Article

Journal of Industrial Relations

2022, Vol. 64(3) 362–379
Unions and collective © Australian Labour and Employment
Relations Association (ALERA) 2022
bargaining in Australia SAGE Publications Ltd, Los Angeles,
London, New Delhi, Singapore and
in 2021 Washington DC
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/00221856221100381
journals.sagepub.com/home/jir

Mihajla Gavin
University of Technology, Sydney (UTS) Business School
Australia

Abstract
This article reviews the year across collective bargaining, union policy and strategy, as
well as industrial responses to the COVID-19 pandemic. While the industrial environ-
ment rebounded slightly from the initial impact of the pandemic in 2020, similar themes
persisted throughout 2021, including declining coverage of employees under collective
agreements, a difficult bargaining environment in ‘essential’ industries, limited cooper-
ation of the industrial relations parties during developments in the pandemic response
and a continued pattern of low wages growth. While trade unions achieved isolated
‘wins’ on key matters, at a system level there continues to be enduring issues of low
wages, insecure work and frustrations with the collective bargaining system, while the
nation attempts to recover from the impact of the pandemic.

Keywords
Union strategy, collective bargaining, enterprise agreements, industrial dispute, COVID-19,
pandemic, unions, wages, union membership, industrial relations

Introduction
The ongoing pandemic once again presented an opportunity (albeit limited) for cooper-
ation and constructive relations between governments, unions and employer groups.
However, the goodwill built between the parties in early 2020 was lost in the continuing
pandemic response, seeing a retreat to more traditional adversarial positions.

Corresponding author:
Mihajla Gavin, Management Department, University of Technology, Sydney (UTS) Business School, PO Box 123
Broadway NSW 2007, Sydney, Australia.
Email: mihajla.gavin@uts.edu.au
Gavin 363

On ‘business-as-usual’ matters, many unions faced a hostile environment for bargaining.

Protracted negotiations occurred in key sectors, attended by robust industrial action at
times. The enterprise bargaining system continued in contributing to low wages
growth and weakening of worker power.
This annual review of unions and collective bargaining in Australia will explore major
developments in union policy, strategy and outcomes from collective bargaining, as well
as industrial responses to the ongoing COVID-19 pandemic. It begins by focusing on
movements in collective bargaining, wages, industrial disputes and union membership,
as well as outcomes from the new ‘union demerger’ laws. After this, union strategy
and bargaining are analysed in major disputes occurring during 2021 across sectors crit-
ical in the pandemic recovery effort. Union policy and strategy is then examined in
matters beyond bargaining, including around safety at work, wage theft, insecure work
and outsourcing. It concludes with analysing the evolving response of the industrial rela-
tions (IR) actors to the pandemic, including developments in IR reform and the impact of
the vaccine rollout.

Collective bargaining, wages and industrial disputes

The review on collective bargaining explores trends in collective agreement-making,
wages and industrial disputes. Data are sourced from the Workplace Agreements
Database held in the Attorney General’s Department (ADG, 2021), the Australian
Bureau of Statistics (ABS, 2021a, 2021b) and selected media reports. The data suggest
a continued decline in the coverage of collective agreements and only a slight rebounding
in the number of collective agreements during the year. A pattern of low wages growth
and industrial disputation also continued from the previous year.

Incidence and coverage of collective agreements

The number and coverage of collective agreements continued the overall trend of decline
in recent years. Over 2021, the number of current collective agreements steadily
increased following the initial shock of the pandemic. However, these agreements con-
tinued to cover fewer employees (Figure 1). The number of agreements increased from
9995 in the December quarter of 2020 to 10,646 in the December quarter of 2021.
However, the number of employees covered by these agreements decreased from 1.65
million to 1.90 million employees over the same period. Comparing aggregate data of
employee coverage across the years, the average number of employees covered by
current agreements also dropped over the 2020–2021 period. While this trend can
partly be explained by long-term structural factors associated with barriers to bargaining
(see Pennington, 2018), this specific period shows that employee coverage of current
agreements has been falling since the start of the pandemic due to the large number of
agreements that have expired without replacement. The number of newly approved agree-
ments also showed a different trend from the previous year, suggesting some bounceback
from the initial impact of the pandemic in 2020. While in 2020, there were 3281 new
agreements approved, this increased to 4360 agreements approved over 2021.
364 Journal of Industrial Relations 64(3)

Figure 1. Current agreements and employee coverage (December quarter 2018 to December
quarter 2021).
Source: Attorney General’s Department (2021), Workplace Agreements Database. Trends in
Federal Enterprise Bargaining Report, December quarter 2021.

