Competition regulator wants to give owner-drivers in Adelaide the power to collectively bargain.
Independent Contractors Australia (ICA) faces seeing the Australia Competition and Consumer Commission (ACCC) allowing another collective bargaining agreement between Toll and the Transport Workers Union.
The development in South Australia comes 18 months after the ICA listed a series of objections following evidence at the Royal Commission into Trade Union Governance and Corruption in July last year.
Those objections were focused against a Queensland deal and went to the Australian Competition Tribunal but were found to have failed to reach a threshold where competition in the fragmented transport and logistics market was curtailed sufficiently for action.
Now the ACCC proposes to authorise the TWU and its owner-driver members around Adelaide bargain as a group with Toll for freight-courier contracts, with its reasoning directed at ICA objections.
The ACCC notes the ICA considers that unions should not be able to lodge applications for authorisation for collective bargaining because they are expressly prevented from doing so under an alternative process called ‘notification’.
“The legislation does not prevent unions from lodging a collective bargaining authorisation application,” ACCC chairman Rod Sims says.
“Unlike collective bargaining notifications, the authorisation regime does not have limitations on who can use it and in what circumstances it can be used.”
ICA was also concerned that the TWU and Toll are not fit and proper organisations to be granted authority to collectively bargain, in light of the Royal Commission testimony.
ICA’s concerns included that the TWU created arrangements with some companies and then sought to enforce them on others.
“The proposed authorisation is limited to voluntary negotiations to establish new courier contracts at Toll’s South Australian depots,” Sims says.
“Any attempt by TWU’s SA members to collectively negotiate with organisations other than Toll is beyond the scope of the proposed authorisation.”
The ACCC has also granted interim authorisation for the union and its members to start negotiations with Toll, on the basis that no contracts would be entered into until the ACCC issues its final determination.
There is scope for more objections as the ACCC is seeking submissions on its draft determination before making a final decision.
Authorisation provides statutory protection from court action for conduct that might otherwise raise concerns under the competition provisions of the Competition and Consumer Act 2010 (Cth).
Broadly, the ACCC may grant an authorisation when it is satisfied that the public benefit from the conduct outweighs any public detriment.