Collective bargaining and low-paid women workers: The promise of supported bargaining

This paper assesses the promise of the supported bargaining (SB) stream of multi-employer bargaining to address persistently low wages in feminised industries. Introduced in 2022 amendments to Australia's Fair Work Act 2009 (Cth), the SB stream replaces the failed low-paid bargaining stream which also sought to widen access to collective bargaining for low-paid workers. We outline the substantive changes introduced by the SB stream: in the contexts of the historical failure of enterprise bargaining to achieve wage increases for women workers; and of gender equality reforms introduced in the 2022 amendments. In assessing the SB stream's potential, we highlight the less restrictive criteria for inclusion and a more active role for the Fair Work Commission in approving and facilitating multi-employer bargaining. We conclude that the continuing primacy of single-enterprise bargaining in the Fair Work Act, the restriction of SB to multi-employer rather than sector-wide bargaining, and the weakness of underpinning awards will limit the effectiveness of SB in achieving meaningful pay increases in feminised sectors. However, the 2022 gender equality reforms offer other potential mechanisms to address low wages in feminised industries, both in wage-setting in annual minimum wage reviews and in award variations through equal remuneration or work value claims.


Introduction
Soon after the Australian Labor Party was elected in May 2022, the new government introduced industrial relations reforms to address wage stagnation and the ongoing decline of collective bargaining (Burke, 2022).Australia's system of single-enterprise bargaining under the Fair Work Act 2009 (Cth) (FW Act) was seen to have failed low-paid workers, in particular those in female-dominated industries (Massola and Thomson, 2022).This failure was marked by a low and declining take-up of enterprise bargaining and, where it occurred, by meagre if any improvements in pay and entitlements above the 'safety net' of award minima and the statutory National Employment Standards (NES) (Charlesworth and Smith, 2018;Macdonald et al., 2018). 1 Further, the multi-employer bargaining option expressly for low-paid workersthe low-paid bargaining stream (LPB stream)had not led to one multi-employer agreement since the establishment of the FW Act in 2009.
In this paper, we outline the rationale for, and the provisions of, the supported bargaining stream (SB stream) introduced in the 2022 amendments to the FW Act via the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (the Fair Work Amendment Act).We assess the prospects for the new SB stream provisions to deliver timely wage increases for low-paid workers in feminised industries, within the context of broader gender equality reforms that were also introduced as part of the Fair Work Amendment Act.Following an overview of those reforms, we set out the background to our analysis.We briefly outline how the effective lack of access to enterprise bargaining by low-paid women has been treated in Australia's industrial relations system and then describe the 2022 SB reforms.
The SB stream 'is intended to assist those employees and employers who may have difficulty bargaining at the single-enterprise level' (Parliament of Australia, 2022: 159).In our view, this falls short of what is needed to assist bargaining for fair outcomes for low-paid employees.From its inception, the FW Act was designed to put collective bargaining at the enterprise level at the heart of the industrial relations system (Forsyth, 2009: 139), with awards and the NES providing a safety net function (Murray and Owens, 2009).The 2022 industrial relations reforms did not change the basic principle that bargaining remains primarily at the single-enterprise level (Redford, 2022).Adherence to this principle underlies the limited potential we see for the new SB stream.

Fair Work Act gender equality reforms
The new SB stream was designed to address many of the flaws in the LPB stream, and its interpretation by the Fair Work Commission (FWC; the Commission).While it was among several reforms made to collective bargaining, the SB stream can also be seen as part of a suite of gender equality reforms designed to make the industrial relations system more functional for women workers.A key 2022 reform was the insertion of 'promoting gender equality' into the objects of the FW Act (s 3(a)) alongside the promotion of job security.What constitutes 'promoting gender equality' is not defined in the FW Act.However, the explanatory memorandum for the Fair Work Amendment Bill makes clear it should be central to the Commission's decision-making.The new object is intended to be consistent with international gender equality conventions to reflect the policy objectives of both formal and substantive equality (Parliament of Australia, 2022: 61).These objectives thus place emphasis not only on equality of opportunity but also on equality of outcomes.The FW Act's Modern Award Objective (s 134(1)) and the Minimum Wage Objective (s 284(1)) were also amended to include the need to achieve gender equality in the workplace by ensuring equal remuneration (ER) for work of equal or comparable value, eliminating gender-based undervaluation of work and providing workplace conditions that facilitate women's full economic participation. 2 Previously, in exercising its minimum wage fixing powers the Commission had to take into account 'equal remuneration for work for equal value', along with the other considerations which remain in the FW Act.The Commission is now required to take these additional factors into account in exercising its powers in relation to modern awards and the setting of minimum wages.The innovative focus on the achievement of gender equality in the Commission's considerations in relation both to award wages and the national minimum wage promises much for women workers, especially those in low-paid sectors.