The number and coverage of non-union collective agreements showed a similar

pattern to 2020, being low across both incidence and coverage. The number of new non-
union collective agreements increased slightly over 2020–2021 from 734 to 796
approved. But their proportion compared to all agreements remained relatively low; non-
union collective agreements continued to represent around one-fifth of all new agree-
ments (22% in 2020; 18% in 2021). The data on current non-union collective agreements
showed a slight decline over 2020–2021. The proportion of employees covered by non-
union agreements also remained very low at 6.5% of all agreements. However, this was a
slight increase from 2020 where the proportion of employees covered by non-union
agreements was 5.8%. Non-union agreements also continued to operate for a longer dur-
ation than union agreements over 2021 (3.5 years compared to 2.9 years, on average).

Developments in enterprise bargaining

While the ‘IR Omnibus Bill’ failed to bring about changes to Australia’s enterprise bar-
gaining system, discussed later in this review, there were, however, some developments
in the enterprise bargaining system during the year. Employer commentary in early 2021
criticised how the failure of the Bill could jeopardise future wages growth
(Marin-Guzman, 2021a). Chief Executive of the Business Council of Australia,
Jennifer Westacott, commented on the enduring complexity of the system, decrying
how ‘the changing interpretation of the better off overall test…has contributed to a
more flawed system that is more procedurally complex and harder to navigate’
(Marin-Guzman, 2021b). Indeed, McDonalds and Dominos also confirmed they would
not return to enterprise agreements following the failure of the proposed enterprise
Gavin 365

bargaining reforms (Marin-Guzman, 2021c). However, the Fair Work Commission

(FWC) promised to speed up the approval of enterprise agreements, revealing new
targets (e.g. to approve 50% of compliant agreements in 10 working days rather than 3
weeks, and 95% in 20 days instead of 100% in 8 weeks) (Hannan, 2021a).

Wage outcomes
The decade-long trend of low wages growth continued to be a serious problem for the
Australian economy in 2021. Wages returned to a regular pattern of modest growth by
the end of 2021 after disruptions due to COVID-19 throughout 2020 and early 2021
(Figure 2). Over 2021, the Wage Price Index (WPI) rose 2.3%, rebounding from a low
of 1.4% in 2020. Within these aggregate numbers, annual wage growth over the year
ranged from 3.5% for the ‘Accommodation and food services’ industry (influenced by
the payment of two FWC annual wage increases in 2021) to 1.3% for the ‘Electricity,
gas, water and waste services’ industry. The highest wage growth was in Tasmania
with a rise of 3.0%, while Western Australia recorded the lowest rise through the year
of 2.0%.
While private sector rates of pay returned to their ‘pre-pandemic pattern’ after labour
market disruptions, public sector rates remained low. Through the year, private sector
rates of pay rose 2.4%. The ABS attributed this to various reasons including sustained
demand extended across industry groups (previously visible in only isolated pockets)
which resulted in larger increases to attract and retain skilled staff, and a greater

Figure 2. Annual wage growth by sector, seasonally adjusted.

Source: Australian Bureau of Statistics (2021a), Wage Price Index.
366 Journal of Industrial Relations 64(3)

proportion of award-based wage rises during the year. In the public sector, rates increased
by 2.1% over the year, up from a record 24-year low of 1.3% in June quarter of 2020.
However, wages in the public sector remained low despite the very high workload and
work demands that were placed on key areas of the public sector workforce, including
teachers and nurses, during the pandemic (see Adelson et al. 2021; Wilson et al. 2020).
Public sector wage caps continued to be blamed for contributing to wage stagnation. For
example, in NSW, public service pay rises have been capped at 2.5% annually for the last
decade (Gavin, 2019) and a near pay freeze was instigated by the NSW government in
response to the pandemic in 2020 (Workplace Express, 2021a). Beyond 2021, the Reserve
Bank of Australia forecasted that wages would increase over the next 2–3 years, but ‘only
gradually’. The Governor of the Reserve Bank, Philip Lowe, indicated that this was partly
due to issues with ‘Australia’s wage-setting processes, which create inertia in aggregate
wage outcomes’, including renegotiation of enterprise agreements only every 2–3 years and
public sector wages policies (Lowe, 2021). It is worth noting, however, the history of the
RBA’s ‘poor forecasting record’ in overstating prospective wages growth (Keating, 2021a).1
Regarding wages under enterprise agreements, as usual, wage movements continued to be
higher in workplaces covered by enterprise agreements than the generalised numbers reported
in the WPI. However, they did not increase much faster than the WPI in 2021, namely due to
pandemic-driven pay caps and freezes at state and federal levels. Compared to the WPI of
2.3% over 2021, the average annualised wage increase (AAWI) for agreements approved
over 2021 ranged between 2.6% and 2.7% for private sector agreements, and 2.1% and
2.7% for public sector agreements. Wage increases in newly approved union agreements
also continued to be higher compared to non-union collective agreements during 2021 –
between a range of 2.4%–2.7% compared to 2.1%–2.5%, respectively.
Increases in the national minimum wage were more generous in 2021 compared to
2020. Off the back of a 1.75% increase in 2020 (the smallest increase in 12 years), the
FWC announced a 2.5% increase in the minimum wage, stating that the circumstances
of 2021 were different from 2020. Submissions to the FWC annual wage review panel
emphasised that the performance of the economy had exceeded expectations.

