The Fair Work Commission (FWC) has issued a ‘single interest employer authorisation’ (SIEA) in the first significant contested application determined under s248 of the Fair Work Act 2009 (Cth) (FW Act).[1] This outcome kicks off a process of multi-employer bargaining under the FW Act and sets the stage for a compelling case study of how this aspect of the ‘Same Job Same Pay’ reforms will operate in practice.
The decision of the Full Bench reflects a win for the relevant union, APESMA, in its strategy to extend enterprise agreement coverage in the coal mining industry into the more senior “staff” ranks of the workforce. These staff have typically been engaged on individual contracts.
While this outcome relates to the coal mining industry, there has been broader curiosity about how the multi-employer bargaining stream will change enterprise bargaining practice across the workforce. What does the future hold when ‘forcing friendship’ at the bargaining table? What industries might be next? This article explains the decision and some of the items to watch as enterprise bargaining adapts to this new legislative context.
Summary of the decision
In essence the SIEA requires three employers (Peabody, Whitehaven and Ulan (Respondent Employers)) to participate in bargaining for an enterprise agreement that would span a senior cohort of employees across those different workplaces. Subject to an enterprise agreement being achieved, the SIEA foreshadows this bargaining will continue for at least 12 months (or longer if extended under s252 of the FW Act).
The Respondent Employers are now required to bargain, although not necessarily to align or adopt a common approach. During this period, they must meet the good faith bargaining requirements and face the potential for protected industrial action and other interventions available under the FW Act.
The FW Act sets out a number of statutory preconditions for the SIEA, ranging from fairly straight forward matters through to qualitative judgments vested in the Fair Work Commission. For the purposes of this article, three of these matters are in focus:
- How did APESMA demonstrate a majority of employees employed by each of the Respondent Employers and who would be covered by the agreement wanted to bargain, satisfying s249(1B)(d) of the FW Act?
- On what basis was the FWC satisfied each of the Respondent Employers had “clearly identifiable common interests”, satisfying s249(3)(a) of the FW Act?
- On what basis was the FWC satisfied that it was not contrary to the public interest to make the authorisation, satisfying s249(3)(b) of the FW Act?
Majority support and related communications
In relation to the first point, APESMA was able to show that a vote of the relevant employees had endorsed bargaining. This vote was conducted without the awareness of the Respondent Employers, and resulted in 143 of 179 eligible votes voting yes.
The Respondent Employers challenged the surrounding communications from APESMA, on the basis this messaging included misinformation that invalidated the employees’ endorsement of the strategy, however APESMA was able to rebut these concerns.[2]
One particular challenge related to APESMA’s rhetoric to the effect that common law contracts were not enforceable or contribute to the risk of loss of entitlements under the applicable award, and job insecurity (hence the attractiveness of pursuing an enterprise agreement). After considering the operation and usage of ‘guarantees of annual earnings’ under the FW Act for the relevant staff employees, the FWC was content that these communications did not go too far. In particular, the Full Bench stated “it would be reasonably understood that what was being emphasised was the practical experience of APESMA rather than the strict legal position. Further, the desirability from the employees’ perspective of having more of their conditions contained in a collectively negotiated and more readily enforceable instrument that could not be changed without, amongst other safeguards, the approval of the Commission, is clear enough and consistent with the themes of the campaign”.[3]
Clearly identifiable common interests
The FWC needed to be satisfied the Respondent Employers had clearly identifiable common interests. This required detailed examination of a range of operational, commercial and employment-related features of the Respondent Employers. The FWC clarified:
- The assessment of clearly identifiable common interests needed to be at the company or entity level, including considering the interests and operations of the Respondent Employers beyond the specific mine site. This meant analysis would look at the specific mine (on the basis this was the enterprise in question) as well as broader factors.
- This requirement needed to be construed in the context of bargaining. Relevantly, the FWC concluded that “the test that we are required to consider is whether the Respondent Employers have joint, shared, related or like characteristics, qualities, undertakings or concerns that will impact or influence them in relation to bargaining for an enterprise agreement that will cover the SIEA employees”.[4] Commercial features that did not bear on bargaining were less relevant.
- This criterion required more than simply, for example, being in the same industry and covered by the same modern award.[5] When looking at these particular coal mining industry employers, the Full Bench identified a consistency in the approach to conditions of employment, in that they generally wanted to, in summary, negotiate individually, incentivise employees through annual bonuses, incentivise shift work and additional hours through compensation and implement rosters with particular features.[6] This was illustrative of common interest.
Not contrary to the public interest
This aspect of s249 was determined on the basis it is presumed than an authorisation is not contrary to the public interest, unless the contrary can be proved.[7] The FWC provided fairly short reasons to the effect that the Respondent Employers had not put forward any public effects (as opposed to matters related to their own interests as employers) that rebutted this conclusion.
