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Collective Bargaining Under the Trade Practices Act
Unions representing independent contractors

2008 Background Information

Independent Contractors of Australia maintains that independent contractors are not and must not be subjected to industrial relations laws. Consequently, they are not subject to the authority of unions under industrial relations laws or any other procedures that produce a similar outcome.

In 2007, the Howard Government made amendments to the Trade Practices Act which created a process whereby small businesses and independent contractors could apply to the Australian Competition and Consumer Commission for approval under the TPA to bargain collectively. It's primarily designed, for example, to allow small businesses to get together and bargain collectively for better prices when purchasing stock. Such a process potentially gives small business the ability to better compete against large business, assists competition and lowers consumer prices.

There has been considerable political debate over whether unions can act as a bargaining agent for small businesses and independent contractors in an ACCC-authorized collective bargaining process. In late August 2008, the Chairman of the ACCC wrote to the Minister for Small Business, Independent Contractors and the Service Economy clarifying the role of unions under the TPA. Click here for a copy of the letter.

In summary, the letter says that
  • A union cannot lodge an application. Applications must be made by the individuals seeking approval.
  • A union can assist in the preparation and lodgement of an application.
  • A union can be a bargaining agent for the individuals approved by the ACCC.
ICA has been quoted in the press as not having any concerns about unions representing independent contractors in these (TPA) circumstances as long as there is no coercion of contractors to use a union as a bargaining agent. It is and must be a matter of free choice by independent contractors as to who (if anyone) they choose to use as a bargaining agent under the TPA.

Further, the collective bargaining provisions of the TPA must not be used to create de facto industrial relations-type arrangements that are then imposed on independent contractors, business in general or consumers. The ACCC will need to take great care with its approval processes in this regard.