Industrial disputes
The level of industrial disputation in 2021 continued the long-term trend of being consid-
erably lower than in the 1980s and prior decades. However, there was a very modest rise
in the number of industrial disputes in late 2021 compared to the drop in disputes in 2020
due to the pandemic (Figure 3). The ABS reports data on industrial disputes, including
general strikes, unauthorised stop work meetings, lockouts and other types of industrial
action, if the work stoppages amount to 10 or more working days lost (WDL) within a
month. There were 130 disputes over 2021 compared to 77 in 2020 (a 69% increase).
These disputes involved a total of 116,600 WDL, which was 83,000 more than the pre-
vious year. Towards the end of 2021, most WDL were in education, health care and social
assistance industries. This may reflect campaigns by unions in these industries for
improvements to salaries and working conditions, particularly given increased work
demands in the public sector during the pandemic, discussed later in this review.
Gavin 367

Figure 3. Industrial disputes in the last 10 years, Australia.

Source: Australian Bureau of Statistics (2021b), Industrial disputes.

Union membership and governance

There were no new official data released on union membership. The ABS’ biennial report on
trade union membership is anticipated for release in late 2022. Although latest available offi-
cial statistics showed union density was 14.3% in August 2020 – a drop from 14.6% in 2018
– there were signs abroad that the pandemic was interrupting the long decline in union mem-
bership in Western industrialised countries. For instance, in 2020 the United States recorded
a modest increase in union density, up 0.5% to 10.8% (Workplace Express, 2021b). With the
Australian Council of Trade Unions (ACTU) Secretary, Sally McManus, claiming that
‘nearly every union has seen growth in membership’ during 2020 (although official statistics
have not captured this yet, Bray et al. 2020), it will be interesting to see the impact of the
pandemic on Australia’s rate of union membership over 2020–2021 when new data are
released, particularly given modest signs of industrial unrest. Data self-reported by unions
so far presents an uneven story about membership trends across the union movement in
Australia during the pandemic.2 Of the data available, increases in membership have
notably been seen in health care and education industries.
With respect to union governance, 2021 saw the Coalition’s Government’s new ‘union
demerger’ laws, supported by the Australian Labor Party, tested. The mining and energy div-
ision (M&E division) of the Construction, Forestry, Maritime, Mining and Energy Union
(CFMMEU) became the first division to test the Fair Work (Registered Organisations)
Amendment (Withdrawal from Amalgamations) Act, which would extend the ability for a
union to withdraw from an amalgamation beyond the first 5 years of merging.
368 Journal of Industrial Relations 64(3)

Union delegates at the M&E division’s national convention voted unanimously to leave
the CFMMEU and form their own independent union, stating that it had never felt more iso-
lated within the union movement and broader community (Marin-Guzman, 2021d). Despite
originally merging with the then CFMEU in 1995, the mining division argued it had become
part of the broader union in 2018 when the maritime union joined and there were subsequent
changes to the organisation including voting influence. But their attempt was denied by the
FWC. The FWC argued that the division did not meet the legal threshold for its members to
vote on whether they wanted to withdraw from the larger union. FWC President Justice Iain
Ross stated that it was ‘clear that the mining and energy division existed in its current form as
part of the CFMEU before the amalgamation and now continues to exist, unaltered, after the
amalgamation. It did not become part of that organisation ‘as a result of’ the 2018 amalgam-
ation’ (Marin-Guzman, 2021e). Despite bipartisan political support for the new law and a
unanimous decision of the division’s members to ‘divorce’ from the CFMMEU, a legal tech-
nicality thwarted the union’s efforts. The M&E division is currently appealing the rejection
of its demerger application before the Federal Court (Marin-Guzman, 2022).

