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What do you need to do?Review your practices in light of these recent developments.
Murray Kellock
Partner
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Sydney
Andrew Gray
Perth
Robert Lilburne
Canberra
Ian Johnson
Fair Work Australia has ordered an employer to schedule meetings with a union, finding that dealing directly with its employees breached good faith bargaining requirements.
The employer had been negotiating with its employees for an enterprise agreement since April 2009 and most of the content had been agreed prior to the commencement of the Fair Work Act 2009 (Cth) in July. Aside from one brief and informal meeting with the union, the employer continued bargaining directly with its employees in July and proposed a ballot to vote on the new agreement.
Fair Work Australia held that, by excluding the union from meetings and discussions with its employees, the employer breached the requirement in the Act to refrain from “capricious or unfair conduct that undermines freedom of association or collective bargaining” and the requirement to recognise and bargain with bargaining representatives.
ASU v Queensland Tertiary Admissions Centre Ltd [2009] FWA 53
Author
Murray Kellock, Partner
Fair Work Australia has held the obligation to bargain in good faith does not necessarily prevent parties from engaging in “tactical or strategic” industrial action.
In this case, the bargaining process for an agreement had been extended over a year due to the employer University’s complex funding environment. The union threatened to engage in industrial action. The employer argued seeking recourse to industrial action demonstrated the union was not prepared to bargain in good faith.
Fair Work Australia held good faith bargaining obligations do not remove the parties’ right to take (or threaten to take) industrial action to “concentrate and focus the attention of the negotiating parties”. In finding the union had not breached its obligations, the tribunal also noted the union had met with the employer on several occasions as part of the bargaining process and had conducted itself reasonably in those meetings.
NTEU v University of Queensland [2009] FWA 90
Author
Sean Selleck, Special Counsel
An employer has been ordered to cease a ballot for an enterprise agreement and meet with the union four times over a two week period, after Fair Work Australia found it had breached its good faith bargaining obligations.
Fair Work Australia held the employer failed to participate in meetings, because it was unwilling to discuss matters the union wished to discuss. It failed to provide relevant information because it did not reveal to the union the employer’s position on their draft agreement. Further, the employer gave no reasons for rejecting certain proposals made by the union, and failed to directly respond to their log of claims and draft agreement.
Finally, the employer circulated an agreement to its employees without telling the union and without giving them a reasonable time to propose amendments. This amounted to “unfair conduct undermining freedom of association and collective bargaining”.
NUW v Defries Industries Pty Ltd [2009] FWA 68
Author
David Glasgow, Solicitor
Fair Work Australia has issued recommendations to an employer and a union engaged in bargaining to assist them comply with their good faith bargaining obligations.
The detailed recommendations suggested that:
- the employer provide a consolidated proposal to the bargaining representatives
- the parties meet on particular dates
- the employer allow the bargaining representatives 10 days to consider any offers and put any counter offers
- the employer not bypass the bargaining representatives by contacting employees directly in relation to the proposed agreement (such as by text messages, telephone calls or in meetings), and
- the union adjourn their pending application to Fair Work Australia for protected action orders.
Recommendation - AMWU v Transfield (Australia) Pty Ltd [2009] FWA 93
Author
Kathleen Kelly, Solicitor