When a major union continued to pursue demands about restrictions on the use of contractors, it effectively ceased to bargain in good faith, the Fair Work Commission has found. This meant the FWC could not grant the union members a protected action ballot.
The controversial claim being pursued was centred on imposing restrictions on the employer using contractors or labour hire. While there is no finite list of non-permitted matters it has long been held that claims which do not directly concern the employer-employee relationship are not permitted. Any ‘third party’ claim is prima facie in the category of non-permitted.
The employer had argued this to the union but to no avail. And when the matter came before the FWC the union was defiant in its pursuit of the claim, prompting the commission to note that the union took a “calculated risk” in pressing on with non-permissible matters in the hope that nevertheless the commission would find in its favour.
This case demonstrates that where an employer successfully argues that a claim isn’t within the scope of employer-employee relations, and hence falls into the non-permissible category, then the commission can make a finding that the claimants are not bargaining in good faith. There are then important consequences of such a finding starting with the refusal of the commission to assist the claimants by permitting the protected action ballot.