Union strategy and bargaining across key sectors

Unions led several campaigns in key sectors that faced expired enterprise agreements,
stalling wages, worsening conditions and threats to job security. Unions leveraged struc-
tural power from the economic conditions in their campaigns. Several major disputes in
2021 spanned ‘essential’ industries that were critical to the supply of products and ser-
vices during the pandemic. These cases also revealed enduring problems at the heart
of the IR system, including the challenges for genuine bargaining and workplace
decision-making (Baccaro and Howell, 2017).

Transport and logistics

With enterprise agreements for all major trucking companies expiring in June, the Transport
Workers Union (TWU) led a coordinated bargaining campaign – deferred in 2020 due to the
pandemic – with companies including Toll, Linfox, StarTrack and FedEx. At the heart of
negotiations were concerns around threats to job security from an expanding gig economy
and competition in the sector. However, difficult negotiations prompted an almost year-long
dispute and sparked rolling national stoppages at a time of reliance on the delivery of vacci-
nations and household goods during lockdowns. The TWU sought greater restrictions on the
use of outsourced staff and labour hire workers who were being paid less than unionised
direct employees, plus a commitment to paying the same rates for labour hire workers per-
forming the same work as employees (Workplace Express, 2021c). The union also sought
pay and superannuation increases, citing large profits of these companies.
Thousands of workers at Toll commenced the first wave of strikes in the industry with
a 24-hour national strike in late August following stalled negotiations on overtime for
permanent staff and pay parity for external hires (Marin-Guzman, 2021f). This stoppage
was the first national strike in road transport in more than a decade (Marin-Guzman,
2021f). Hundreds of StarTrack drivers took similar action in late September demanding
Gavin 369

stronger job security guarantees (Janda, 2021). An effort by StarTrack to cancel the
planned 24-hour strike failed. The FWC stated that StarTrack showed ‘little evidence’
that the protected action would jeopardise lives or health by delaying essential supplies.
This was predominantly due to the fact that the TWU provided assurance that delivery of
essential medical supplies, including the COVID-19 vaccine, would be exempt from the
industrial action (Janda, 2021; Workplace Express, 2021d).
Further threats of industrial action prompted an in-principle agreement being reached
between Toll and the TWU, followed by an agreement struck with StarTrack. These agree-
ments included industry-leading superannuation rates, improvements in pay and outsour-
cing, as well as commitment to further consultation and auditing of jobs (Hannan, 2021b;
Workplace Express, 2021e). Agreement was also reached with FedEx for improved pay,
superannuation and job security provisions, but not before thousands of FedEx workers
walked off the job and threatened further action (Workplace Express, 2021f).

Public sector
Disputes occurred in the public sector in relation to worsening pay and conditions, at
times in response to COVID-19. Early in the year, Queensland nurses raised concerns
around appropriate personal protective equipment (PPE). This prompted the
Queensland Nurses and Midwives Union to take Queensland Health to the Industrial
Relations Commission (IRC) over fears that nurses were not being fitted properly with
PPE (Stewart, 2021b). In NSW, nurses and midwives took stop work action at hospitals
in South-West Sydney in a dispute with the state government over the state wages cap and
nurse-to-patient ratios (White et al. 2021; Workplace Express, 2021g).
Teacher unions in the Victorian and New South Wales public education systems also
led industrial campaigns in response to stalling salaries, unsustainable workloads and
worsening teacher shortages. In NSW, public sector teachers took industrial action for
the first time in a decade, following a stalemate in award negotiations with the NSW
Government. The Teachers’ Federation sought pay increases of up to 7.5% per year, add-
itional planning time for teachers, and reduced workloads (Gavin, 2021). Underlying this
industrial campaign were also demands for greater professional respect for teachers. The
Federation was particularly concerned over the government’s failure to prioritise teachers
as part of the vaccination rollout (Baker, 2021a). Despite a ruling by the NSW IRC not to
engage in strike action, the union held a 1-day strike in late 2021. In response, the NSW
Education Minister accused the Federation of being ‘an obstructionist protection racket’
that was ‘hell-bent on hanging students out to dry for political purposes’ (Baker, 2021b).
As of early 2022, the industrial campaign by the Federation continues.

