Many employers are concerned about the multi-employer bargaining provisions of the Secure Jobs, Better Pay legislation. Of particular concern is the ability of unions to apply to make employers party to existing multi-enterprise bargaining agreements.
Employers who are concerned about such applications and who have award based employees should consider implementing their own enterprise agreement or, alternatively, renewing their existing enterprise agreement that has past its nominal expiry date.
The sanctity of an enterprise agreement.
A fundamental provision in the Fair Work Act is section 58(1), which provides only one enterprise agreement can apply to an employee at a particular time. This is reinforced by section 58(2), which provides (generally) that, if an enterprise agreement applies to an employee and another enterprise agreement that covers the employee comes into operation, and the earlier agreement has not passed its nominal expiry date, the latter agreement cannot apply to the employee until the earlier agreement has passed its nominal expiry date.
Multi-employer bargaining provisions
There are numerous provisions in the Secure Jobs, Better Pay legislation which reflect this provision:
- New section 216BA will provide if an application is made to the Commission to vary a supported bargaining agreement to add an employer, the Commission must not make the variation if the affected employees are covered by an enterprise agreement that has not passed its nominal expiry date.
- New section 243A will provide the Commission must not make a supported bargaining authorisation (the gateway to supported bargaining), specifying an employee who was covered by a single enterprise agreement that has not passed its nominal expiry date. However, this will not apply if the Commission is satisfied the employer's main intention in making the agreement is to avoid being specified in a supported bargaining authorisation.
- New section 216DC will provide an application by a union that is covered by a single interest employer agreement to add an employer to the agreement, cannot be approved if the employer and affected employees are covered by another enterprise agreement that has not passed its nominal expiry date at the time the Commission will approve the variation.
- Under proposed new 249(1), if a union applies to the Commission for a single employer authorisation, the Commission cannot make the authorisation if the employer and employees of the employer are covered by an enterprise agreement that has not passed its nominal expiry date at the time the Commission will make the authorisation.
- Pursuant to new section 251, if a union applies to the Commission for the variation of a single interest employer authorisation to add an employer, the Commission cannot make the order if employer and its employees that will be covered by the agreement are covered by an enterprise agreement that has not passed its nominal expiry date at the time the Commission will make a variation.
Employers who do not have an enterprise agreement (or whose enterprise agreement has expired) and who are perturbed about multi-employer bargaining, should consider the benefits of making their own enterprise agreement. Making or renewing an enterprise agreement takes time, so employers should act quickly, given the multi-employer bargaining provisions will become law on 6 June.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.