Other 2022 gender equality reforms to the FW Act include significant changes to the ER provisions (s 302) and the work value provisions (s 157(2B)) that, among other things, aim to address the current barriers preventing the Commission from effectively tackling gender-based undervaluation of work (DEWR, 2023a: 1).The reforms also introduce two new expert panels in the Commission: a Pay Equity Panel, which will hear pay equity and work value matters, and a Care and Community Services Panel, which will 'hear wage-related matters and help address low wages and challenging workplace conditions faced in the community services sector' (DEWR, 2023b: 1).These panels are intended to ensure the Commission has 'the expertise it needs to better assess pay and conditions for people working in the Care and Community Sector and other women workers' (Parliament of Australia, 2022: 67).Where a pay equity or a work value matter in the care and community services sector is at issue a combined Pay Equity and Care and Community Sector panel will hear the matter.

The problems for women workers
It is widely accepted that the collapse of collective bargaining has been a central factor contributing to wage stagnation in Australia over the past decade (DEWR, 2022).However, in some low-paid and feminised sectors, Australia's system of single-enterprise bargaining has never functioned as an effective mechanism for workers to obtain wage raises.Concerns about how women would fare were first raised when enterprise-based bargaining was introduced in the early 1990s (Bennett, 1994;Charlesworth, 1997).It was noted by the Fair Work Commission's predecessor, the Australian Industrial Relations Commission, that '… enterprise bargainingespecially bargaining for overaward paymentsplaces at a relative disadvantage those sections of the labour force where women predominate' (1991: 40 cited by Charlesworth, 1997: 101).Subsequent reforms over the 1990s placed increasing reliance on enterprise bargaining, reduced the role of sector-wide industrial awards to a safety net of minimum standards, and restricted unions' capacity to organise.By the 2000s, there was considerable evidence attesting to the exclusion of many low-paid employees and women from collective bargaining (Macdonald et al., 2018: 208-210).
Award reliance has grown from around 15% of employees in 2010 to 23% in 2021.Over the same period enterprise agreement coverage had declined markedly, from 43% to 35% of employees (DEWR, 2022: 3).On average, employees covered by an enterprise agreement earn 71% more than employees covered by a modern award (DEWR, 2022).However, feminised industries have high rates of award reliance, with reliance greatest in accommodation and food services, administration and support services, other services, health care and social assistance, and retail.Almost three in five (58.1%) of all modern award-reliant employees are female, while fewer than half (48.5%) of employees not reliant on awards are female (Yuen and Tomlinson, 2023: 14, 18).
The 2009 FW Act introduced the LPB stream of multi-employer bargaining to assist low-paid employees and their employers to overcome some of the constraints on their capacity to bargain at the single-enterprise level.On application from employers or employee bargaining representatives, the Commission was required to make an authorisation for the parties to bargain under the LPB stream if it judged the employees to be low-paid and was satisfied that the public interest supported the making of an authorisation.The Commission was empowered to call for compulsory conferences and make orders for the parties to bargain in good faith.In addition, arbitration was possible under this stream, while it was not possible under other bargaining arrangements.The Commission was also able to make a low-paid workplace determination where parties were unable to reach an agreement, meaning that reluctant employers could be made to engage in bargaining.Under the LPB stream, the Commission could direct third partiessuch as head contractors or government funders who may effectively set the employees' pay and conditionsto participate in conferences where this was considered necessary for an agreement to be made.However, industrial action was not permitted, limiting low-paid workers' ability to apply any pressure on employers to achieve satisfactory outcomes (Cooper, 2014;Macdonald et al., 2018).
