In this impending round of bargaining for a Queensland pattern ETU EBA it is now confirmed that 11 NECA members and the ETU, without the involvement of MEA, have received approval for a single interest employer authorisation from the Fair Work Commission in relation to SEQ major projects. A separate but similar decision involving 4 NECA members and the ETU applies to major regional Qld projects.
The group of major electrical contractors will now bargain as a single bargaining unit. This will likely result in a multi-employer bargaining agreement for a replacement EBA.
While bargaining for the terms of the replacement agreement have not yet been finalised it is the implications of the document being a multi-employer agreement that should be of major concern to the industry. In particular those employers who have 20 or more employees. MEA does not support multi-employer bargaining for the electrical industry.
Those contractors who also might consider themselves as ‘tier 2 and 3’ contractors. The concern is that these employers are at greatest risk of being roped in, by application, to a new agreement.
The Fair Work Act rules make it easier for employers to be added to an existing single-interest employer agreement, including without the employer’s consent (provided a majority of the relevant employees approve), subject to the following safeguards:
- Employers with fewer than 20 employees cannot be added to a single-interest employer agreement or authorisation without their agreement.
- The FWC may refuse an application to add a new employer to a single-interest employer agreement or authorisation where the employer has a recent history of effective enterprise bargaining and fewer than nine months have passed since the nominal expiry date of its most recent enterprise agreement.
Employers can object to the application to be added to an existing single interest employer agreement but the onus is on the employer to establish that it does not have clearly identifiable common interests with the other employers or that its operations and business activities are not reasonably comparable with those of the other employers.
The decisions confirm the basis on which these employers were considered as sufficiently holding a ‘common interest’. As an example of the ‘common interest’ found to exist by the Commission, for the SEQ decision it was found:
- That they are SE Qld based
- Are frequently the principal electrical contractor for large-scale high-value infrastructure and development projects in South East Queensland. And frequently compete with each other for the same work
- often hire from the same labour pool
- Share common regulatory framework including coverage of the Electrical award (MA000025)
- Share similar organisational structures including engineering, safety and corporate services
In response to this development larger electrical contractors may seek to consider their own position and options.
Available avenues
- Maintain enterprise agreement coverage. A business with a current enterprise agreement is generally protected from being added to a newly created single-interest employer agreement.
Employers should seek to maintain continuous enterprise agreement coverage by negotiating replacement agreements before the existing agreement reaches its nominal expiry date.
- Maintain a workforce of fewer than 20 employees. Including those employees who are, regular casual employees and Employees of associated entities
- Defend by being prepared to establish (in the Fair Work Commission) that the business does not have clearly identifiable common interests if they receive an application to be joined to a multi-employer agreement.
MEA’s Workplace Relations Team can assist, at no additional cost. We provide industrial relations advice, template EBAs and FWC assistance all included in your membership fees. We’re always just a phone call away.
