The fierce public and political debate about the Albanese Government’s new Secure Jobs, Better Pay Bill (2022) ended last week when the Government secured the crucial Upper House vote of ACT Senator David Pocock. The Bill was subsequently approved by the Australian Senate and formally entered into law on 6 December 2022.
ACAPMA is supportive of the changes that allow employers to voluntarily band together to negotiate a multi-employer agreement. The changes to this form of multi-employer bargaining – referred to as “Cooperative Bargaining” – improve employer access to this bargaining mechanism and, together with changes to the Better Off Overall Test (or BOOT) for approval of enterprise agreements, will better enable businesses in our industry to overcome the significant limitations of the current Modern Award.
Cooperative Bargaining is likely to be of most use to businesses that operate within a given fuel network by allowing the harmonisation of workplace arrangements within a given network, to improve the ability of these businesses to attract staff in the future.
The changes to this voluntary form of multi-employer bargaining come into effect on 6 June 2023 and a short summary of the new arrangements can be found at Cooperative Bargaining.
ACAPMA maintains some concerns, however, about the real-world operation of the new compulsory forms of multi-employer bargaining mechanisms introduced under the new laws. These changes have the capacity to compel businesses to engage in multi-employer bargaining with their competitors, thereby posing a significant threat to the future nature of competition within the deeply competitive Australian fuel market. Thankfully, a series of last-minute changes to the draft laws made prior to the Senate vote on the Bill go some way towards mitigating these competition destruction risks.
“ACAPMA received a good hearing from Federal Employment Minister, the Hon. Tony Burke MP (and his office) in respect of our concerns about the new laws. Many of these concerns appear to have been addressed by the last-minute changes made to the draft laws before they were passed by the Australian Parliament on 5 December 2022,” said ACAPMA CEO Mark McKenzie.
The new laws introduced two new compulsory multi-employer bargaining mechanisms – that is, ‘Supported Bargaining’ and ‘Single Interest Bargaining’. The mechanism of most relevant to Australian fuel businesses is the Single Interest Bargaining mechanism, with Supported Bargaining intended for industries with a predominance of low income, female dominated workers such as child care and aged care (albeit that it is worth noting that the legislation does not actually provide a legal definition of what constitutes the latter group of industries).
Under Single Interest Bargaining, a Union can make an application to the Fair Work Commission (FWC) to compel two or more ‘like’ businesses to engage in a multi-employer agreement with the Union. If approved by the FWC, employers and unions that are signatory to the initial authorisation can apply to the Commission to add (or remove) the other employers, subject to meeting specified requirements.
In considering an application for Single Interest Bargaining, the FWC must approve the Union’s application if it can be shown that:
- The businesses that have been named in the application agree to participate; or
- The majority of the employees in each of the businesses named support the application.
Businesses with less than 20 employees are automatically excluded from being required to participate in Single Interest Bargaining. In addition, the onus has been placed on Unions to demonstrate why businesses with 21 to 50 employees should be compelled to participate in Single Interest Bargaining (the onus in the original draft laws put the onus on these small businesses to prove why they should be excluded).
In cases where larger businesses and their employees are covered by an active enterprise agreement, or an agreement has been reached between the business and the relevant union to commence negotiations on a replacement agreement, businesses will be excused from participating in Single Interest Bargaining.
The new laws also give the FWC discretion to refuse an application to include one or more employers from a Single Interest Bargaining application where:
- Good faith bargaining is already occurring
- There is a history of bargaining between the parties
- Less than nine months has elapsed since the nominal expiry date of the previous agreement.
“Put simply, individual businesses can avoid being roped into a multi-employer agreement with their competitors by ensuring (a) that they have a single enterprise bargaining in place, or (b) that the business enters good faith negotiations with the union on a new agreement within nine months of the expiry of an old agreement”, said Mark.
Businesses most exposed to being forced into multi-employer agreements are those operating ‘Zombie Agreements’ given that the new laws formally terminated all of these agreements on 6 December 2022 (see Sunsetting of zombie agreements).
A summary of the new Single Interest Bargaining mechanism, which also comes into effect on 6 June 2023, can be found at Single Interest Bargaining.
“The real-world effectiveness of these competition safeguards in preventing adverse competition outcomes will ultimately become clear once we see the laws in operation – and this risk will be a significant watch-point for ACAPMA in the future,” said Mark.
“Nonetheless, and contrary to some claims that have been made in the press of late, the sky is ‘not falling in’ on Industrial Relations. Businesses do, however, need to be aware of the changes and take reasonable steps to update expired agreements”.
While much of the public discussion about the new Albanese reforms has focused on the multi-employer bargaining and expanded worker strike provisions, the laws will also bring a number of other changes into effect. These changes, which will be progressively introduced over the next 12 months, are usefully summarized in a document recently reduced by the President of the Fair Work Commission (see: https://www.fwc.gov.au/about-us/news-and-media/news/information-about-secure-jobs-better-pay-act-2022-changes).
The passing of the new laws on 5 December 2022 does not, however, signal the end of the Albanese Government’s agenda for IR Reform. The Government issued an Employment White Paper at the National Employment Summit held in Canberra in September with stakeholder submissions to this paper closing only recently. Consideration of the issues raised in this White Paper, and the stakeholder submissions made to date, is expected to result in a series of additional IR reforms to be introduced towards the end of 2023. These include possible further changes to the operation of casual employment.
“Given the critical nature of casual employment to the nation’s fuel retail businesses, ACAPMA will seek to engage the Government and the Unions on the need for any future changes in casual employment to take full account of the nature of the employment patterns that exist within our industry,” said Mark.
“ACAPMA also continues to press for the criminalization of deliberate and systemic wage underpayment given that this practice gives an unfair advantage to unscrupulous businesses over the vast majority that are doing the right thing.
“It therefore goes without saying that Industrial Relations will continue to be a major focus of ACAPMA’s advocacy efforts in 2023”, concluded Mark.
ACAPMA
Source: https://acapmag.com.au/2022/12/ir-reforms-now-and-next-year/.
