FWC issues first contested Single Interest Employer Authorisation - What does the future hold when forcing friendship at the bargaining table?

Understanding the Fair Work Commission's SIEA Decision

The Fair Work Commission (FWC) has recently handed down a landmark decision, the first significant contested Single Interest Employer Authorisation (SIEA) under section 248 of the Fair Work Act 2009 (Cth). This decision is pivotal as it initiates a process of multi-employer bargaining under the FW Act, offering a practical illustration of the "Same Job Same Pay" reforms. The Full Bench's decision marks a strategic victory for the Australian Professional Engineers, Scientists and Managers Association (APESMA), aiming to expand enterprise agreement coverage within the coal mining sector to include senior staff traditionally engaged through individual contracts.

The Role of APESMA in Shaping Enterprise Agreements

APESMA's success in this case underscores its strategy to extend enterprise agreements to senior employees in the coal mining industry. Historically, these employees have been bound by individual contracts. This shift towards collective agreements is significant, reflecting broader curiosity about how multi-employer bargaining will transform enterprise bargaining practices across various sectors. The FWC's decision compels three major employers—Peabody, Whitehaven, and Ulan—to engage in bargaining for an enterprise agreement covering a senior cohort of their employees, setting a precedent for future negotiations.

Key Criteria for SIEA Authorisation: A Detailed Look

The FWC's authorization of the SIEA hinged on several statutory preconditions under the FW Act. Key among these are:

1. Majority Support: APESMA demonstrated that a majority of employees at each respondent employer supported the bargaining initiative. This was evidenced by a vote where 143 out of 179 eligible employees endorsed the bargaining, despite challenges from the employers regarding the legitimacy of APESMA's communications.

2. Common Interests: The FWC assessed that the respondent employers had clearly identifiable common interests. This evaluation considered operational, commercial, and employment-related features, concluding that the employers shared similar characteristics influencing their bargaining approach.

3. Public Interest: The FWC determined that authorizing the SIEA was not contrary to the public interest. The employers failed to provide substantial evidence to rebut this presumption, focusing instead on their own interests.

Challenges and Opportunities for Respondent Employers

The respondent employers face several challenges and opportunities following the FWC's decision. They are required to engage in good faith bargaining, adhering to the statutory requirements under the FW Act. This includes the potential for protected industrial action and other interventions. The employers must navigate this new terrain, balancing their individual commercial strategies with the collective bargaining process. The dynamics at the bargaining table will be complex, given that the employers may have competing interests and different operational goals.

Potential Industry Shifts Following the SIEA Decision

The FWC's decision raises intriguing questions about the broader impact on other industries. Sectors with a strong presence of union membership, a lack of existing enterprise agreements, and employer commonality may see similar union strategies. Industries such as aged care, health, and NDIS scheme providers, characterized by regulated environments and shared employment strategies, could be next in line for multi-employer bargaining. Additionally, the FW Act's supported bargaining stream, aimed at addressing low pay and conditions, may offer an alternative path for sectors that do not meet the SIEA criteria.

Future Directions for Multi-Employer Bargaining Practices

The FWC's decision sets the stage for ongoing "forced engagement" in multi-employer bargaining. All parties must adhere to good faith bargaining requirements, including timely disclosure of relevant information. The SIEA will necessitate careful consideration of how these requirements will be managed among different employers at the same bargaining table. Future bargaining may see APESMA continuing to involve the FWC in the process, potentially through applications related to good faith bargaining or disputes.

Ultimately, the success of this bargaining process for APESMA may involve enduring prolonged and challenging negotiations, potentially leading to an arbitrated outcome by the FWC. This landmark decision may well pave the way for significant shifts in enterprise bargaining practices, influencing the landscape across various industries. As we move forward, the strategies and outcomes of these negotiations will be closely watched, providing valuable insights into the evolving dynamics of multi-employer bargaining under the Fair Work Act.

Author: Kate Peterson

Kate Peterson

Kate Peterson is a highly skilled workplace relations lawyer at McCullough Robertson, with experience across the full range of industrial and employment law matters. She has been practising as an employment lawyer for over 17 years and has a reputation for providing practical and commercial advice, based on sophisticated strategic judgment, exceptional technical skills and behavioural insight. She works across both public and private sectors, representing clients in industries including education, mining, building and construction, technology and the charitable/non-profit sector.