The LPB stream was a complete failure as not a single agreement was achieved.Over more than a decade of the FW Act, only five applications were made for an LPB authorisation.Just onemade by United Voice (now the United Workers Union (UWU)) for residential aged care workerswas partly approved by the FWC but did not ultimately result in an agreement being made (Macdonald et al., 2018).After the FWC excluded almost half of the employers named in the Union application for an LPB authorisation, subsequent negotiations between the Union and the remaining employers failed to achieve any outcome (Macdonald et al., 2018: 215-216).The Commission took a very narrow view of eligibility for inclusion in the bargaining authorisation.Some employees were considered not to fit the criterion of historically not having had 'access to the benefits of collective bargaining', despite seeing few benefits from their single-enterprise agreements, including being paid wages that were at or barely above the level of the award (Macdonald et al., 2018).In the Aged Care Case, the Commission's exclusion of employees 'to whom an enterprise agreement applies' also included employees covered by pre-FW Act or 'zombie' agreements that remained in place past their nominal expiry dates (Aged Care Case, 2011: 20, 38), that may have contained poorer provisions than in the award.
Other applications made by unions for authorisations to bargain in the LPB stream failed.FW Commissioners, conservatively and somewhat inconsistently, assessed that employees were not low-paid or that unions had not demonstrated employees had been unable to bargain at the single-enterprise level.This is even though the employees in question were paid comparatively low wages and/or were members of exactly those groups identified in the original rationale for the LPB stream (as workers who should be able to benefit from this provision).

SB: the promise
The 2022 Fair Work Amendment Act included several changes to Australia's system of collective bargaining.Changes to provide greater access to multi-employer bargaining were primarily via amendments to two existing options for multi-employer bargaining under the FW Act, the LPB stream and the single-interest enterprise bargaining stream.
Minor changes were made to the LPB stream and it was renamed the SB stream.The expressed aim of the SB stream is to: assist those employees and employers who may have difficulty bargaining at the singleenterprise level.For example, those in low paid industries such as aged care, disability care, and early childhood education and care who may lack the necessary skills, resources and power to bargain effectively.The supported bargaining stream will also assist employees and employers who may face barriers to bargaining, such as employees with a disability and First Nations employees.(Parliament of Australia, 2022: 160) The SB stream is intended 'to be easier to access' than the LPB stream and the 'revised criteria for making a supported bargaining authorisation is intended to address the limited take-up of the low-paid bargaining process' (Parliament of Australia, 2022: 160).The criteria for entry to the stream have been eased with employees no longer excluded on the basis they had been previously covered by an enterprise agreement.Employees will also have access to protected industrial action.There is a new provision for the extension of an SB multi-employer agreement to other employers and employees, subject to certain criteria being met.This provision may have the potential to enable more widespread bargaining across a sector in certain cases.
Changes to the 'single-interest' bargaining stream also open up another option for multi-employer bargaining to a wider range of enterprises with 'common interests'.Previously the single-interest bargaining stream was limited to a narrow group of employers, including related corporations and franchisees under a single franchising arrangement.There was strong opposition by major business groups to the single-interest bargaining stream changes on the grounds that they would, in the words of the Business Council of Australia (BCA) see 'businesses being dragged into multi-employer agreements and out of single enterprise bargaining' (Workplace Express, 2022).The new SB stream was far less contested by employers.Indeed, the BCA expressed its strong support for the SB stream, as the current system was 'not delivering for workers in low-paid sectors' (Senate Committee, 2022: 44).Unions generally supported the extension of multi-employer bargaining, while expressing concerns about continuing restrictions and exclusions (Workplace Express, 2022).

The SB process
The former LPB stream process remains largely in place in the new SB stream.To access the stream, a union or a bargaining representative must apply for an SB authorisation.If the Commission makes an authorisation, bargaining can commence for a multi-employer agreement.Under the amendments the Commission must make an SB authorisation if it is satisfied it is appropriate for the relevant employers and employees to bargain together when considering (s 243(1)): (i) the prevailing pay and conditions within the relevant industry or sector (including whether low rates of pay prevail in the industry or sector); (ii) whether the employers have clearly identifiable common interests; (iii) whether the likely number of bargaining representatives is manageable; and (iv) any other matters the Commission considers appropriate.
