New single interest employer agreements

From 6 June, employers and employees will be able to make a single interest employer agreement.

A single interest employer agreement is a type of multi-enterprise agreement that allows 2 or more employers (that are certain franchisees or with common interests) to be covered by the same agreement.

These agreements can only be made when a single interest employer authorisation is in operation immediately before the agreement is made.

Once an authorisation is made:

• the employers and employees specified in the authorisation are subject to certain rules in relation to the making of an agreement that would not otherwise apply, and
• the Commission has powers to assist parties during bargaining to reach an enterprise agreement that meets their needs.

An employer included in a single interest authorisation can only make a single interest employer agreement with the employees specified in the authorisation. They cannot bargain for any other kind of agreement with those employees or vary an existing agreement to include those employees.

A single interest employer authorisation can be varied in some circumstances to add or remove employers.

A single interest employer authorisation comes into operation the day it is made and ceases to operate at the earlier of:

• when the agreement to which it relates is made, or
• after 12 months, or such longer period, if extended by the Commission. The Commission may extend the period, on application, if it is satisfied that there are reasonable prospects that the agreement will be made if the authorisation is in operation for a longer period and it is appropriate in all the circumstances to do so.

You can apply for a single interest employer authorisation in relation to a proposed enterprise agreement that will cover 2 or more employers if you are:

• those employers, or
• a bargaining representative of an employee who will be covered by the proposed agreement.

The Commission must make a single interest employer authorisation if an application for the authorisation has been made and the Commission is satisfied that:

• at least some of the employees that will be covered by the proposed agreement are represented by a union
• the employers are certain franchisees or common interest employers, as they:
  • carry on similar business activities under the same franchise and are either franchisees or related bodies corporate of the same franchisor (or a combination of these), or
  • have clearly identifiable common interests with the other employers, it is not contrary to the public interest to make the authorisation, and the employers’ operations and business activities are reasonably comparable
• the employers and the employee bargaining representatives have had the opportunity to express their views (if any) on the authorisation to the Commission, and
• the additional requirements specified below are met (as applicable).

Common interests

Matters that may be relevant for determining common interests include:

• geographical location
• regulatory regime
• the nature of the enterprises (size and scope) to which the agreement will relate, and the terms and conditions of employment in those enterprises.

Presumption: If an employee bargaining representative applies for an authorisation and the employer that will be covered by the agreement employs 50 employees or more at the time the application is made, it is presumed that:

• the employer has clearly identifiable common interests with the other employers and it would not be contrary to the public interest to make the authorisation in relation to that employer, and
• the employer’s operations and business activities are reasonably comparable with those of the other employers that will be covered by the agreement,

unless otherwise proved.

Tip: In calculating the number of employees, all employees of the employer and of the employer’s associated entities are to be counted. This includes regular casual employees but does not include other casuals.  

Additional requirements

If 2 or more employers make the application, the Commission must also be satisfied that:

• the employers that will be covered by the proposed agreement have agreed to bargain together, and
• no one coerced, or threatened to coerce, any of the employers to bargain together.

If an employee bargaining representative makes the application, the Commission must also be satisfied that each employer either:

• has consented to the authorisation, or
• meets the following conditions:
  • the employer has at least 20 employees at the time the application was made — employers with less than 20 employees cannot be included in a single interest employer authorisation unless they agree
  • the employer has not made an application for a single interest employer authorisation that has not yet been decided in relation to the employees that will be covered by the agreement
  • the employer is not named in an existing single interest employer authorisation or supported bargaining authorisation in relation to the employees that will be covered by the agreement
  • a majority of the employer’s employees (employed at a time determined by the Commission) who will be covered by the agreement want to bargain for the agreement – the Commission may assess whether a majority of an employer’s employees want to bargain using any method it considers appropriate.
  • the employer and the employees that will be covered by the agreement are not covered by an enterprise agreement that has not passed its nominal expiry date at the time the Commission will make the authorisation, and the employer and a union entitled to represent the industrial interests of employee(s) that will be covered by the agreement have not already agreed in writing to bargain for a proposed single enterprise agreement that would cover the same (or substantially the same) employees.

