Guidance on good faith bargaining from FWA


Guidance on good faith bargaining from FWA

As new agreements come before Fair Work Australia for approval, some points for parties to agreements to note are becoming clear.


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As new agreements come before Fair Work Australia for approval, some points for parties to agreements to note are becoming clear.
Fair Work Australia is processing single enterprise agreements, and two important clauses in the Fair Work regime are appearing in some of these agreements. Senior Deputy President Hamberger made orders for the model flexibility and consultation clauses to become terms in two separate agreements.
Good faith recommendations from FWA
Senior Deputy President Drake made detailed good faith bargaining recommendations to guide Transfield (Australia) and the AMWU in their negotiations for a new agreement.
The recommendations are set out in full below to indicate the type of behaviour required of the parties in the context of good faith bargaining:
‘[1] Transfield (Australia) Pty Ltd (Transfield) will provide a document to the bargaining agent representatives which consolidates the proposal it wishes to place before its employees by close of business Wednesday, 19 August, 2009.
[2] The bargaining agent representatives and Transfield will attend a meeting to discuss the Transfield proposal on Friday, 21 August, 2009.
[3] At that meeting on Friday, 21 August, 2009 Transfield will inform the bargaining agent representatives as to which employees, ie their number and classification, it is intended that its proposal should cover.
[4] Ten (10) days will then be allowed for the bargaining agent representatives to confer with their members and discuss Transfield’s offer and to put any counter offer which might arise from those conferences.
[5] If Transfield still intends to proceed with an employee ballot on its proposal it should nominate a date for the ballot after 2 September, 2009.
[6] The bargaining agent representatives shall meet further with Transfield to discuss the proposal in the week commencing 24 August, 2009.
[7] During this process Transfield will not attempt to bypass the bargaining agent representatives in relation to its proposal by contacting for this purpose the members of the bargaining agent representatives directly, in meetings or by text or other telephonic messages.
[8] Transfield will deal with all officers and delegates of the bargaining agent representatives who are authorised by their organisations to conduct negotiations.
[9] The bargaining agent representatives will seek to adjourn the application for protected action orders which are currently listed before Commissioner Roberts, subject to his discretion, to a date after the meeting of Friday, 21 August, 2009.
[10] Those proceedings currently listed before Commissioner Roberts and these proceedings will be listed for hearing before a single member, subject to Commissioner Robert’s discretion, on a date after 21 August, 2009. For that purpose I am available on Tuesday, 24 August, 2009.
[11] The employee ballot regarding Transfield’s proposal will be held on a date after 2 September 2009, notice of which date will be given to the employees in accordance with the Act.
[12] The ballot will be held at the respondent’s premises during times, and in a manner agreed to, by a representative of the bargaining agents and a representative of Transfield, both of whom will be appointed as returning officers, at the meeting previously referred to on Friday, 21 August 2009.
[13] Should the manner in which the ballot is to take place not be agreed between the representatives of the bargaining agents and Transfield on Friday, 21 August, 2009, the conduct of the ballot will be referred to me and I will make a further recommendation as to those issues.’
Seeking variation to agreement — not ‘genuinely trying’
Senior Deputy President Jonathan Hamberger rejected a TWU application for a secret ballot to authorise industrial action against Brinks Australia. The proposal to vary a preserved state agreement did not meet the new legislation's threshold requirement of genuinely trying to reach an agreement in his view.
The Senior Deputy President said that in the context of the secret ballot provisions that ‘an agreement' must mean an enterprise agreement under the Fair Work Act:
‘While the evidence indicates that further discussions have been held between the parties since this letter, no evidence was presented that the TWU have altered the type of arrangement they are seeking. As I am not satisfied that they have genuinely tried to make an enterprise agreement under the Fair Work Act I am required by section 443 (2) to dismiss the application. I therefore do so …’
Unions seeking protected action must prove ‘genuinely trying to reach agreement’
Unions are required under the Fair Work Act to provide evidence that they are genuinely trying to reach agreement when seeking orders for a protected action ballot.
Senior Deputy President O'Callaghan found that, while the union (CEPU) had made assertions on a number of issues, it had not presented any evidence that satisfied him that the requirements for making the ballot order in s443 had been met:
‘The application was not accompanied by any material upon which I could rely to satisfy myself that the requirements of section 443 had been met. As a consequence, I have considered the application on the basis of the very limited material before me …
The prerequisite requirements of the making of a protected action ballot have been substantially simplified by the Act. The fundamental requirement is that Fair Work Australia must be satisfied that the CEPU is genuinely trying to negotiate an agreement …
The granting of a protected action ballot order is not an automatic consequence of an application to this effect. Section 443(1)(b) requires that Fair Work Australia must be satisfied that the applicant is trying to reach agreement with the employer. In this case the applicant, being the CEPU has not satisfied me that it has been and is trying to reach genuine agreement. Section 443(2) prohibits Fair Work Australia from making a protected action ballot order except in accordance with the circumstances in subsection (1) …
In the absence of this satisfaction, the application must be refused.’
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