Surface bargaining won’t work

When an employer refuses to bargain with a union or employees and just says “no”, Fair Work Australia (FWA) will force the issue. A FWA full bench has made clear in a recent decision that an employer must not engage in the practice known as “surface bargaining”. This is a tactic, as its name suggests, of engaging with the union but with no real commitment to make an agreement. It is sometimes called “sham bargaining”.

In this case, the employees had participated in a ballot and decided they wanted to have an agreement with their employer. This was an important consideration for FWA which said this:

“Where a majority support determination is made, there is an expectation that the employer will recognise the wishes of its employees to bargain collectively for an agreement, and enter into negotiations in an
endeavour to reach an agreement. Where this does not happen, a bargaining order may be sought to ensure that the obligation to bargain is fulfilled.”

FWA went on to say that “(t)he Company participated in the bargaining process but did not make any substantive contribution to the possible content of an enterprise agreement or put proposals of its own.” This led FWA to conclude the company wasn’t bargaining in good faith and issued bargaining orders.

The decision also made it clear that employers can be made to produce information about the business to unions and also, that an employer cannot unilaterally improve or otherwise change employees’ employment conditions in the middle of bargaining. Such behaviour, FWA said, was contrary to good faith bargaining.