Should Employer's really be fearing being 'roped in' to a multi-employer Enterprise Agreement in the new system?

It depends on who you ask.

Most Employer groups have cautioned that the Secure Jobs Act's single-interest bargaining provisions will give unions much greater power and put all employers at risk of being captured by the regime.  The loss of control of specific terms for an enterprise agreement is a legitimate concern because it has the capacity to reduce an employer’s competitive advantages.

However, highly respected Adelaide University Professor of Law Andrew Stewart predicted that the FWC, if it takes a strict approach, will approve very few bids to negotiate multi-employer deals in the new single-interest bargaining stream.

Unions have welcomed the changes but have been conspicuously less vocal regarding the particular strategies they will utilise to fully capitalise on this legislative change.  Unions could increase the efficiency of enterprise bargaining by focusing on the multi-employer deal as it will involve less organisers, presumably less time, and then inevitably less cost.  That makes business sense to them.

We agree with the Employer group’s assessment.  Whilst Professor Stewart’s opinion is based on a strict ‘black letter’ law approach we consider that it is certainly open for FWC to adopt a broader interpretation particularly as terms like “common interest” and “reasonably comparable operations” have a lot of ‘latitude’ in them and there is both a public interest test and a reverse onus on employers with more than 50 employees to contend with. 

Action

We recommend creating a first-line defence to being roped into multi enterprise bargaining by maintaining ‘in term’ enterprise agreements by:

1. engaging with your workforce now to reinforce enterprise specific outcomes and providing a legitimate and compelling alternative to a "one size fits all" approach;

2. commencing bargaining for a replacement or new enterprise agreement sooner rather than later;

3. ‘cutting early deals’ now where negotiations are close to finalising to avoiding getting caught in the new system after 6 June 2023; and

4. (if you don’t achieve an enterprise agreement prior to the 6 June 2023 cut off) keep an eye out for any early decisions of FWC and reassess risks.

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