Food manufacturing
With several enterprise agreements in the food manufacturing industry expiring in 2021,
unions also took action against large food manufacturers that profited during the pan-
demic. Workers at McCain’s Smithton plant in Tasmania sought 4% annual pay rises
over 3 years to lift their wages to those of equivalent McCain employees on the mainland
370 Journal of Industrial Relations 64(3)

(Hannan, 2021c). However, they were locked out after the Australian Manufacturing
Workers’ Union (AMWU) gave notice that employees intended to take protected indus-
trial action. The lockout occurred despite no industrial action having been taken by the
workers. A Full Bench majority of the FWC found the lockout by the employer was
unlawful (Workplace Express, 2021h). Commenting on this ruling, ACTU President
Michele O’Neil emphasised that ‘it makes clear that companies cannot use lockouts as
a pre-emptive weapon to intimidate workers seeking a fair deal’ (Workplace Express,
2021h). The AMWU reported that it reached an in-principle agreement for wage
increases of at least 9.8% over 3 years (Workplace Express, 2021i).
Workers at McCormick Foods’ manufacturing site in Clayton, Victoria also found
themselves on indefinite strike in an attempt to force their employer to agree to pay
rises following the nominal expiry of their enterprise agreement in 2016. At issue in nego-
tiations were penalty rates, overtime and paid meal breaks, as well as a push for a wage
increase of 9% over 3 years (Workplace Express, 2021j). Meanwhile, workers at General
Mills in Rooty Hill, NSW, also took action for pay increases to keep up with the cost of
living. During the pandemic, it was reported that General Mills saw an operating profit
increase of 17%, however, such increases were not matched in the pay offer to
workers (Falzon, 2021). After 3 weeks on strike, workers secured a wage increase of
9% over 3 years without any trade-off in conditions.

International shipping
The country’s ports were affected by industrial action which interrupted supply chains in
an industry already in turmoil from pandemic-related disruptions. Members of the
Maritime Union of Australia (MUA) division of the CFMMEU in the Port of
Fremantle took part in a suite of industrial actions from July to mid-October as part of
enterprise bargaining negotiations with Qube Logistics. The dispute centred around the
notification of start times. The MUA argued that the current rostering arrangements
made it difficult for casual workers to plan their lives outside of work and that more
notice needed to be provided (Hudson and Hayes, 2021). However, the dispute ended
with limited progress. Ahead of Attorney General Michaelia Cash’s planned intention
to approach the FWC to terminate the industrial action due to concerns of economic
damage, a new workplace deal was reached, but with the company’s shift notifications
unchanged (Marin-Guzman, 2021g).
The MUA’s dispute with Patrick Terminals also saw industrial action involving mul-
tiple terminals, including Sydney and Fremantle. With bargaining for a new agreement
having gone on for 19 months (since February 2020) and some 12 months of industrial
action, an impasse was reached. The union was dissatisfied with Patrick’s ‘final’ pay offer
and also sought more control over manning levels and hiring of workers. The agreement
in place provided for MUA consent before the company hired new workers, but Patrick
was attempting to remove this requirement. In late September, the MUA escalated indus-
trial action and notified that workers would strike for 48 hours at Port Botany and com-
mence 12-hour stoppages 3 days a week at its Melbourne port amid a continued
bargaining stalemate (Marin-Guzman, 2021h). Patrick, claiming threats to the national
Gavin 371

economy with an ‘unrelenting barrage’ of stoppages and bans that were threatening
‘serious damage’ to the economy, applied to terminate the protected industrial action
(Hannan, 2021d). Agreement was reached in the FWC that both parties would resume
negotiations (Hannan, 2021e). A current Productivity Commission inquiry is examining
Australia’s maritime logistics system and issues contributing to supply chain disruptions.
While the inquiry is specifically focusing on long-term structural issues affecting product-
ivity and efficiency on the waterfront, part of it is also considering relevant workforce and
IR issues (Martin, 2021).

Union policy and strategy beyond collective bargaining

Unions also pursued a range of policy and legal matters around safety at work, wage theft
and insecure work, achieving breakthroughs for workers in the horticulture sector and
against corporate outsourcing. Several issues are likely to continue to be a focus for
unions in 2022, including addressing workplace sexual harassment and insecure work.

