Driving a hard bargain and protected action ballots

Analysis

Driving a hard bargain and protected action ballots

A recent decision of the Fair Work Commission (National Tertiary Education Union v the University of Western Sydney) makes it clear that applications for a protected action ballot order will not fail because of aggressive or ‘hard bargaining’ tactics.

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A recent decision of the Fair Work Commission (National Tertiary Education Union v the University of Western Sydney (UWS)) makes it clear that applications for a protected action ballot order will not fail because of aggressive or ‘hard bargaining’ tactics.
 
An order will still be granted, as long as the union can demonstrate it has been ‘genuinely trying to reach agreement’. The Fair Work Commission (FWC) will examine all circumstances surrounding the negotiations to date, in order to test whether there has been an intention by a party to genuinely try to reach an agreement. This consideration is separate from the ‘good faith bargaining requirements’.
 
What does this mean for your business?
 
Employers facing aggressive or hardline bargaining tactics in the course of their negotiations with a union often reach an impasse in negotiations. A union that is dissatisfied with the speed or progress of such negotiations can lodge an application under s437 of the Fair Work Act 2009, seeking the FWC’s approval that employees undertake a secret ballot to approve the taking of protected industrial action. Employers facing the prospect of a protected action ballot application need to carefully consider whether the application should be resisted, and the grounds they will rely upon to demonstrate that the union has not been genuinely trying to reach an agreement.

An employer can oppose a protected action ballot application, but such objection will only be successful if the FWC finds that the union has not been ‘genuinely trying to reach agreement’ with the employer. In the recent decision of National Tertiary Education Union v the University of Western Sydney [2013] FWC 4613, Vice President Catanzariti made clear that the words of ‘genuinely trying to reach agreement’ should not be confused with the requirements of ‘good faith bargaining’.
 
In considering the required test, Vice President Catanzariti relied on the Full Bench’s reasoning in Total Marine Services v MUA [2009] FWAFB 368. The Vice President neatly summarised the approach that is undertaken by making clear that the test involves the Commission examining a party’s conduct, past and present in all relevant circumstances surrounding the negotiations, in order to determine whether the union’s intentions are consistent with an applicant that is ‘genuinely trying to reach an agreement’.

In the case in question, Vice President Catanzariti found that the union had attended a substantial number of bargaining meetings, provided a log of claims, drafted clauses and responded to the UWS’s draft clauses. As such, the Vice President was satisfied that the union had been genuinely trying to reach an agreement and the protected action ballot order was granted.

The order was granted even though the union’s actions in requiring that the employer withdraw its ‘major items’ from the bargaining process could be viewed as aggressive or ‘hard bargaining’. However, such demands were not uncommon or inappropriate. The Vice President found that this conduct did not detract from a finding that the union was authentic in its willingness to bargain with the employer when the unions intentions and actions in the entire bargaining process had been examined.
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