From 26 August 2024, road transport businesses and digital labour platform ('gig economy') operators will be able to make consent-based collective agreements with registered employee organisations.
Once made and registered by the Fair Work Commission, the agreements are binding and must not be contravened, pursuant to the Fair Work Act 2009 (Cth) (the Act). A person who contravenes a term of a collective agreement is liable to a penalty under the Act.
Who does this affect?
Road transport businesses are businesses operating in road transport sectors covered by modern awards, including road transport and distribution, long distance operations, waste management, cash in transit and passenger vehicle transportation.
'Regulated road transport contractors'
A worker is a regulated road transport contractor if the person performs work under services contract, and that person:
- personally performs all or a significant majority of the work under the contract;
- does not perform the work as an employee
- works in the road transport sectors covered by modern awards, including road transport and distribution, long distance operations, waste management, cash in transit and passenger vehicle transportation; and
- is not an 'employee-like worker'
A worker is an 'employee-like worker' if the person performs digital platform work under a services contract and is not an employee and if they satisfy at least two of the following conditions:
- the person has low bargaining power;
- the person is paid at or below the rate of an employee performing comparable work;
- the person has a low degree of authority over the performance of the work;
- other conditions prescribed by the regulations.
Contents of the collective agreements
A collective agreement may be made about how workers perform work under services contracts to which the road transport business is a party, and how the collective agreement will operate. They must be focussed on the terms and conditions of engagement. Terms about other matters (e.g. commercial terms) have no effect.
How the collective agreements are made
A regulated business or a union that is entitled to represent the industrial interests of regulated workers can start the process by providing a notice of consultation to the other entity and to the Fair Work Commission (FWC). The FWC will publish the notice to its website. Either party must then make reasonable efforts to give a notice, containing specified information, to the regulated workers to be covered by the collective agreement, with the consent of the other party.
A negotiating party may ask the other party to sign the collective agreement. The collective agreement is made when both of the negotiating parties for the agreement sign the agreement. If they do, one of them submits the application to the FWC. A FWC member will review the application. The member must be satisfied the collective agreement meets the requirements set out in the Act. The requirements are:
- whether it has been made fairly by consent for employee-like workers and regulated road transport contractors;
- whether it provides fair terms and conditions for regulated workers, promoting the right to just and favourable conditions of work.
Dispute resolution
If the negotiating entities for a proposed collective agreement are unable to resolve a dispute about the making of the agreement, either negotiating entity may apply to the FWC for the FWC to deal with the dispute. The FWC must deal with the dispute (other than by arbitration – meaning it can conciliate, mediate, make a recommendation or express an opinion).
Operation of the collective agreement
Once registered by the FWC, a collective agreement will continue to operate until the termination date specified in the agreement, unless terminated earlier. Unlike enterprise agreements, collective agreements do not continue beyond their specified expiry date.
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.
