In trying to outmanoeuvre a union in bargaining tactics, a company asked a multi-faceted question where a simple yes/no would probably have done the trick.
The union had earlier organised a petition of the workforce, gaining a slim majority of signatures in favour of bargaining. Armed with that result, the union applied for a majority support determination.
Before the union application came on for hearing, the company conducted toolbox talks about the award, union, enterprise bargaining and related matters. The FWC in its findings characterised these meetings as “one-sided”, meaning that in the FWC’s opinion, the obvious preference for the company to remain regulated by the award was the thrust of the toolbox talks.
Nevertheless, following these talks, the company conducted a compulsory ballot, asking the employees a three part question as follows:
- I do not wish to bargain … for a new enterprise agreement.
- I wish to bargain …. for a new enterprise agreement.
- I abstain from voting.
The results in the ballot were 30%, 38% and 31% respectively. That is, there was not a clear majority actively in support of bargaining.
It was the third leg of the question which ultimately undermined the company’s argument that the FWC should take from the ballot that a majority of employees did not want to bargain. The company argued the abstentions could be effectively added into the ‘do not want to bargain’ category. But obviously, this argument had no basis, as the opposite interpretation is equally available. And that’s how the FWC went.
The company may well have been too concerned to present a balance in the options available, where a straightforward question, given voting was compulsory, would have elicited the real mood of the workforce. The FWC discarded the employer’s ballot results because of the ‘third arm’, and accepted the earlier union petition results, issuing a majority support determination.
Two lessons arise from this case: one, employers need to make sure that accusations of bias or gilding the lily when making in-house presentations to staff can’t be made by presenting balanced information; and two, ask a simple question – do you want to bargain? Yes or No?