Bargaining in a Vacuum? An Examination of the Proposed Class Exemption for Collective Bargaining for Small Businesses

Abstract

The Australian Competition and Consumer Commission (‘ACCC’) is on the cusp of introducing a class exemption for collective bargaining for small businesses. This development is not just novel in the context of Australian competition law, it is important in terms of addressing entrenched imbalances of bargaining power in business-to-business transactions. By surveying the recent legislative history relating to collective bargaining in the commercial context, we show that the class exemption fills critical gaps in the ACCC’s existing authorisation and notification processes. The article outlines key features of the proposed class exemption. Drawing on labour and industrial relations theories, the article then critically examines the class exemption through a series of dimensions, including the status, agent, level, scope and coverage of bargaining. This analysis reveals that the failure to formalise the bargaining processes and outcomes, the emphasis on voluntarism and the absence of any right to take collective boycotts, will not only lead to uncertainty, it will ultimately limit the overall effectiveness of collective bargaining in this forum.