Restrictions on making an authorisation

The Commission cannot make a single interest employer authorisation if the proposed agreement to which the authorisation relates would cover employees in relation to general building and construction work.

Excluding employers from an authorisation

If the Commission is only satisfied that some of the employers that will be covered by the agreement are certain franchisees or common interest employers as described above, we may make a single interest employer authorisation that only specifies those employers and their employees.

The Commission may also exclude employer(s) named in an application from a single interest employer authorisation if:

• the employers are bargaining in good faith for a proposed enterprise agreement that will cover the same (or substantially the same) employees
• the employers and relevant employees have a history of effectively bargaining in relation to one or more enterprise agreements that have covered the same (or substantially the same) employees, and
• on the day the Commission will make the authorisation, less than 9 months have passed since the most recent nominal expiry date of such an agreement. 

Removing employers from a single interest employer authorisation 

You can apply to vary a single interest employer authorisation to remove an employer if you are:

• the employer
• a bargaining representative of an employee who will be covered by the proposed enterprise agreement to which the authorisation relates.

The Commission must vary the authorisation to remove the employer’s name if:

• the employers specified in the authorisation and the bargaining representatives of the employees of those employers have had an opportunity to express their views (if any) on the application to the Commission, and
• it is no longer appropriate for the employer to be specified in the authorisation because of a change in the employer’s circumstances.

In addition, if an employee bargaining representative applies, we must vary the authorisation to remove an employer if satisfied:  

• the employer employs less than 50 employees
• the other employers specified in the authorisation and the bargaining representatives of employees of those employers have had the opportunity to express their views (if any) on the application to the Commission
• a majority of the relevant employees (employees who are employed by the employer who is to be removed from the authorisation) have voted to approve the removal of the employer’s name, and
• there are no reasonable grounds for believing that the removal has not been genuinely approved by the employees.

Adding employers to a single interest employer authorisation 

You can apply to vary a single interest employer authorisation to add an employer if you are:

• the new employer
• a person who is a bargaining representative for the proposed enterprise agreement to which the authorisation relates and of an employee of the new employer.

In broad terms, in considering an application to vary a single interest employer to add an employer, the Commission must consider the same matters as are involved in deciding whether or not to make the authorisation.

The Commission must vary the authorisation if satisfied:

• the employers specified in the authorisation and the bargaining representatives of their employees have had an opportunity to express their views (if any) to the Commission on the application
• if the new employer’s name is added, the employers specified in the authorisation will continue to be certain franchisees or common interest employers, as described above. Where an employee bargaining representative applies for the variation, this is presumed where the employer has 50 employees or more, unless otherwise proved, and
• the additional requirements specified below are met (as applicable).

Additional requirements

Applications made by the new employer – the Commission must also be satisfied that no one coerced, or threatened to coerce, the new employer to apply to be added.

Applications made by a bargaining representative – that the new employer:

• employed at least 20 employees at the time the variation application was made
• has not made an application for a single interest employer authorisation that has not yet been decided in relation to the employees that will be covered by the agreement
• is not named in an existing single interest employer authorisation or supported bargaining authorisation in relation to the employees that will be covered by the agreement
• a majority of the new employer’s employees (employed at a time determined by the Commission) who will be covered by the agreement want to bargain for the agreement
• the new employer and the employees that will be covered by the agreement are not covered by an enterprise agreement that has not passed its nominal expiry date at the time the Commission will make the variation, and
• the new employer and a union entitled to represent the industrial interests of their employee(s) that will be covered by the agreement have not already agreed in writing to bargain for a proposed single enterprise agreement that would cover the same (or substantially the same) employees.

However, as is the case when making a single interest employer authorisation, the Commission may refuse to vary the authorisation if:

• the new employer is bargaining in good faith for a proposed enterprise agreement that will cover the same (or substantially the same) employees
• the new employer and those employees have a history of effectively bargaining in relation to one or more enterprise agreements that have covered the same (or substantially the same) employees, and
• on the day the Commission will vary the authorisation, less than 9 months have passed since the most recent nominal expiry date of such an agreement expired. 

Restrictions on varying an authorisation

The Commission cannot vary a single interest employer authorisation if, as a result of the variation, the proposed agreement to which the authorisation relates would cover employees in relation to general building and construction work.