Ballot Delayed by Good Faith Bargaining Orders

CPSU, the Community and Public Sector Union v Victoria Legal Aid [2013] FWC 1441 (7 March 2013)

Sometimes negotiations for an enterprise agreement get tough but trying to short-circuit matters can backfire. An employer has been ordered to halt a proposed ballot until further discussions take place with bargaining representatives, in this case a union.

The trouble really started late last year when the negotiations hit an impasse. The employer made some offers in negotiations but these were not accepted. Then in early 2013, the employer made an attempt to conduct a ballot of employees on the proposed agreement, with one significant catch – this was a different proposal to that put to the representatives previously.

It appears that aspect of the employer’s behaviour was the deciding factor. The very nub of good faith bargaining is that properly authorised bargaining representatives deal honestly and openly which each other. It is likely that the FWC did not consider offering two different sets of wages and conditions, one to the unions and the other directly to the employees, was consistent with those views of good faith bargaining.

This tactic is not new and has been used sometimes to undermine union influence in workplaces. There is no evidence that the employer had that mind in this matter, it appears to have been acting out of frustration. However FWC decided that the employer should not ballot the employees until it met with the union and responded to it in relation to its latest position.

There is nothing wrong with an employer deciding ‘enough is enough’ and organising a vote, but when authorised representatives have not been responded to fully, or the employer has made separate offers to different sets of people about the same agreement, FWC will and does step in.