Test case on good faith bargaining could force changes for Fair Work regime

The first major battle between unions and employer groups since the introduction of the Rudd Government’s new Fair Work industrial relations regime is set to kick off – over the controversial issue of good faith bargaining.

The Australian Industry Group has been given leave by Fair Work Australia to intervene in a case between the Construction, Forestry, Mining and Energy Union and Australian Precast Solution and Abigroup Contractors.

Earlier this month, the CMFEU applied for a “bargaining order” from the industrial umpire, Fair Work Australia, seeking to delay a vote on a new industrial agreement between the companies and employees. The union argued the company was trying to rush through an agreement for a specific site under agreement and not properly negotiate with the union.

Fair Work Australia handed down a bargaining order blocking the vote on 5 August. The new industrial umpire has recently handed down three bargaining orders delaying enterprise agreement votes, including a decision late last month to stop a vote at Queensland Tertiary Admissions Centre Limited.

But the AIG argues that unions are using the good faith bargaining provision in the Fair Work laws to block legitimate deals between employers and workers.

“Bargaining orders must not be allowed to stop employees exercising their democratic right to approve proposed enterprise agreements,” Australian Industry Group chief executive Heather Ridout says.

“Unions have substantial rights but they should not be permitted to obtain a bargaining order to frustrate the rights of employers and employees to enter into agreements of their choosing.”

AIG’s submission in the case argues that the Fair Work Act “prevents FWA making an order which prevents or delays the approval of a proposed enterprise agreement by employees”.

“If FWA had the power, and adopted the practice, of issuing a Bargaining Order whenever a union raised allegations that the good faith bargaining requirements have not been met, the bargaining system could soon become unworkable,” the submission says.

The fact AIG has been granted leave to intervene in this specific case means it is will become a test case on the vexed issue of good faith bargaining.

Ridout says that if the AIG is not successful in arguments it will push for amendments to the Fair Work Act.

“If FWA is empowered to issue a bargaining order preventing or delaying a vote of employees to approve an agreement, any union with even one member would be able to assert that the good faith bargaining requirements have not been met and then apply for an order preventing a ballot.”