Seven years of experience with the Workplace Relations Act 1996 (the Act) have helped to clarify the circumstances under which unions can initiate “protected action” during a bargaining period and the tactics employers can use to counter this action, said Bruce Moore, a partner in the Melbourne office of Mallesons Stephen Jaques.
Mr Moore was speaking at a conference of the Australian Higher Education Industrial Association in Melbourne today (4 April).
Mr Moore said, if a union wishes to seek an agreement at the enterprise level it can give notice of a bargaining period. The effect of a valid notice of initiation of a bargaining period, and a valid intention to take industrial action, is that the industrial action will be a “protected action” and therefore not subject to legal action by the employer.
During the bargaining period, the Australian Industrial Relations Commission does not have the power to arbitrate, but it can conciliate. Employers, too, can take lock-out action to advance their claims or as a response to the industrial action.
Terminating bargaining periods
Unions must observe some key requirements before taking industrial action: amongst other things, they must “genuinely” try to reach agreement with the employer; and they must comply with any order made by the Commission.
The Commission can terminate a bargaining period in other cases as well - for example, if it decides that the industrial action might endanger life or welfare of a part of the population, or the economy.
The Genuine Bargaining Act amendments to the Act, which operate from February 2003, have thrown fresh attention on the basis for suspending or terminating bargaining periods, analysed in the Campaign 2000 case.
The Campaign 2000 case found that an attempt to achieve standardised outcomes across a number of employers in an industry (sometimes called “pattern bargaining”) might not constitute “genuine” attempts to reach agreement. In an extensive judgment, Justice Munro found that “advancement of such claims in a way that denies individual negotiating parties opportunity to concede, or to modify by agreement, cannot satisfy the test established by the Act…The party bargaining about such ‘common claims’ must be genuinely trying to reach agreement with the other negotiating party”.
In the ANP cases, decided in March 2003, a Full Bench of the Commission, in commenting on the principles to be applied:
- noted that a negotiating party, such as a union, is at risk of having its bargaining period terminated if it does not “genuinely try” to reach agreement with the specific employer;
- issued a caution about employers seeking orders to prevent industrial action (if that action is likely to be protected action), rather than seeking to suspend or terminate the bargaining period.
Mr Moore said that when the Commission has terminated a bargaining period, it has an immediate obligation to use its conciliation powers.
However, if conciliation fails and the Commission is satisfied that the negotiating parties have not settled the matters that were at issue during the bargaining period, and that it is not likely that further conciliation will result in the matter being settled in a reasonable time, the Commission must exercise arbitration powers to make an award. The arbitration powers of the Commission may only be exercised by a Full Bench. In such a situation, the arbitration powers of the Commission are limited to matters that were in issue during the bargaining period but, importantly, they are not limited to “allowable award matters”.
Mr Moore cautioned that “the attraction of the certainty to be obtained from an agreed position (even if this is less than ideal) can be preferable to pursuing an arbitration whose outcome can be difficult to predict”.
Mr Moore concluded that both employers and unions face complex issues during negotiations and that “there can be substantial difficulties in achieving mutually satisfactory negotiated outcomes…for this reason, it is very important that both parties to a negotiation should identify their objectives clearly before they commence negotiations and that they should keep these in mind throughout the negotiations”.