Good faith bargaining, or sharp practices?
A full bench of the Fair Work Commission has found an employer may have adopted “sharp practices” in dealing with an enterprise agreement, but in doing so, did not fall foul of the law’s good faith bargaining requirements.
The employer had been negotiating an agreement with the employees and the union was clearly running a ‘no’ campaign against the employer’s position. So much was self-evident from a failed first ballot. Not to be put off, the employer offered a sign-on bonus as part of a second ballot, as well as making the point that two out of three “employee elected representatives” endorsed the agreement. It worked, and the vote got up.
It was this latter comment about committee support which the union complained of, alleging it was misleading and suggestive that the whole bargaining group, which included the union, was in favour of the agreement. This, the union argued, was bad faith bargaining.
But the company argued the words were plain and did not say the union supported the agreement, and in any event, the union’s opposition was very well known by the workforce. Besides, bargaining was over, it was now time for voting.
The FWC agreed, saying that while the letter sailed close to the wind it did not tell an untruth and the employer had not acted to undermine good faith bargaining principles. Importantly, the FWC on appeal made the point that the union is no shrinking violet, and was more than capable of “robustly” communicating its position to the employees.
This appeal decision is valuable because it supports the view that once bargaining is over, and the time has come to put up or shut up, the tactics that parties use are not subject to the same rigours of good faith bargaining. Where a union (and a well-resourced, capable one at that) is running interference, employers have every right to strike back. This employer did, and won the day.
faith bargaining, or sharp practices?
A full bench of the Fair Work Commission has found an employer may have adopted “sharp practices” in dealing with an enterprise agreement, but in doing so, did not fall foul of the law’s good faith bargaining requirements.
The employer had been negotiating an agreement with the employees and the union was clearly running a ‘no’ campaign against the employer’s position. So much was self-evident from a failed first ballot. Not to be put off, the employer offered a sign-on bonus as part of a second ballot, as well as making the point that two out of three “employee elected representatives” endorsed the agreement. It worked, and the vote got up.
It was this latter comment about committee support which the union complained of, alleging it was misleading and suggestive that the whole bargaining group, which included the union, was in favour of the agreement. This, the union argued, was bad faith bargaining.
But the company argued the words were plain and did not say the union supported the agreement, and in any event, the union’s opposition was very well known by the workforce. Besides, bargaining was over, it was now time for voting.
The FWC agreed, saying that while the letter sailed close to the wind it did not tell an untruth and the employer had not acted to undermine good faith bargaining principles. Importantly, the FWC on appeal made the point that the union is no shrinking violet, and was more than capable of “robustly” communicating its position to the employees.
This appeal decision is valuable because it supports the view that once bargaining is over, and the time has come to put up or shut up, the tactics that parties use are not subject to the same rigours of good faith bargaining. Where a union (and a well-resourced, capable one at that) is running interference, employers have every right to strike back. This employer did, and won the day.