Time for Talking Over

When an employer put its best and final offer to a vote without union support, it was not in breach of good faith bargaining requirements according to a senior Fair Work Commission member. Negotiations for a replacement agreement had commenced nearly a year earlier, with 13 bargaining meetings and 14 drafts of the agreement.

The union argued that the company was not bargaining in good faith because the company had not given the union the opportunity to engage with the employer over various issues and that it had failed to agree to postpone the ballot. But the company refused to accept this position, advising the union that its position was in fact its final offer.

The union filed an application in the FWC alleging a breach of the good faith bargaining provisions, but the FWC did not agree with the union’s arguments.  In particular, the FWC said that the company had gone to some lengths to explain to the union representatives its business case for refusing some of the claims and for proposing its own way forward.

Further, FWC found the employer had made it clear at the last meeting held that what was on offer was the final position and the parties agreed that “the negotiations may be closed out in writing rather than through a further meeting”.

The FWC accepted that there remained a significant gap between the company and the union which would be unlikely to be narrowed by further talks ordered by the FWC.

The decision makes clear that there is nothing inherently wrong with an employer drawing a line in the sand on negotiations. So long as the employer has genuinely participated to that point, if it can make no more concessions, then it is entitled to put the deal, as it is, to a vote. The law does not compel parties to keep bargaining until they reach agreement, and FWC orders aimed at achieving that end cannot be made.

Construction, Forestry, Mining and Energy Union-Mining and Energy Division Queensland District Branch v WorkPac Pty Ltd [2017] FWC 1995 (7 April 2017)