Ashurst Bargaining Survey 2021 bargaining during the pandemic

However, employers were more likely to trigger bargaining themselves during the pandemic and the incidence of industrial action increased.

The mixed findings are contained in a detailed survey of employers who engaged in bargaining from 2020 to early 2021.

Global law firm Ashurst sought the views of employers including Australia’s Top 200 ASX listed companies, government agencies and not-for-profit entities. Respondents were asked about their most recent bargaining experience with each of their enterprise agreements and their views on aspects of the IR Reform Bill, with their answers distilled into 10 key findings.

The survey found bargaining during COVID-19 was concentrated in sectors that experienced increased or stable demand, or where employers sought a simple roll over of existing terms to ensure industrial stability. Almost half of employers who bargained during the pandemic initiated bargaining themselves – an increase of almost 45 per cent compared to the 2019 survey.

A third of respondents had enterprise agreements approved in the pandemic period, with the overwhelming majority of these in just six sectors: Construction and Infrastructure, Government, Manufacturing, Mining Resources, Transport and Logistics. 

Stephen Woodbury, partner and Ashurst global practice head, employment, commented:

"As expected, 2020 saw a significant increase in the number of applications for variations to existing enterprise agreements. Variations were sought by twice as many respondents who bargained during the pandemic, when compared to respondents who bargained prior to the pandemic."

"But the involvement of employers in triggering bargaining increased and time taken to negotiate agreements decreased during the pandemic period, suggesting many businesses put a priority on certainty during uncertain times."

Findings include: 

• Just under two thirds of respondents used video conferencing during bargaining, with 70 per cent of new users saying they would use this method for future bargaining. 
• Union claims have shifted, with a 23% decrease from 2017 to 2021 in respondents reporting requests for union training leave, a 21% decrease in requests for union delegate rights and a 12% decrease in requests for employee meetings.
• By contrast, union claims for contributions to redundancy entitlement protection funds, nomination of an industry superannuation fund and additional employer contributions to superannuation all increased during the pandemic period.
• Industrial action more than tripled during the pandemic, with 15% of respondents reporting industrial action taken by employees during the survey period compared to 4% in 2019.

The survey also found muted support for the proposed amendments in the Federal Government’s IR Reform Bill.

"The vast majority of respondents indicated little to no interest in the implementation of the proposed changes to the Better Off Overall Test (BOOT), or in utilising a short term ability to provide lesser entitlements than under the relevant modern award (with this proposed amendment now having been dropped by the Government from the Bill)," Stephen Woodbury said.

"Continuing the trend set in our 2017 and 2019 Survey responses, respondents lamented the difficulties they face in trying to get enterprise agreements approved, and the prevalence of a requirement for undertakings to the Fair Work Commission."