaining stream, which has been renamed the supported bargaining stream. The low-paid bargaining stream was originally intended to assist employees in low-paid industries to access enterprise bargaining. However, it was not often used due to the complex criteria placed on accessing the stream11.

• 12 SJBP Act, s. 611.

14As a result of the SJBP Act, the FWC can now make a supported bargaining authorisation, requiring multiple employers to bargain together, if the FWC is satisfied it is appropriate to do so, having regard to several factors12. One of those factors is whether low rates of pay prevail in the industry or sector.

• 13 Ibid.
• 14 Ibid.

16The SJBP Act also gives the Minister for Workplace Relations the power to declare an industry, occupation or sector eligible for the supported bargaining stream. The FWC must make a supported bargaining authorisation if an application is made regarding employees in an industry, occupation or sector specified in the Minister’s declaration13. However, an employer cannot be covered by a supported bargaining authorisation regarding employees covered by an agreement that has not nominally expired, unless the employer’s main intention in making the agreement was to avoid being specified in a supported bargaining authorisation14.

• 15 Ibid., s. 543.

17Within the supported bargaining stream, the FWC can help bargaining representatives, and make binding workplaces determinations to set terms and conditions of employment if the parties are unable to reach agreement15.

• 16 Ibid., s. 651A-B.

20To incentivise employers to voluntarily participate in this multi-employer bargaining stream, strike action is not available to employees, and bargaining disputes can only be escalated to the FWC for conciliation and arbitration with the consent of all parties. However, employers and employees performing certain types of building and construction work are also excluded from this stream16.

• 17 Fair Work Act, s 186(2)(d).

21For employers to be able to bargain under this stream, at least some employees involved must be represented by a registered employee organisation (for example, a union). Cooperative workplaces agreements must also be approved by a majority of employees employed by each employer, and the agreement must pass the Better Off Overall Test (« BOOT ») in the Fair Work Act17.

• 18 Commonwealth of Australia, Revised Explanatory Memorandum to the Fair Work Legislation Amendment (S (...)

22The BOOT ensures each employee covered by an enterprise agreement is better off overall when compared to the terms and conditions in their relevant modern award (an industrial instrument made under the Fair Work Act that provides a safety net of minimum employment conditions for employees in particular industries and sectors)18.

• 19 SJBP Act, s 597.

25The SJBP Act now allows employee organisations (such as unions), as well as employers, to apply to the FWC for a « single interest employer authorisation », which would order certain employers to bargain together19. The FWC may also now make an authorisation covering an employer without the employer’s consent. This means employers can be compelled to bargain with other employers for a single interest agreement under this stream, if they choose not to do so voluntarily under a different stream.

• 20 Ibid., s. 633A.

26However, the FWC can only make an authorisation if the employer has at least 20 employees20, and is not covered by an existing enterprise agreement that has not yet expired. As with the Cooperative Workplaces Bargaining Stream, employers and employees performing certain building and construction work are excluded.

• 21 Ibid., s. 634A.

27Before making an authorisation, the FWC must be satisfied that most employees employed by each employer wants to bargain, and that the employers have clearly identifiable common interests (like the test applying to the supported bargaining stream). A « public interest » test also applies, meaning the FWC must be satisfied that it would not be contrary to the public interest for certain employers to bargain together21.

• 22 Ibid., s. 579.
• 23 Ibid., ss 543-53.

29The reforms to this stream also impact the way strike action can be taken by employees. Strike action continues to be available in this stream, however parties must participate in conciliation before action is taken, and employees must give their employer at least 120 hours’ notice before the action occurs22. Parties who bargain in this stream also have access to a new « intractable bargaining » process in the FWC, which allows parties to seek conciliation and arbitration if bargaining is going for too long or the parties cannot agree23.

• 24 T. Burke, Ministers’ Media Centre, Secure Jobs, Better Pay bill amendments, Media release, 7 Novemb (...)

31Bargaining in Australia can often be complex, with different rules applying to different types of bargaining, and some parties needing more assistance than others. The amendments to the Fair Work Act introduced by the SJBP Act seek to address some of these difficulties and complexities, by making it easier for employers and employees to bargain. In the words of the Minister for Employment and Workplace Relations, these changes are intended to get wages in Australia moving24.

• 25 See, eg, I. Willox, « The government’s IR bill is based on an entirely flawed premise », Australian (...)
• 26 See F. Macdonald and L. Raynes, « Collective Bargaining and Wage Growth in Australia », Centre for (...)

32This is not to say, however, that the SJBP Act is without criticism. Some have suggested the Act will be « negative for Australia’s workplace relations », on the basis that « low wages growth » in Australia will not (they say) be solved by more bargaining25. However, with other reports released recently suggest the decline in enterprise bargaining in Australia over the last decade is responsible for slow wages growth26, it is clear the data around jobs and workplace relations is hotly contested.