The Aussie version of Good Faith Bargaining

The Fair Work sceptics warned of Australia developing good faith bargaining laws akin to the US. They warned that it would be a complex process where employers could no longer speak to their employees during the negotiation of an enterprise agreement.

They were heartened by the early discussion of SDP Drake in AFMEPKIU v Transfield [2009] FWA 93, where SDP Drake made bargaining orders preventing the employer contacting its employees while the union proposal was considered.

The tide has never been set so high again.

The whole purpose of the Fair Work Act 2009 is to allow employers, employees and their union to battle it out and reach an agreement.

This has been underlined by a series of robust decisions by Commissioner Whelan, which have stamped a very Australian flavour on the Good Faith Bargaining provisions. The Commission relied squarely on the black letter law and was not distracted by the argy-bargy of tough negotiation.

SDP Richards in the Queensland Nurse’s Union v The Corporation of the Roman Catholic Diocese of Toowoomba [2009] FWA 1553 also reinforced the primacy of the plain words of the Statue. The die was cast.

The subsequent case of CFMEU v Tahmoor [2010] FWA 942 reinforced Fair Work Australia’s (FWA) reluctance to permit a bargaining order – FWA took a very literal approach to the Act.

FWA contains numerous commissioners and presidential members who have participated in the IR theatre – Australia style.

It should come as no surprise to the Fair Work sceptics that Commissioner Cloghan in LHMU v Hall & Prior Aged Care Organisation and Others [2010] FWA 1065 – spoke so strongly to permit:

• The employer to meet directly with its employees;
• For both sides – “taking and putting your own (best) perspective on information circulated, is a normal dimension to negotiation and I find nothing illegitimate in such a tactic”.

For businesses and practitioners alike, the most recent decision is heart warming.

When you bargain you can:

1. Speak to your employees at any time.
2. Tell them what you think about the union’s offer in strong language so long as it does not misrepresent the truth.
3. Check your employees to see what leverage you are getting.
4. Send letters home explaining your position and criticising the union position. Again, as long as it is not misrepresenting the position.
5. Hold out in negotiations and stand firm so long as there is a reasonable basis to do it.
6. As an employer – progress your own log of claims.

But remember:

1. Always agree at the beginning what conduct is acceptable and what is not – put it in writing.
2. Cost what you want and what the union ask for so you know what you are bargaining for.
3. Try and close out the bargaining quickly. The longer it goes on the more the union agenda comes into the negotiations and your business and employee concerns are lost.

Andrew Douglas is the Managing Director of Douglas LPT, an integrated legal, HR, recruiting and training business. He is the Editor-in-Chief of the loose leaf publication, The OHS Handbook, and writes on workplace law issues such as Industrial Relations, Employment law, OHS, Equal Opportunity, Privacy, Surveillance and Workers Compensation. He is the principal of the legal division of Douglas LPT and appears in courts, tribunals and Commissions throughout Australia.