First Fair Work Australia decision on good faith bargaining forces employer to meet with union

Australia’s new industrial relations umpire, Fair Work Australia, has made its first decision on the controversial issue of good faith bargaining, with FWA telling an employer it must engage with a union representing its staff members.

The decision, handed down on 29 July, came after the Australian Municipal, Administrative, Clerical and Services Union (ASU) asked FWA for an urgent ordering preventing Queensland Tertiary Admissions Centre Limited from holding a ballot of employees to approve a new enterprise agreement.

According to the decision handed down by FWA senior deputy president Richards, QTAC began negotiating directly with staff on a new agreement in April. While a proposed agreement was prepared by 30 June, it was modified and a final offer was presented on 22 July.

But Richards said the employer had known back in April that the ASU had an interest in the agreement process and served a log of claims on QTAC on 6 May. But it appears that the ASU didn’t follow up this log of claims.

“Neither party appears to have taken any subsequent action to initiate any meetings, though the ASU claimed it understood that QTAC would invite it to meetings,” Richards said in his decision. A brief and informal meeting was held on 7 July between the employer and the ASU but “other than that the bargaining process unfolded between QTAC and its employees directly”.

Given the final agreement was not prepared until 22 July, QTAC’a agreement comes under the new Fair Work act.

“In my view, it is apparent that QTAC excluded the ASU from meetings and discussions about the proposed enterprise agreement at a time when the agreement content was not fixed or immutable.” Richards said that by so doing, QTAC contravened the Fair Work Act.

He ordered QTAC to abandon its ballot and meet with the ASU four times over the next two weeks.

Industrial relations expert Peter Vitale, principal of CCI Lawyers says that while it is important to understand the issue urgently and there was not a full range of evidence before FWA, the decision appears to be a win for the union.

“On the facts as they’re available to us it seems that union has been successful in making up for its own laziness through Fair Work Australia.”

He says that while the employer appears to have been trying to be a “bit cute” by getting its agreement through after 1 July without talking to the union, the ASU has been lucky given that it failed to follow up its log of claims.

“It just seems that this was a situation where the ASU fell asleep at the wheel and in a sense they’ve been able to take advantage of that fact.”

Vitale also says the case demonstrates how effectively unions are now empowered to engage in the bargaining process and suggests that employers dealing with unions on agreements should realise that the process is going to be a lot more drawn out than in the past.

“There’s no question that the substance of all this is that’s it’s likely to slow the process down.”