Examples of common interests include geographical location, the nature of the enterprises to which the agreement will relate, the terms and conditions of employment in those enterprises; and being substantially funded, directly or indirectly, by the Commonwealth, a State or a Territory (s 243(2)).An employee organisation must be involved in both the application for an SB authorisation and in the subsequent bargaining process.
Under the amended FW Act, the Minister for Industrial Relations can declare that employees in a specific industry, occupation or sector can apply for an SB authorisation.In this case, the Commission is not required to consider the factors set out above and must make an authorisation if the application has been made.It is not yet clear under what circumstances the Minister might declare employees in particular industries, occupations or sectors can make such an application.
The SB provisions contain several improvements on the previous LPB process.There is no longer a requirement for the Commission to determine if employees are 'low paid' and what constitutes 'low pay.'As outlined above, under the LPB stream, the Commission adopted a narrow interpretation of these matters.However, as the National Foundation of Australian Women (NFAW) suggests, much will 'ultimately depend on the approach taken by the FWC in applying the criteria for access to the SB stream, which had historically been so conservative that no agreements could ever be made' (NFAW, 2022: 10).
Whatever approach is taken by the Commission, there continue to be some significant restrictions on the making of SB authorisations.One key constraint is the exclusion of employees who are already covered by a single-enterprise agreement that has not passed its nominal expiry date.The only situation in which employees covered by a current single-enterprise agreement can be included in an SB authorisation is where the Commission is satisfied that the employer's main intention in making that agreement was to avoid being specified in an SB authorisation (s 24A(3)).This constraint is, however, less limited than that under the LPB stream as noted above and would exclude zombie agreements.Zombie agreements can be extended by the Commission if the employees are better off under the agreement.However, typically after an agreement has ceased to operate, employee minimum pay and conditions are set by the relevant award.In relation to other enterprise agreements past their nominal expiry date, under another 2022 Amendment to the FW Act, the Commission must terminate the agreement following an application to do so, if satisfied that its continued operation would be unfair to the employees covered by it (s 226(1)).This means an application for an SB authorisation can be made where an enterprise agreement is in place but has passed its nominal expiry date.However, given the Minister for Industrial Relations, Tony Burke, has stated the policy intent behind the SB stream and other changes to bargaining in the Fair Work amendments is to 'get wages moving' (Burke, 2022), the failure to provide for an authorisation to be made that could then come into effect immediately after the relevant single-enterprise agreement(s) nominal expiry date, arguably works as a constraint on the pace of bargaining (Redford, 2022).
After the granting of an SB authorisation, the 2022 Fair Work amendments strengthen the role of the Commission in the bargaining process.The Commission now has the power to arbitrate where it is satisfied there is no reasonable prospect of agreement.Where the parties are unable to reach an agreement, the Commission can make a binding workplace determination via a new intractable bargaining declaration process (s 235).Protected industrial action is also now permitted, although there are 'safeguards' with requirements for mandatory conciliation by the Commission and notice of 120 h before commencing action (s 14(2)(a)).
As with the earlier LPB stream, the Commission is also able to provide assistance to the parties on its own initiative and, under s 246 (3), may (our emphasis) direct a relevant third party to attend a conference if satisfied that the person exercises such a degree of control over the terms and conditions of the employees who will be covered by the agreement that the participation of the person in bargaining is necessary for the agreement to be made.
The provision for bringing a government funder or lead employer into the bargaining process remains weak, however, as directing a relevant third party to attend a conference is left to the discretion of the Commission.Most commentary thus far has been on the potential under the SB stream for the Commission to bring government funders in the care economy to the bargaining table, where the requisite degree of control over the terms and conditions of employees may be more easily established than for employees in supply chains such as in retail or horticulture.While it has been argued that bringing the government to the bargaining table may provide 'the opportunity for truly tripartite discussions in funded sectors' (Ward, 2023), having a government funder at a conference may not deliver on the potential for such discussion to lead to better wages and conditions.One of the peak aged care employer bodies, Aged and Community Care Providers Association (ACCPA), argued in its submission to the Senate Committee considering the reforms that 'there is no evidence to suggest that the use of these powers by the Commission would have any impact in funding for individual aged care employers' (2022: 9).In any event, arguably the time to bring in relevant third parties should be at the stage of seeking an SB authorisation.It may well prove fruitless for the parties to achieve an authorisation, either by consent or via a determination of the Commission, if the relevant third party is not prepared or unable to provide resources to enable improvements on award minima in an SB agreement.
