Workforce Conference - Park Hyatt

Good Faith Bargaining

Stuart Wood, Henry Skene, Chris Gardnerwww.stuartwood.com.au

hskene@abl.com.au

chris.gardner@freehills.com

22nd September 2009

Good Faith Bargaining

Good Faith Bargaining

Part 1: Stuart WoodPart 1: Stuart Wood The key sectionThe key section International will be relevantInternational will be relevant

Part 2: Henry SkenePart 2: Henry Skene Context and ControlContext and Control

Part 3: Chris GardnerPart 3: Chris Gardner Negotiating TacticsNegotiating Tactics

Part 2

Henry Skene – Partner,

Arnold Bloch Leibler

Context and Control

Good Faith Bargaining

GFB in contextGFB in context

Shift in leverage: lower employer Shift in leverage: lower employer controlcontrol

Good Faith Bargaining in Context

Shifting the balance - engagement situations:

• Entering the workplace

• Deciding who to negotiate with

• Participating in negotiations

• Exchanging information

• Deciding the scope of any agreement

• Making an agreement

• Deciding the parties to an agreement

• Consulting about change Shift in

control

Key Lesson:

Good Faith Bargaining in Context

Eligible member One member FWA

Majority of employees

MSO

Scope Order

GFBRight of Entry

Default Status

Industrial Action

Agreement reached

Bargaining breaks down

FWA

Secret ballot

Majority of employees and

employer

FWA

Good Faith Bargaining in Context

Key areas of change:

• Increased union access to workplaces

• Expanded obligations to consult and provide information

• Increased union and employee control in bargaining

• Expanded capacity for compulsory arbitration

• Expanded adverse action grounds

Shift in leverage

GFB in action:

• Justification of position: request for information

• No bypass of bargaining representatives

• Other unilateral options reduced

Justification and information

Fair Work Act 2009: s228

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

agreement must meet:

….

(b)  disclosing relevant information (other than confidential or commercially sensitive information) 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;…

Justification and information

Justification and information

No Bypass

Fair Work Act 2009: s228

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

      (f)  recognising and bargaining with the other bargaining

representatives for the agreement.

No Bypass

“The employers in this case appear to have been under the misapprehension that they could be both bargaining with the union, through their bargaining representative and seeking to make an agreement as they described it ‘directly with their employees’ on the other.”

“In my view, where the employer is aware that there are employees who are union members and the union is therefore their bargaining representative, it would be a breach of good faith bargaining to put an agreement to a vote without notifying the union of its intention to do so.”

Commissioner Whelan, 17 September 2009, Applications to approve Alphington Aged Care Employee Enterprise Agreement 2009-2012 and Sisters of St Joseph Health Care Services (Vic) Employee Enterprise Agreement 2009-2012 under section 185 of Fair Work Act 2009 (Cth)

No Bypass

April – July 2009: QTAC seeks to negotiate agreement with its employees. Bulk of proposed agreement content present at 30 June 2009, but continuing discussions re introduction of RDO

6 May 2009: ASU serves log on claims on QTAC re proposed agreement

7 July 2009: Brief ad hoc meeting between QTAC and ASU

22 July 2009: final agreement offer communicated by QTAC to employees

“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. By so doing, QTAC contravened s. 228(1)(e) of the Act…”

Richards SDP, ASU v QTAC, 29 July 2009

Other measures…

Fair Work Act 2009: s228

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

…

(e)  refraining from capricious or unfair conduct that undermines freedom of association or collective bargaining;

…

Other Measures

“Unfair or capricious” conduct?

Unilateral increases

Restructure of operations

Replacement labour

Strike preparationsReview existing bargaining strategies

Good Faith Bargaining