Unions flex new bargaining muscles:

How BHP was forced into enterprise bargaining at the Pilbara Mining Site

Recent changes in Australia’s industrial relations landscape have significantly shifted enterprise bargaining, particularly in industries like mining, where the balance of power has long favoured employers. A prime example of this shift is the situation at BHP’s Pilbara mine sites, where unions have successfully compelled the company into enterprise bargaining, marking a new era in industrial negotiations.

The old vs. the new: How bargaining used to work

Previously, unions had to jump through several hoops to initiate enterprise bargaining. They needed to request the employer’s agreement to start bargaining, and if the employer refused, the union could only proceed by obtaining a majority support determination from the Fair Work Commission. This process required the union to demonstrate that a majority of the employees covered by the agreement wanted to negotiate. This allowed employers like BHP to maintain significant control over when and how negotiations would take place.

However, the introduction of the Secure Jobs, Better Pay legislation has dramatically altered this process. Now, unions can force an employer to the bargaining table by simply sending a written notice, provided the agreement they seek to replace expired within the past five years. The requirement to show majority employee support has been removed, making it much easier for unions to initiate bargaining without needing to rally employee backing first.

The impact on BHP and the broader industry

The effects of this legislative change are already being felt in the Pilbara, where BHP has been compelled to enter negotiations with unions after a decade of keeping them at arm’s length. Agreements that expired within the last five years have provided the unions with the leverage they needed to initiate bargaining, even without majority support from employees.

This development has not only forced BHP into negotiations but also signalled a potential wave of unionisation across the Pilbara region. The unions are capitalising on the new laws to strengthen their position, knowing that the intractable bargaining provisions further tip the scales in their favour. If negotiations drag on for more than nine months, unions can apply for an intractable bargaining declaration, allowing the Fair Work Commission to step in and impose terms that cannot be less favourable than the existing agreement. This effectively removes the possibility of the employer negotiating for less favourable terms in exchange for other benefits, placing them at a distinct disadvantage​ (MEU)​ (HSF).

What this means for employers

The shift in power dynamics means that employers across Australia need to reassess their approach to enterprise bargaining. The strategies that once allowed employers to manage or delay negotiations are no longer effective. The new legislative framework not only simplifies the process for unions but also increases the likelihood of forced arbitration if negotiations become protracted. This places employers in a position where careful preparation and strategic planning are more crucial than ever, you can read more here​ (Clayton Utz).

3 hot tips for navigating the new bargaining landscape

1. Start preparing early: With the new rules in place, it’s vital to start planning your bargaining strategy well before your current agreement expires. This includes understanding the implications of the new laws and how they might be used against you.
2. Engage with employees: While unions can now initiate bargaining without majority support, having strong communication channels with your employees can help you gauge their sentiment and prepare for potential union approaches.
3. Seek expert advice: The complexity of the new industrial relations landscape means that specialized advice is more valuable than ever. Consulting with experts who understand the intricacies of the Secure Jobs, Better Pay legislation can provide you with the tools and strategies needed to navigate this challenging environment.

Get the support you need with hr gurus

Navigating these changes can be daunting, but you don’t have to do it alone. At HR Gurus, we specialise in helping businesses like yours adapt to the new industrial relations landscape. Whether you need help preparing for enterprise bargaining, understanding your obligations, or developing a strategy to maintain a competitive edge, our team is here to support you. Contact us today to learn how we can help you successfully manage your enterprise agreements in this new era of industrial relations.

Written by Emily Jaksch