Once an SB agreement is made and approved, it can later be varied to cover additional employers and their employees, subject to specific conditions.There are two avenues that can be followed in seeking an extension of SB agreements.Firstly, by consent, the parties can make an application to include additional employers and their employees (s 216A).Unless there are 'serious public interest grounds' for not approving the variation sought, the Commission must do so where it is approved by a majority of the affected employees of the new employer(s) (s 216AB).The second route is for unions to apply to add additional employers and their employees to an existing SB agreement (s 216B).The Commission must approve this variation where it is satisfied that a majority of the employees to be covered by the variation want to be covered and it is 'appropriate' for them to be covered.The Commission must take into account other considerations for making SB authorisations, such as whether the new employers have clearly identifiable common interests.This non-consent route to adding new employers and employees to an existing SB agreement will arguably be the most contentious aspect of SB.Much will depend, as suggested by the NFAW, on the approach taken by the Commission to its role in making such variations.

The potential of the SB stream in the care economy
The SB stream could cover a variety of low-paid employees and sectors.However, in discussions about the reform and its potential to improve wages for low-paid workers, the focus has been almost exclusively on the aged care, early childhood education and care (ECEC) and disability support sectors, where wages are substantially reliant on federal government funding.For example, the Senate Committee inquiring into the Fair Work Amendment proposals stated: … this reform is vital to improve pay outcomes for the lowest paid workers in Australia, including those individuals working across the aged care, disability care, and childhood education and care sectorssectors with large percentages of women workers.(Senate Committee, 2022: 57) The potential of the SB stream in these sectors is limited by the federal government funding for the care and support services employers provide. 3Constrained funding has historically put a downward pressure on wages and has limited the discretion service providers have to pay higher wages.However, government funding does not entirely determine wage outcomes.Provider practices also play a role in constraining wages.For example, while National Disability Insurance Scheme (NDIS) prices (and government funding) provide for disability support employees to be paid at particular pay rates in the Social, Community, Home Care and Disability Services Award (SCHCDS Award), employees are often paid less (Macdonald and Douglas, 2022).Further, in all three care sectors, some for-profit providers continue to make large profits (see Considine, 2023), which do not appear to flow onto improved wages.
The new SB stream has not been universally accepted by employer groups in the care sectors.Some groups have expressed concern about how individual service providers might meet the particular needs of both their employees and their service users in the context of limited government funding.In its submission to the Senate Committee, the ACCPA argued that: …the ability for individual providers to tailor enterprise agreements to the needs of their clients and residents, as well as their workforce, may be taken away from them by being forced into inappropriate multi-enterprise bargaining.For providers in an industry that operates in an extremely constrained funding environment, this will inhibit their ability to provide the best care possible to the older Australians in their care.(ACCPA, 2022: np) In a similar vein, the peak disability services provider body, National Disability Services (NDS) raised concerns about its members being drawn into multi-enterprise bargaining with other employers that are not subject to the same funding constraints and service requirements.The NDS argued that, while NDIS providers experience the constraints of fixed funding, they also have an obligation to respect the decisions and wishes of scheme participants, so must balance the needs of their employees with the wishes of their 'customers' (NDS, 2022: 4).Not only are the care sectors dependent on government funding in respect of wages, but employers also often frame their obligation to meet the needs of individual service recipients as a constraint on their capacity to improve working conditions more generally.This is particularly the case in sectors where funding is tied and/or paid directly to individual 'consumers', such as in the NDIS and the aged care Home Care Packages Program.
In a submission on the proposed reforms, Goodstart Early Learning, the largest not-for-profit ECEC provider in Australia, argued that in considering whether to grant an SB authorisation, the Commission should be required to have regard to 'whether it is appropriate for employers with different business models (e.g.for-profit or not-for-profit), wages and conditions (e.g.paying above award or at award) and bargaining histories to bargain together' (Goodstart, 2022: 7).Goodstart advocated for the continuance of single-enterprise bargaining in its own case, while recognising the benefits of SB for employers without an enterprise agreement, suggesting: If the Government decide to fund a wage increase, then multi-employer agreements could provide an effective mechanism to articulate and enforce higher wages for employers in the sector currently without an enterprise agreement and their employees.(Goodstart, 2022: 6) This comment points to one of the key difficulties in bargaining in publicly funded sectors.It is unlikely that the government would simply decide to fund wage increases without first being brought to the table as part of a multi-employer bargaining conference convened by the Commission after it has given authorisation for SB to occur.Even at that stage, there is no guarantee that bargained wage improvements would be facilitated or agreed to by a government funder.

