New supported bargaining agreements

From 6 June, the supported bargaining stream will replace the current low-paid bargaining arrangements.

A supported bargaining agreement is a type of multi-enterprise agreement. Supported bargaining agreements can only be made where a supported bargaining authorisation is in operation immediately before the agreement is made. A supported bargaining authorisation cannot be made in relation to a proposed greenfield agreement.

The supported bargaining stream is designed to assist and encourage employers and their employees who may, for various reasons, find it difficult to bargain at a single-enterprise level.

The effect of a supported bargaining authorisation is that the employers specified in it are subject to certain rules in relation to the agreement that would not otherwise apply (such as in relation to bargaining orders).

Once a supported bargaining authorisation is made, the Commission has powers to assist parties during bargaining to reach an enterprise agreement that meets their needs.  

Applying for a supported bargaining authorisation

To apply for a supported bargaining authorisation you must be:

• a bargaining representative for a proposed multi-enterprise agreement, or
• an employee organisation (union) entitled to represent the industrial interests of an employee in relation to work to be performed under the agreement.

Making a supported bargaining authorisation

The Commission must make a supported bargaining authorisation if an application for the authorisation has been made and the Commission is satisfied that it is appropriate for the employers and employees that will be covered by the agreement to bargain together having regard to the factors described below. The Commission may decide to make an authorisation with some, or all of the employers or employees named in the application.

The Commission will take into account:

• pay and conditions — what the prevailing pay and conditions in the relevant industry or sector are, including whether low rates of pay are prevalent
• common interests — whether the employers have clearly identifiable common interests, such as:
  • a geographical location
  • the nature of the enterprises and the existing terms and conditions of employment in those enterprises
  • being substantially funded by government (state, territory or federal)
• bargaining representation — whether the likely number of bargaining representatives is manageable for a collective bargaining process, and
• other matters — any other matters the Commission considers appropriate. 

The Commission must also be satisfied that at least some of the employees are represented by a registered employee organisation (union).

The Commission must also make a supported bargaining authorisation if an application for the authorisation has been made and the employees specified in the application are in an industry, occupation or sector declared by the Minister for Employment and Workplace Relations for this purpose. 

A supported bargaining authorisation must specify the employers and employees that will be covered by the multi-enterprise agreement and any other prescribed matters. The authorisation comes into operation on the day it is made.

Once an employer is included in a supported bargaining authorisation, they can only make a supported bargaining agreement, and cannot bargain for any other kind of agreement, with the employees specified in the authorisation.

Restrictions on making an authorisation

The Commission cannot make a supported bargaining authorisation:

• if the proposed multi-enterprise agreement would cover employees in relation to general building and construction work, or
• specifying an employee who is covered by a single-enterprise agreement that has not passed its nominal expiry date – unless the Commission is satisfied that the main intention of the employer in making the agreement was to avoid being specified in the authorisation. 

Adding or removing employers from a supported bargaining authorisation

Parties can apply to the Commission to vary a supported bargaining authorisation to remove or add employers. 

Removing an employer from a supported bargaining authorisation

An employer can apply to the Commission to vary a supported bargaining authorisation to remove their name.  

The Commission must vary the authorisation to remove the employer’s name if it is satisfied that a change in the employer’s circumstances means it is no longer appropriate for the employed to be specified in the supported bargaining authorisation.

If an employer is removed from an authorisation, they will no longer be able to be included in the proposed supported bargaining agreement.

Adding an employer to a supported bargaining authorisation

To apply to vary a supported bargaining authorisation to add the name of an employer, you must be:

• the employer
• a bargaining representative of an employee who will be covered by the proposed agreement to which the authorisation relates, or
• an employee organisation (union) that is entitled to represent the industrial interests of an employee in relation to work to be performed under that agreement.

If an application is made, the Commission must add the employer’s name to the authorisation if it is satisfied that it is in the public interest to do so, taking into account:

• if the employees are in an industry, occupation or sector that has been declared by the Minister—the declaration, and any other appropriate matters
• if the employees are not in a declared industry, occupation or sector—whether it is appropriate for the employers and employees to bargain together, having regard to the same matters the Commission must consider in deciding whether or not to make a supported bargaining authorisation:
  • pay and conditions
  • common interests
  • bargaining representation, and
  • any other appropriate matters.

However, the Commission cannot vary the authorisation if:

• the proposed multi-enterprise agreement to which the authorisation relates would cover employees in relation to general building and construction work, or
• the proposed employees are covered by a single-enterprise agreement that has not passed its nominal expiry date (and was not made by the employer to avoid the authorisation).

• Where an employer and all of their employees are covered by a supported bargaining agreement or a workplace determination that is in operation, it will be taken that the Commission has varied a supported bargaining authorisation to remove the employer.