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Genuinely trying to reach agreement requires more than “preparatory” steps

A Full Bench of Fair Work Australia has rejected a union’s application for a protected action ballot order, finding the union had only taken “preparatory” steps in its negotiations with the employer and was not genuinely trying to reach an agreement.

The union commenced negotiations with the employer in April 2009. The parties had held three meetings and corresponded through emails. In July 2009, the union applied for a protected action ballot order to authorise the taking of industrial action. To obtain the order, it was necessary to show the union was genuinely trying to reach an agreement.

In considering this issue, the tribunal held it was not appropriate to establish rigid rules to determine the point negotiations need to reach before a secret ballot order can be made. However, an applicant would normally need to have articulated the major items it wanted in the agreement and have provided considered responses to demands made by the other side. In this case, the union had merely engaged in “preparatory” steps to developing an agreement, including limited face-to-face meetings and limited articulation of many claims. Importantly, the wage claim had not been specified. Accordingly, the union was not genuinely trying to reach agreement and the application for a protected action ballot order was rejected.

The Full Bench also noted that while it is appropriate to consider whether an applicant for a secret ballot order has been meeting its good faith bargaining obligations, the concepts of “generally trying to reach agreement” and “good faith bargaining” are not the same.

Total Marine Services Pty Ltd v Maritime Union of Australia [2009] FWAFB 368

Sean Selleck, Special Counsel

Who does this affect?
All Australian employers

What do you need to do?
Review your practices in light of these recent developments



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