The prospects
Prior to the passing of the Fair Work Amendment Act, Forsyth and McCrystal suggested that the SB stream 'may operate to exclude workers who have been able to engage in single-enterprise bargaining under the FW Actbut would like to be able to obtain even better outcomes through multi-employer bargaining ' (2022: 15).They proposed that this hurdle could be addressed by adding the need to facilitate access to SB to provide workers the opportunity to improve wages and working conditions to the list of considerations relevant to the granting of an SB authorisation.We suggest a further two amendments are needed to the new provisions to achieve fairer and better outcomes than in single-enterprise bargaining.First, applications could be made and granted for SB authorisations where relevant single-enterprise agreements have not yet reached their nominal expiry date, with bargaining authorised to start as soon as such agreements reach this date.Second, in sectors where a third party exercises a strong degree of control over the terms and conditions of the relevant employees, this party should be engaged in the SB authorisation process.
In the care sectors, enterprise bargaining has had limited reach and, where it has occurred, has rarely achieved meaningful wage increases In respect of home care employees covered by the SCHCDS Award, current non-union enterprise agreements provide little or no above-award wage premiums.For example, the non-union NNA Homecare Pty Ltd Enterprise Agreement August 2020 provides only for award rates of pay.Most current union enterprise agreements provide only small above-award wage premiums.For example, the St Vincent's Care Services Enterprise Agreement 2020-2022 provides between 28 cents and $1.37 per hour above the award minimum for home care employees at levels 1 to 3. In the Calvary Home Care Services Limited Support Worker and Administrative and Operational Employees (Tasmania) Enterprise Agreement 2021 home care employees at levels 1 to 3 are entitled to between 22 cents to 77 cents per hour above award rates.We note that these agreements are still current for up to three years and employees covered by them would not be able to access SB until their nominal expiry dates.In the disability services sector, a 2021 'financial benchmarking' survey of NDIS providers found that 59.5% of disability workers were paid at award rates.Of the 113 employers surveyed who had an enterprise agreement, more than half (62 providers) had an agreement with a nominal expiry date before 2020 (NDIA, 2021: Appendix C).This suggests that unions could apply for an SB authorisation in respect of all or some of those employers.
The first union to test the potential of the SB stream to bring government funders to the table and achieve an increase in wages is the UWU.The Union had sought a 25% pay increase for ECEC educators in its 2023 pre-budget submission.However, no provision was made in the 2023 federal budget and the Union then signalled it would bring a multiemployer bargaining claim seeking a 25% pay increase (Karp, 2023).The FWC will hear the UWU's application for an SB authorisation involving 65 ECEC employers and their 12,0000 employees in August 2023 (Workplace Express, 2023a).The UWU claim for an SB authorisation in the ECEC sector has a long history.The Union (then United Voice) had made a claim for increased wages for ECEC educators in 2013 via the FW Act's ER provisions.After five years, the Union ultimately lost this case with the Commission's decision to reject their ER claim (for details see Smith and Whitehouse, 2020).The ER provisions have been significantly recast by the Fair Work Amendment Act to eliminate some of the impediments encountered in the ECEC case, including the imposition by the Commission of a requirement for a male comparator (Macdonald et al., 2018: 224-225).However, running such cases is extremely resource intensive, as UWU has experienced in both the ECEC case and the ongoing Aged Care Work Value case, 4  which may constrain unions with limited resources in pursuing ER, work value or even SB claims.
Even if the UWU's or another union's application for an SB authorisation in one of the care sectors were successful, it could be some time before any wage increases won via bargaining could be realised, with limited impact on wages and conditions across the sector.A more significant limit on the potential of SB to get 'wages moving' in the care economy, is that any wage increases in a new SB agreement would apply only to the group of employees covered by that agreement, rather than all the employees covered by the underpinning sector award.
