Genuinely trying even if no response to employer

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Genuinely trying even if no response to employer

The FWA has ruled that failure by unions to respond to a revised offer by an employer did not breach the Fair Work legislation on ‘genuinely trying to reach an agreement’.

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The FWA has ruled that failure by unions to respond to a revised offer by an employer did not breach the Fair Work legislation on ‘genuinely trying to reach an agreement’.
 
The failure by two unions was to respond to an employer's revised wages offer made 48 hours before their secret ballot application was listed. The FWA also noted that the new bargaining provisions did not require unions to disclose the full content of the agreement they were pursuing.
 
Senior Deputy Richards answered three questions on good faith bargaining posed by employer group Ai Group in relation to the AMWU’s and AWU's secret ballot applications for industrial action at Rocla Pipeline Products.
 
The questions
 
Senior Deputy Richards listed and answered three questions:
Question (i): should an application for a protected action ballot order under s.437 of the Act be “a last resort”, such that an application should not be granted if it is “premature”?
 
… In the ordinary circumstances it would be a matter of some surprise if an application under section 437 of the Act were a first resort and, in most instances, it is a course of action of some later resort but not a first resort …
 
In the first instance, what is an appropriate time period over which discussions ought to take place? …
 
… In this case it appears to be common ground between the parties that over the course of the last six weeks there have been five meetings held and that the meetings have been productive, constructive and have resulted in concessions. It would appear to me that in such circumstances, whilst it is always to be hoped ideally that industrial action would not be a course of action that would be resorted to lightly, that … is a different proposition to whether or not an application can be made for a protected action ballot …. [I therefore do not agree that the applications before me are “premature” in the sense argued by AIG.]”
 
Question (ii) is an applicant for a protected action ballot order under s.437 of the Act required to disclose the entirety of its agreement agenda and desired content before it can meet the requirements of the good faith bargaining provisions (s.228 of the Act) and otherwise satisfy the precondition that it has and is genuinely trying to reach agreement?
 
… It will always be a matter of fact and circumstance as to whether or not the parties have provided sufficient information and have put their positions clearly so that the bargaining process can be conducted in a reasonable and on an informed basis. It would, of course, raise issues of genuineness in respect of whether or not a party is genuinely trying to reach agreement and […] its effort is directed genuinely towards that goal, if the employer or the employee had not disclosed any element of its agreement or else had disclosed only partial elements of agreement which were not sufficient to generate the basis of an in principle agreement or else to found a basis for further consequential agreement …
 
As the parties here would well realise, the content of an agreement is a matter that is often, but not always, but is often a matter of development and evolution over the course of the bargaining cycle …
 
As a consequence, therefore, I am not able in this current position to reach a finding on what is before me that there has been inadequate disclosure of the applicant unions’ respective bargaining positions by way of adequate disclosure of the content that they seek for the purposes of the inclusion in their agreement …
 
Question (iii): should the failure by an applicant for a protected action ballot order under s.437 of the Act to respond to an amended offer put to it 48 hours prior to the application (under s.437 of the Act) being made tell against the applicant’s genuineness in trying to reach an agreement (for purposes of s.443(1)(b) of the Act)?
 
It arises, finally, as to whether or not a recent offer put to the applicant unions […] ought to give me cause for concern or doubt as to whether or not the respective unions are acting in either good faith, that is, in respect of section 228(1)(c) of the Act, that is responding to proposals made by the other bargaining representatives for the agreement in a timely manner, and (d) thereof, giving genuine consideration of the proposals of the bargaining representatives of the agreement and for giving reasons for the bargaining representatives' response to those proposals ….
 
… if the time period had been different, if the wages offer had occurred a week ago perhaps, seven days prior to the application, just to propose an indicative timeframe, and there had been no response to the wages offer and the application had then been made, then an inference may be drawn that the conduct of the unions in respect of this matter may not comply with section 228(1) of the Act and that an inference ought to be drawn as a consequence that they were not genuinely trying to reach an agreement …
 
… But for the reasons that I've given […] it is not possible for me to reach that conclusion in the current circumstances that are before me in which the timeframes have meant that the decision making for purposes of making the application and the opportunities to examine the latest wage offer have overlapped …’
 
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