Ashurst Bargaining Trends Survey 2024: Enterprise Bargaining in the age of Closing Loopholes

Global law firm Ashurst has released its 2024 Bargaining Trends Survey Report today, revealing the impact on employers of recent legislative reforms relating to enterprise bargaining.

Between 2023 and 2024, the Australian Government enacted a range of legislative reforms in enterprise bargaining, introducing multi-employer bargaining (MEB), changing consideration of the better-off overall test (BOOT), and granting the Fair Work Commission (FWC) increased intervention powers.

Respondents to the Survey come from a diverse range of sectors, including infrastructure, finance, technology, healthcare, and government, and includes Top 200 ASX-listed companies and major Government departments and agencies.

Findings include:

• Minimal impact of MEB: Despite initial concerns, the introduction of MEB has not significantly impacted employers. The Survey reveals that 93% of respondents have not been approached about, nor are they considering, MEB. This contrasts with 51% of respondents to our 2023 survey expressing concerns about MEB.
• Union bargaining priorities: While workers' pay remains the top union priority amongst respondents (95.3%), it is now closely followed by claims for the rights of union delegates (74.4%) and union training leave (69.8%). These are the highest proportions of respondents noting delegates' rights claims since we commenced these Surveys in 2017, reflecting the consequences of the recent legislative changes and the resurgence of union influence in Australian workplaces.
• Increase in Protected Industrial Action (PIA): The Report indicates a rise in PIA, with 20.9% of respondents experiencing PIA during their most recent bargaining, up from 16.7% of respondents in our 2023 Survey. This trend is consistent with Australian Bureau of Statistics data, which shows a significant increase in working days lost due to industrial disputes.
• Changes in bargaining approach due to prospect of Intractable Bargaining Declarations (IBD): Over 30% of respondents reported altering their bargaining approach due to the prospect of an IBD, with the manufacturing and mining sectors being the most concerned. The prospect of IBDs has led to earlier bargaining.
• Minimal impact of the right to disconnect: The newly established right to disconnect, aimed at addressing the issue of employees being contacted outside of work hours, is expected to have minimal impact. 46.5% of respondents indicated the new right to disconnect would have no effect, yet 34.9% of respondents reported the right to disconnect was sought during bargaining.

Stephen Woodbury, Global Practice Head at Ashurst, commented:

Our 2024 Bargaining Trends Survey provides valuable insights into the current state of enterprise bargaining in Australia, highlighting the effects of recent legislative changes and emerging trends in the bargaining landscape. The findings underscore the adaptability of employers, unions, and employees in navigating these reforms. As we look ahead, monitoring how these trends evolve will be crucial, especially as workplace reforms are likely to be back in the spotlight in 2025.