Where the SB process leads to a multi-employer agreement, its terms and conditions will be highly dependent on the underpinning award, which in most feminised sectors has low minimum wages with compressed classification structures (Charlesworth and Smith, 2018).So how might awards be made more robust, both to provide decent minima for all employees in a particular low-paid feminised sector and as a basis for multi-employer bargaining in the SB stream?In the care economy, the Care and Community Services Panel will be expected to deal with award matters in the broad care sector and will be required to take account of the need to achieve gender equality in considering the care sector modern award matters that come before it as outlined above.However, while the Panel is able to make a determination making, revoking or varying a modern award (s 157(1)(a)), 'that the President considers might relate to the Care and Community Sector' (Fair Work Commission, 2023a: 1), it is not empowered to vary minimum award wages.Thus, outside the SB stream the main direct avenue to increasing wages for all employees covered by a care sector award may be via a work value case or an ER case that would be now heard by a combined Pay Equity and Care and Community Services Panel.Changes to award wages in feminised sectors might also be achieved through future annual minimum wage processes, given the Commission's new obligation to consider achieving gender equality in minimum wagesetting as outlined above.This potential was recently flagged by Commission President Hatcher in the recent 2023 National Minimum Wage case decision (Workplace Express, 2023b).

Concluding comments
For low-paid feminised sectors, the renovated SB stream is an improvement on its predecessor, the LPB stream, in several respects.It opens up multi-employer bargaining to a broader group of employees as the Commission is no longer required to determine what or who constitutes 'low-paid'.It also provides a more active role for the Commission with powers to arbitrate and make binding workplace determinations in the bargaining process.While multi-employer rather than sector-wide bargaining, the SB stream also provides an opportunity to extend existing SB agreements to cover additional employers and their employees, subject to specific conditions, either by consent between the parties or, where new employers do not consent, where a majority of their employees support the variation.The minister is also able to declare that employees in a specific industry, occupation or sector can apply for an SB authorisation, which suggests that if there were an impasse in the authorisation process the minister may be able to expedite that process.
There are also several limits to the SB stream as we have highlighted, which are particularly relevant to the care sectors, where the critical shortage of workers is due in no small part to low pay coupled with the lack of career opportunities (see Work+Family Policy Roundtable, 2023).The policy and political focus has been on the role of the SB stream to get 'wages moving' in low-paid feminised sectors, especially in the care economy.In these sectors, however, where enterprise bargaining has occurred there have been generally minimal above award wage increases.This is due to the historically lower bargaining power in feminised sectors which, in the case of the care economy, is coupled with historical restrictions on sector funding.
One of the most important limits to improving wages in the care sectors through the SB stream is the inherent delays before an application for an SB authorisation can be made; for example, where enterprise agreements that have not reached their nominal expiry dates as is the case for all three of the home care single-enterprise agreements outlined above.Another is the role of the government funder.While ideally third parties such as the federal government would be engaged in the authorisation process, even where they are only brought into the bargaining process after an authorisation has been approved, concerns about 'funding sustainability' and cost constraints in funding the burgeoning care economy may work to dampen prospects of meaningful above award wage outcomes.This latter factor is why urgent attention needs to be paid to award wages in low-paid feminised sectors more generally.There is some cause for optimism in this respect, not least because of the gender equality changes in the 2022 reforms including in respect of the minimum wage objective.In its 2023 National Minimum Wage decision, the Minimum Wage Panel made clear that resolving gender equality issues for award-reliant workers is now firmly on the Commission's agenda (Workplace Express, 2023b).In particular, the Panel decision recognised that There may be a systemic problem, of pre FW Act origins, concerning the way in which modern award minimum wages in female-dominated industries have been set which involves gender undervaluation and unequal remuneration for work of equal or comparable value.(Fair Work Commission, 2023b: 133) This explicit recognition of the historically gendered undervaluation of wages in feminised sectors suggests the Commission may now be more proactive in addressing it more directly and comprehensively than possible through multi-employer bargaining in the SB stream.

Declaration of conflicting interests
The authors declared no potential conflicts of interest with respect to the research, authorship, and/ or publication of this article.non-direct care employees, the final quantum of any wage increase, and skills and classification structures in the relevant awards.