Safety at work
At the federal level, the ACTU has, for some years, been campaigning for legislative
change to address sexual harassment in workplaces and secure paid family and domestic
violence leave. Public pressure has been on the Federal Government to address workplace
sexual harassment, prompted by allegations of serious sexual misconduct in Parliament
House and stalling efforts to act on recommendations from the Australian Human Rights
Commission’s (AHRC) ‘Respect@Work’ report. In response, the Federal Government
released its ‘Roadmap to Respect’ and accompanying legislative reforms to address this
issue. The ACTU, however, criticised the government’s legislative reforms for not going
far enough to eliminate sexual violence and harassment at work (ACTU, 2021a). In particu-
lar, the peak union body was critical of the Federal Government’s failure to enshrine in
workplace law key recommendations from the AHRC’s report that would oblige employers
to prevent and eliminate sexual harassment at work.
The ACTU also renewed its campaign for paid family and domestic violence leave in
a submission to the FWC (ACTU, 2021b). The FWC’s 2021 review of family and
domestic violence leave terms in modern awards – which continues in 2022 – will con-
sider existing (unpaid) entitlements and whether provisions should be made for paid
family and domestic violence leave.

Wage theft and insecure work

‘Wage theft’ continued to be a focus for unions in 2021. A growing body of evidence by
unions and academics has observed widespread non-compliance in the Australian horti-
culture industry and problems with the piece rate system that pays workers according to
how much produce they pick (see Howe et al. 2019; Unions NSW, 2021). Following an
application by the Australian Workers’ Union to the FWC to amend the Horticulture
Award, the FWC ruled in favour of the union that the existing piece rate system was
372 Journal of Industrial Relations 64(3)

‘not fit for purpose’. Instead, farm workers should be entitled to minimum wage protec-
tions (Marin-Guzman, 2021i). Unions also pursued wage theft matters in other sectors,
such as tertiary education and financial services. The National Tertiary Education
Union continued to pursue its casual underpayment dispute, securing millions of dollars
in back pay for casual workers across universities (see NTEU, 2021). In late 2021, the
Finance Sector Union was also preparing a lawsuit against the National Australia Bank
against excessive unpaid overtime and workloads (Butler, 2021).
Nationally, the ACTU continued its campaign to address insecure work. Its submis-
sion to the Senate Select Committee on Job Security emphasised how the economic
downturn and more recent economic recovery was dominated by insecure work and
that legislative reforms failed to ensure more secure jobs (ACTU, 2021c). There was
some promise of reform with respect to labour hire, however. The Federal Opposition
in late 2021 introduced a private member’s bill which would ensure that workers
employed through labour hire would receive the same pay as workers directly employed
by the same employer (ACTU, 2021d).

Outsourcing
Before the courts, the TWU attempted to challenge a major corporate outsourcing exer-
cise undertaken by Qantas. The TWU argued that Qantas took advantage of the pandemic
to outsource all (mostly unionised) ground staff, despite being in receipt of JobKeeper, a
government programme designed to ensure businesses retained their employees (Forsyth,
2021). The union argued that the outsourcing decision breached the Fair Work Act
because the affected employees were targeted on the basis of their union membership
and were prevented from exercising their workplace rights, namely the right to organise
and engage in collective bargaining and take protected industrial action relating to
renegotiation of an enterprise agreement (Mitchell, 2021).
Qantas, however, argued that the timing of the outsourcing decision was primarily
motivated by the financial hit to the airline from the pandemic (Janda and Khadem,
2021). The Federal Court found in its ruling that Qantas was partly motivated by a
desire to avoid future IR disputes with the unionised workforce. Forsyth (2021) argued
that the decision represented an important and overdue check on decades of business out-
sourcing initiatives that have undermined workers’ job security and driven down wages.
While the court dismissed the TWU’s application for the sacked workers to be reinstated,
in late 2021, it was deliberating a fine for Qantas and the requirement to pay compensa-
tion to the workers (Patty, 2021).

Law, policy and the IR actors: COVID-19 response

Beyond ‘business-as-usual’ matters, the ongoing COVID-19 pandemic again tested rela-
tions between governments, employers and unions. The impact of the pandemic and the
widespread standstill of substantial parts of the economy have had an unprecedented
impact on businesses and jobs in Australia. Despite the Federal Government in early
2020 emphasising cooperation between the parties as necessary to navigate the
Gavin 373

challenges of the pandemic crisis, such cooperation was again limited in 2021 (Stanford,
2020). While the pandemic offered Australian unions an opportunity for greater input into
national policymaking and employment relations at industry and enterprise levels, this
‘seat at the table’ has not always secured desired outcomes for workers. Most elements
of the ‘IR Omnibus Bill’ also failed to pass, including a proposal to address wage stag-
nation caused by structural problems in the enterprise bargaining system (Stewart,
2021a). Limited cooperation by the parties also saw welfare support dwindle and conflict
and confusion ensue around the issue of vaccinations for workers.

