Enterprise Agreements Part 4: Good Faith Bargaining

Good Faith Bargaining - IR Simplified
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This is part 3 in the series on enterprise agreements.

You can find the lead post in the series here.

In the previous article, Enterprise Agreements – Negotiations, I talked about the process of negotiating an enterprise agreement.

This article goes into a bit more detail on the good faith bargaining part of enterprise agreement negotiations.

This article goes into more detail on what good faith bargaining is.

Legislation

The Fair Work Act 2009, does specify some requirements that must be met, for the bargaining agents to be bargaining in good faith.

228 Bargaining representatives must meet the good faith bargaining requirements

(1) The following are the good faith bargaining requirements that a bargaining representative for a proposed enterprise agreement must meet:

(a) attending, and participating in, meetings at reasonable times;
(b) disclosing relevant information (other than confidential or commercially sensitive information) in a timely manner;
(c) responding to proposals made by other bargaining representatives for the agreement in a timely manner;
(d) giving genuine consideration to the proposals of other bargaining representatives for the agreement, and giving reasons for the bargaining representative’s responses to those proposals;
(e) refraining from capricious or unfair conduct that undermines freedom of association or collective bargaining;
(f) recognising and bargaining with the other bargaining representatives for the agreement.

Before you get into a panic thinking that this means you have to agree with every proposal put before you, s228(2) comes to your rescue.

(2) The good faith bargaining requirements do not require:

(a) a bargaining representative to make concessions during bargaining for the agreement; or
(b) a bargaining representative to reach agreement on the terms that are to be included in the agreement.

What Does This Mean?

What this really means is that if you, as the company bargaining rep, are presented with demands/requests during negotiations, you don’t have to agree to them.

This means that the next time you hear a CEO, ‘expert’ or whoever complaining about an unworkable enterprise agreement, they agreed to it of their own free will.

The company reps could go to the meeting(s) and say no to everything the employee reps put on the table. As long as they met the requirements of a – f above, they would be bargaining in good faith.

How Does This Work In The Real World?

For those of us who live in the real world, what it means is that if your business isn’t able to, or you are not willing to accept proposals put forward, you don’t have to agree to them.

How you do that is up to you, though you should make sure that s228(1) a-f are followed.

Will this lead to a protected action ballot?

You are the only one who can answer that.

Keeping in mind that it will depend on the level of engagement within your company, how much trust there is, and if there is any outside agitation.

How Do You Say No?

The way that you say no to proposals is up to you.

Though when you do, the very next thing I would be doing would be sending out a company newsletter to your employees letting them know why.

Because the last thing that you want to happen are the employee reps to agitate your employees to the point of them wanting to take protected industrial action.

To find out more about enterprise agreements, and how you can simplify your industrial relations challenges, join the IR Simplified mailing list below

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