Low-paid authorisations

See Fair Work Act 2009 ss.242–245

A bargaining representative or a union entitled to represent the industrial interests of an employee in relation to work to be performed under a proposed multi-enterprise agreement may apply for a low-paid authorisation.[1]

If granted, a low-paid authorisation makes additional rules applicable to certain employers in relation to a multi-enterprise agreement. Employers specified in a low-paid authorisation will be obliged to bargain in good faith and will be required to give employees a notice of employee representational rights (which is not generally the case for multi-enterprise agreement making).[2]

An application for a bargaining order cannot be made in relation to a proposed multi-enterprise agreement unless a low-paid authorisation is in operation in relation to the agreement.[3] The Fair Work Commission also has additional powers to facilitate bargaining for the agreement (including on its own initiative).

A low-paid authorisation is only available in relation to a proposed multi-enterprise agreement, and cannot be made in relation to a proposed greenfields agreement.[4]

An application for a low-paid authorisation must specify the employers and employees that will be covered by the agreement.

If an application has been made, the Commission must make a low-paid authorisation if satisfied that it is in the public interest to make the authorisation.[5]

In considering whether it is in the public interest to make a low-paid authorisation, the Commission must take into account the following matters related to historical and current collective bargaining:

• whether granting the authorisation would assist low-paid employees who have not had access to collective bargaining or who face substantial difficulty bargaining at the enterprise level
• the history of bargaining in the industry in which the employees who will be covered by the agreement work
• the relative bargaining strength of the employers and employees who will be covered by the agreement
• the current terms and conditions of employment of the employees who will be covered by the agreement, as compared to the relevant industry and community standards, and
• the degree of commonality in the nature of the enterprises to which the agreement relates, and the terms and conditions of employment in those enterprises.[6]

The Commission must also take into account the following matters related to the likely success of collective bargaining:

• whether granting the authorisation would assist in identifying improvements to productivity and service delivery at the enterprise to which the agreement relates
• the extent to which the likely number of bargaining representatives for the agreement would be consistent with a manageable collective bargaining process
• the views of the employers and employees who will be covered by the agreement
• the extent to which the terms and conditions of employment of the employees who will be covered by the agreement is controlled, directed or influenced by a person other than the employer, or employers, that will be covered by the agreement
• the extent to which the applicant for the authorisation is prepared to consider and respond reasonably to claims, or responses to claims, that may be made by a particular employer named in the application, if that employer later proposes to bargain for an agreement that would:
  • cover that employer, and
  • not cover the other employers specified in the application.[7]

Where the Commission has made a low-paid authorisation, it comes into operation on the day on which it is made.[8] The authorisation must specify:

• the employers that will be covered by the agreement (which may be some or all of the employers specified in the application), and
• the employees that will be covered by the agreement (which may be some or all of the employees specified in the application).[9]

A low-paid authorisation may be varied to add and remove employer names.[10]

The Commission must vary the low-paid authorisation to remove an employer’s name if it is satisfied that, because of a change in the employer's circumstances, it is no longer appropriate for the employer to be specified in the authorisation.[11]

The Commission must vary a low-paid authorisation to add an employer's name if it is satisfied that it is in the public interest to do. In determining whether is in the public interest to add an employer's name to a low-paid authorisation, the Commission must take the same matters into account as those taken into account when deciding whether or not to make a low paid authorisation.[12]

If a low-paid authorisation is in operation in relation to a proposed multi-enterprise agreement, the Commission may, on its own initiative, provide the bargaining representatives for the agreement with assistance that the Commission:

• considers appropriate to facilitate bargaining for the agreement, and
• could provide if it were dealing with a dispute (except for arbitration).[13]

Low-paid authorisation made

HideUnited Voice v The Australian Workers' Union of Employees, Queensland

United Voice v The Australian Workers' Union of Employees, Queensland [2011] FWAFB 2633 (Giudice J, Watson VP, Gay C, 5 May 2011).

United Voice and the AWUQ jointly applied for a low-paid authorisation in relation to employees engaged in the residential aged care sector in certain parts of Australia and enrolled nurses in the aged care sector in Western Australia. The President of the Commission directed that the matter be dealt with by a Full Bench.

The Full Bench accepted that, in general terms, employees in the aged care sector are low-paid. Given that a number of employers listed in the application were covered by enterprise agreements, the Full Bench could not be satisfied that all of the employees had not had access to collective bargaining. However, they considered that the existence of enterprise agreements was a matter to be considered when determining the scope of an authorisation to be made.

Overall, leaving out of consideration employers and employees to whom an enterprise agreement applied, the Full Bench was satisfied that the employees to whom the authorisation would apply were low-paid, that they either had not had access to enterprise bargaining or faced substantial difficulty in bargaining at the enterprise level and that making an authorisation would assist them to bargain. Accordingly, an authorisation was made.

Low-paid authorisation NOT made

Re United Voice

Re United Voice [2014] FWC 6441 (Gostencnik DP, 29 September 2014).

United Voice made an application for a low-paid authorisation in relation to a multi-enterprise agreement covering five security industry employers in the Australian Capital Territory. The employers opposed the making of the authorisation.

The Commission was satisfied that some of the employees to be covered by the proposed enterprise agreement were low-paid employees. However, the Commission was not satisfied that the employees faced significant obstacles to bargaining, given that three of the five employers already had enterprise agreements. In addition, the Commission was not satisfied that United Voice would readily consider proposals from particular employers that would result in a single interest enterprise agreement. Accordingly, the application was dismissed.

Not in the public interest

Australian Nursing Federation v IPN Medical Centres Pty Limited and Ors [2013] FWC 511 (Watson VP, 17 June 2013).

The ANF lodged an application for a low-paid authorisation in relation to nurses employed in general practice clinics and medical centres performing nursing work. The ANF sought an authorisation which would permit it to bargain for a multi-enterprise agreement covering all of the employers named in a list of respondents. For several years the ANF had attempted to negotiate an improved package of terms and conditions based on the benefits provided to nurses in the public hospital sector. Its attempts had been met with strong opposition by general practice employers.

The Commission concluded on the evidence presented by the parties in this matter that a low-paid authorisation may provide some assistance to some low paid employees, however, most practice nurses do not fall within established definitions of 'low-paid' employees, the assistance to low paid employees is likely to be marginal. The ANF had faced difficulty bargaining on behalf of its members. It had not however accessed all rights available under the Fair Work Act to advance the interests of its members by way of enterprise-based negotiations.

In all of the circumstances the case for the authorisation was not strong and several important factors indicate that multi-employer bargaining was undesirable or less appropriate than genuine enterprise-based bargaining. For these reasons the Commission was not satisfied that it was in the public interest to make the authorisation. The application was therefore dismissed.