Distinguishable position of Delta
A fourth employer, Delta Coal who operate the Chain Valley Colliery, was named in the application but not subject to the authorisation. This was based on key findings about Delta not having operations and business activities that were “reasonably comparable” to the other Respondent Employers as required by s249(1)(b)(vi). While the specifics of Delta’s position are not the focus of this article, these factors included that Delta operates as a supplier to a single power station customer (rather than competing in export markets) and does not generate profit or commercial gain. The FWC also weighed operational and workplace features, including its different method of mining, lack of coal preparation plant and local workforce.[8]
Where to from here?
No assumption of alignment
Prior to this decision, the SIEAs issued by the Fair Work Commission were in contexts where there was an overarching unity of purpose or pre-existing alignment between the Respondent Employers. For example in IEUA v Catholic Education Western Australia Ltd [2023] FWCFB 177 the application was not contested by the 10 relevant employers, who already operated within a systemic framework for the Catholic education sector.
This outcome is materially different. These employers may, for example, be rivals to attract relevant staff, and be pursuing different commercial or operational strategies in export markets. This highlights that the “forced friendship” of bringing these parties to the bargaining table cannot assume alignment. There is no requirement that common or complementary positions be adopted by the Respondent Employers, and the strategy between those employers may be just as interesting as the strategy towards APESMA.
Other industries where this strategy might be attractive
The APESMA outcome also raises the question of what other industries have the right combination of union membership, lack of current enterprise agreement coverage and employer commonality so as to attract similar union strategies.
Having regard to the Full Bench’s approach to identifying common interests, a key factor is likely to be industries where there is a shared workplace/employment strategy and operating climate (such as, for example, regulated sectors such as aged care, health or NDIS scheme providers). However the FW Act also contains a bargaining stream for “supported bargaining” that is analogous to the SIEA pathway, but premised on consideration of low prevailing pay and conditions in a relevant industry or sector, and this may be a more attractive path for some of these hypothetical cases.
Confidentiality will require ongoing consideration
Safeguarding confidential information was a material issue in the proceedings. At a basic level, the application by APESMA pushed the relevant employers into legal proceedings together, with a consequent requirement to put forward evidence dealing with their commercial, operational and employment strategies.[9] The Respondent Employers did so while seeking protections as to how that information could be used and shared.
Sections 593(3) and 594 of the FW Act provide a mechanism for the FWC to make orders maintaining the confidentiality of evidence in a FWC proceeding and limiting publication of relevant evidence, and a number of orders were granted in this case. Such orders:
- recognised certain defined submissions and elements of witness statements and the transcript as relevant confidential for the purposes of s593(3); and
- detailed the permitted use and undertakings required of the legal representatives and witnesses involved in the proceedings.
Interestingly, the Respondent Employers sought a further order at the conclusion of the matter that would require secure destruction or return of relevant material, subject to retaining material to fulfil professional obligations, but this was refused as unnecessary.[10]
The success of this application will mean that forced engagement will continue going forward. During the bargaining following the SIEA, all parties must meet the good faith bargaining (GFB) requirements set out in s228 of the Fair Work Act. This includes disclosing relevant information (other than confidential or commercially sensitive information) in a timely manner. Going forward, the SIEA will require close consideration of how this requirement will operate as between different employers at the same bargaining table.
There is a realistic scenario where the future bargaining by these parties will involve APESMA seeking to continue to draw the FWC into the process, whether through GFB applications or other avenues. The Respondent Employers will be navigating new ground, with strategic choices about how they choose to share or withhold information.
What will a “win” look like for APESMA?
Given the above, one strategy would be for the Respondent Employers to engage in bargaining in a minimalist manner and on the basis that it would, at its highest, entrench a minimalist baseline for staff, but not genuinely reflect their terms and conditions.
APESMA will likely be on high alert for any approach that suggest collaboration or a combined strategic that unfairly undermines collective bargaining. We should anticipate a high level of confrontation in the bargaining process, with recourse to the FWC to supervise and police the parties’ conduct via applications to deal with barraging disputes under s240 of the FW Act or applications alleging breach of the GFB requirements.
Ultimately, a win for the union might be persisting through at least 9 months of tense and difficult bargaining in order to set up a pathway for the FWC to ultimately arbitrate an outcome under the intractable bargaining provisions of the FW Act. It is plausible that this landmark bargaining win in fact ends up in an imposed outcome determined by our workplace umpire, the FWC.
[1] Association of Professional Engineers, Scientists and Managers, Australia v Great Southern Energy Pty Ltd T/A Delta Coal, Whitehaven Coal Mining Ltd, Peabody Energy Australia Coal Pty Ltd, Ulan Coal Mines Ltd [2024] FWCFB 253 (23 August 2024)
[2] [287]
[3] [283]
[4] [345]
[5] [347]
[6] [477].
[7] [495]
[8] [664]-[665]
[9] [17]
[10] [2024] FWCFB 322