Employers need to be careful of engaging in funny business with employee bargaining representatives
The AMWU sought bargaining orders against the Graham Group and an employee representative, alleging that the Graham Group had failed to attend and participate in meetings at reasonable times, failed to respond properly to proposals in a timely manner and in relation to the negotiation and application for approval of an enterprise agreement* with one of the four entities comprising the Graham Group (which had only 6 employees). The AMWU also alleged one of the employee bargaining representatives had breached the good faith bargaining requirements at a meeting of employees by offering inducements to employees to refrain from involvement in union activities.
FAW (Commissioner Ryan) found that the employee bargaining representative had engaged in unfair conduct that undermined freedom of association or collective bargaining, although FWA did not accept the allegations made by the union in relation to the offer of inducements to employees to refrain from dealing with the union. FWA found that the bargaining representative was acting on behalf of the employer when he sought to influence employees to deal individually (rather than collectively) with the employer.
FWA also found that in refusing to meet with the AMWU until it had put in place steps to initiate bargaining for four separate enterprise agreements, the Graham Group was acting in breach of its good faith bargaining requirements in relation to the AMWU. FWA commented that the good faith bargaining requirements apply separately in relation to each bargaining representative – so that to comply with those requirements in relation to one bargaining representative does not mean compliance with the same requirements in relation to another bargaining representative. FWA contrasted the delay in meeting with the AMWU with the speed of negotiations for a non-union agreement with 6 of the employers’ employees in the meantime to support a conclusion that the employer’s conduct in dealing with the AMWU was not reasonable.
FWA accepted arguments that the employer’s failure to respond to the AMWU’s proposed bargaining guidelines and protocols within a 14 day period was a failure to respond in a timely manner, contrary to the good faith bargaining requirements.
Finally, FWA did not accept the AMWU complaint that the making of a non-union enterprise agreement in the midst of attempts by the AMWU to negotiate an agreement covering the broader Graham Group was capricious or unfair conduct. FWA noted that the employer was entitled to pursue its own agenda and in this case, ‘beat the AMWU to the punch’. However, FWA went on to find that in failing to notify the AMWU that it was going to make the agreement, it demonstrated ‘deliberate non-disclosure’ of relevant information in a timely manner, in breach of the good faith bargaining requirements.
Having found that the Graham Group had not complied with the good faith bargaining requirements, FWA found that bargaining orders should be made. Relying on earlier authorities to the effect that FWA should be ‘slow to interfere in the legitimate tactics undertaken by parties during the bargaining process’, FWA noted that caution should be exercised in the making of bargaining orders, which needed to compel compliance with the good faith bargaining requirements without impeding the efficient and fair conduct of bargaining or placing undue restrictions on the use of legitimate tactics by parties in the context of good faith bargaining. FWA further expressed the view that the making of bargaining orders itself was a mechanism to encourage compliance with the good faith bargaining requirements.
The bargaining orders:
- Required Graham Group to give employees a notice on the Graham Group letterhead including statements that the notice of employee representational rights contained wrong or misleading information about the appointment of bargaining representatives (the finding of FWA that the notice of representational rights did not comply with the Fair Work Act is currently under appeal)
- Requiring Graham Group not to discuss the right to choose (or choice) of bargaining representatives with its employees
- Setting a timetable for making of proposals and responses and for meetings, with liberty to apply for supplementary orders if no agreement on a timetable is reached.
*The application for approval of the agreement was dismissed by Ryan C on the basis that it did not comply with the pre-approval steps, and is currently under appeal to a Full Bench.