Business as usual during bargaining

Just because an employer is bargaining with a union or employees doesn’t mean changes to the business affecting employees can’t be made. Many organisations assume that once negotiations for an agreement start, especially where good faith bargaining orders are contemplated, that nothing in the workplace can change, that changes would undermine the bargaining process.

Not so according to Fair Work Australia (FWA) in a matter involving Woodside Energy at its Karratha Gas Plant. The AWU argued that Woodside had undermined bargaining by changing critical fly in-fly out rosters while bargaining was underway. This was particularly so as this very issue was on the AWU’s list for bargaining.

Woodside countered that it had started talking to employees and managers about the rosters sometime earlier. In any event Woodside said, good faith bargaining did not include a requirement “that an employer’s business should be put on hold while negotiations take place, no more than there is a requirement that the enjoyment of the benefits of employment by employees should be put on hold during negotiations”. FWA agreed and dismissed the AWU application.

It is important to appreciate that the changes made were on foot before the negotiations commenced and they were not instituted by Woodside unilaterally as a means to undermine the AWU or the negotiations. Even so, changes made during bargaining must be found to be deliberately and unilaterally brought about by the employer with the purpose and affect of undermining the negotiations, before the employer could be said to be not bargaining in good faith.

The Australian Workers’ Union v Woodside Energy Limited [2012] FWA 4332 (30 MAY 2012)