The IR Omnibus Bill

Following ‘roundtable’ talks between government officials, employer groups and unions
that failed to establish meaningful consensus on IR reforms in response to the pandemic,
the Coalition subsequently introduced the Fair Work Amendment (Supporting Australia‘s
Jobs and Economic Recovery) Bill (‘IR Omnibus Bill’) into Federal Parliament in late
2020 (Hannan, 2021f). The Bill faced union opposition. ACTU Secretary Sally
McManus stated: ‘These laws will harm our economic recovery, they are a recipe for
keeping wages low and jobs insecure’ (ACTU, 2021e). Contested areas included a pro-
posal to suspend the ‘better off overall test’ for COVID-affected businesses and union
concerns around a proposal to criminalise certain deliberate instances of systemic under-
payment, although this was initially supported by unions in an effort to combat ‘wage
theft’ (Peetz, 2020).
Most of the Bill was withdrawn. Facing significant opposition in the Senate, of the five
elements of the Bill, only one reform area was passed – limited changes to the definition
of casual employment, where employment would be defined by contract as opposed to
relying on the subsequent actual conduct of the employment relationship. Such reform
was considered a move to reduce the liability of employers found to have misclassified
casuals and safeguard employers against ‘double dipping’ by casuals3 (Hannan,
2021f). The reforms also provided a mechanism for casual employees to convert to per-
manent employment in certain circumstances. Unions claimed victory in halting most of
the proposed reforms (although the government also withdrew some areas of the Bill sup-
ported by unions). However, unions criticised the changing definition of casual employ-
ment which they believed would fail to restrict the growth of insecure work and would
retrospectively remove the rights of misclassified workers to recover their entitlements
(ACTU, 2021e).

The vaccine rollout

Since 2020, there have been ongoing discussions between the IR parties on how to
manage the vaccine rollout to protect workers and livelihoods (Ferguson and Hannan,
2021). Confusion and criticism surrounded the capacity for employers to mandate vaccin-
ation to keep workers safe and their businesses running. Limited direction from the
Federal Government only added to this confusion such that early in the vaccine
rollout, some major employers began developing policies requiring vaccination of their
374 Journal of Industrial Relations 64(3)

workforces. Such policies were often met with union opposition. Fruit and vegetable pro-
cessing business SPC was the first employer nationwide to mandate vaccinations, spark-
ing criticism from the AMWU around the apparent lack of consultation with workers over
this decision (Cook et al. 2021). Other major corporations followed, including Qantas,
Telstra, Westpac and BHP, in a sign that mandatory vaccination was gaining more
acceptance across industries.
The trade union movement supported vaccinations, with most unions arguing that high
vaccination rates should be achieved through education and access, rather than employer
mandates (Tham, 2021). In a joint statement, the BCA and ACTU supported the fact that
vaccination may be necessary for some high-risk workplaces and where required through
public health orders, but otherwise argued that vaccination should be voluntary and
encouraged (Tham, 2021). With some success, the ACTU also lobbied the Federal
Government to provide paid vaccination leave and paid travel time for workers to
increase vaccination rates (Tham, 2021).
Meanwhile, employer groups, frustrated over the lack of clarity from the Federal
Government on employers’ rights or protections around encouraging or requiring vaccin-
ation, called for more national leadership (Cook et al. 2021). Some hope of cooperation
on this issue came with Minister Cash organising a meeting of employer groups, unions
and key regulators to discuss how to best support the vaccine rollout in workplaces
(Bonyhady, 2021). But the meeting produced limited outcomes. Employer groups criti-
cised the Federal Government for failing to address their concerns about the potential
legal consequences for businesses from the vaccine rollout (Hannan, 2021g).
The Federal Government maintained its position in ruling out mandating vaccines
across the board. Instead, the government held the view that vaccination would generally
be voluntary for Australians. It emphasised that requirements for vaccination could be
made through state/territory public health orders, but that employers and employees
should also work together in discussing the issue at a workplace level (Keating,
2021b). This reaffirmed position also prompted the Fair Work Ombudsman to update
its advice on mandatory vaccination, moving away from earlier guidance that employers
are ‘overwhelmingly’ unable to introduce mandatory vaccination policies, and making it
clear that employers had more scope to make vaccinations mandatory (Keating, 2021b).
This conflict between parties on the matter of (mandatory) vaccination sparked clashes
in some industries. While the building and construction industry essentially stayed ‘open’
during the pandemic, new restrictions were imposed in the industry in Victoria as it
became clear that COVID-safe rules were not being followed on some building sites
(Workplace Express, 2021k). While the CFMMEU opposed these changes, introduced
suddenly, some of the union’s members saw the union as complicit in the issue of man-
datory vaccinations for construction workers, sparking several large-scale violent protests
in the Melbourne CBD. This prompted the Victorian Government to impose a 2-week
snap shutdown of construction sites in metropolitan Melbourne. Union leaders remained
firm that most people who attended the protests were ‘professional protesters’ and far-
right activists, not union members (Workplace Express, 2021k).
The ability of employers to mandate vaccination was also tested before the FWC. In
mining, BHP had mandated vaccines for workers at its Mt Arthur coal mine in the Hunter
Gavin 375

Valley, despite no public health order being in place. The FWC subsequently ruled that
BHP had failed to adequately consult with workers about vaccinations, seemingly adding
to the confusion around this issue (Workplace Express, 2021l). Even within the tribunal,
controversy ensued around the issue during a Full Bench matter on mandatory vaccina-
tions (not the COVID-19 vaccine). Deputy President Lyndall Dean’s personal view that
vaccine mandates are a form of ‘medical apartheid’, as expressed in the decision, attracted
strong criticism from the NSW Supreme Court in a case that later attempted to rely on DP
Dean’s reasoning, and which also saw her temporarily excluded from full bench work and
directed to undertake further training (Marin-Guzman, 2021j).

Conclusion
In many ways, this review has shown unions having a limited ‘seat at the table’ in pol-
icymaking and bargaining within an IR system that is decentralising and disaggregating.
The erosion of the collective bargaining system has seen a continued decline in the
number of employees covered by union-negotiated collective agreements, and both
unions and employer groups are frustrated with the operation of the system, which has
also contributed to entrenching low wages growth. Initial hopes of government interven-
tion to reform the system were met by undelivered outcomes. More broadly, there con-
tinues to be frustration with stalling wages growth and eroding working conditions in
both the private and public sectors, which the pandemic has accelerated. However,
against this landscape, some major successes led by unions were achieved before the
courts and industrial tribunals for workers during the year. Despite the very small increase
in industrial disputes in 2021, it is likely that 2022 will continue to see a challenging bar-
gaining environment for workers and unions with the pandemic anticipated to further
impact economic and social activities. The Federal election in 2022 will also likely
bring attention to enduring issues in IR.

Acknowledgements
I would like to thank Prof. Susan McGrath-Champ for comments provided on an earlier version of
the article, as well as the comments provided by the two anonymous reviewers.

Declaration of conflicting interests

The author declared no potential conflicts of interest with respect to the research, authorship, and/or
publication of this article.

Funding
The author received no financial support for the research, authorship, and/or publication of this
article.

ORCID iD
Mihajla Gavin https://orcid.org/0000-0001-6796-5198
376 Journal of Industrial Relations 64(3)

Supplemental material
Supplemental material for this article is available online.

Notes
1. Keating (2021a) notes that between 2011 and 2019, the RBA persistently overestimated annual
wage growth by approximately 1%.
2. While some of Australia’s largest unions, predominantly but not exclusively in health and edu-
cation, saw an increase in their membership each year over 2019–2021 (e.g. Australian
Education Union, Australian Nursing and Midwifery Federation, Health Services Union),
other large unions experienced a slight decrease over the same period (e.g. AMWU,
CFMMEU). Other unions saw an increase in membership over 2019–2020 matched by a
decrease over 2020–2021 (e.g. Australian Services Union, Shop Distributive and Allied
Employees Association). Data on union membership, reported as of 31 December, was obtained
through the Annual Returns submitted by individual trade unions, which is made publicly avail-
able by the Registered Organisations Commission. These rates, however, do not account for
changes to the total number of employees in a given industry during these years of the pandemic,
which may affect the interpretation of union membership/density trends.
3. This position was reaffirmed by the High Court in late 2021 in the ‘Rossato’ case decision
[WorkPac Pty Ltd v Rossato [2021] HCA 23], where the court ruled that the primary consider-
ation in determining how to characterise an employment relationship is via the written contract.

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Biographical notes
Mihajla Gavin is Senior Lecturer at the University of Technology Sydney Business School. Her
research focuses on teachers’ conditions of work in public education, teacher union strategy, and
gender and employment relations.