'Hi, I’m a WorkChoices bargaining agent and I’m here  to help'

Analysis

'Hi, I’m a WorkChoices bargaining agent and I’m here to help'

Updated:4/06 The WorkChoices legislation allows parties to both collective and Australian Workplace Agreements (AWAs)to appoint 'bargaining agents' to negotiate on their behalf.

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Updated: 4/06

The WorkChoices legislation allows parties to both collective and Australian Workplace Agreements (AWAs) to appoint 'bargaining agents' to negotiate on their behalf. What are 'bargaining agents', who can be one, and what can they actually do?

What does the Act say?

Not very much, actually. Like many other parts of WorkChoices, it awaits the Regulations to make the scope and meaning of the provisions clear(er).

The relevant provisions of the Bill are in Part VB (Workplace Agreements), Div 3, sec 97, 97A and 97B.

What is a bargaining agent?

In relation to an AWA, either an employee or the employer can appoint a bargaining agent to represent them. For a collective agreement, the provisions state that an individual employee can appoint a bargaining agent.

There is no specific provision at present for a group of employees to appoint a single bargaining agent. Regulations may clarify this situation, as otherwise it could be interpreted that each employee has to make an individual request to be represented by the same agent and possibly even that different employees could appoint different agents, which would be unwieldy and seem to defeat the purpose of a 'collective' agreement.

Vague definition

As to what actually is a bargaining agent, the Act is somewhat vague. It implies that an agent is someone or some organisation that that will represent the employee by meeting and conferring with the employer in the course of negotiating a new agreement or varying or terminating an existing one.

Similarly, an agent may represent an employer in the same way for the same stages of an AWA.

There are no more specific indications of what 'meeting and conferring' involves at this stage, other than that the employer must provide the bargaining agent with a 'reasonable opportunity' (again, not defined further) to do so, and sets a time limit in some cases (see further discussion below).

Who can be a bargaining agent?

The original WorkChoices Bill contained the provision that, if an employee wished to appoint a union as his/her agent, the employee had to be a member of that union and the union had to be entitled to represent the employee in relation to the work covered by the proposed agreement. Presumably this meant that the union had to have recognised coverage of the relevant industry, trade or occupation. However, this provision was deleted when the Bill was amended. Therefore it appears that an employee could now engage a union or union official as a bargaining agent, regardless of whether the employee was a member of the union and regardless of whether the union typically covered the employee’s type of work or industry.
 
Who else?


Once again, the Act is vague as to who else can be a bargaining agent. Section 97 states that it must be someone who 'meets the requirements in this section' at the time of negotiating the agreement. The original Bill had added that the agent 'must meet the requirements (if any) specified in the regulations', but this section (sec 97(2)) was withdrawn when the Senate amended the Bill.

In the current absence of Regulations (and the amendments above indicate that no relevant Regulations are now proposed), it appears that the following people could be nominated as bargaining agents in addition to a union as specified above:

The original WorkChoices Bill contained the provision that, if an employee wished to appoint a union as his/her agent, the employee had to be a member of that union and the union had to be entitled to represent the employee in relation to the work covered by the proposed agreement. Presumably this meant that the union had to have recognised coverage of the relevant industry, trade or occupation. However, this provision was deleted when the Bill was amended. Therefore it appears that an employee could now engage a union or union official as a bargaining agent, regardless of whether the employee was a member of the union and regardless of whether the union typically covered the employee’s type of work or industry.
 
Who else?

Once again, the Act is vague as to who else can be a bargaining agent. Section 97 states that it must be someone who 'meets the requirements in this section' at the time of negotiating the agreement. The original Bill had added that the agent 'must meet the requirements (if any) specified in the regulations', but this section (sec 97(2)) was withdrawn when the Senate amended the Bill.

In the current absence of Regulations (and the amendments above indicate that no relevant Regulations are now proposed), it appears that the following people could be nominated as bargaining agents in addition to a union as specified above:

  • a lawyer or law firm
  • a parent or guardian (for example where the employee is young and inexperienced)
  • a relative or friend
  • where the employee is non-English speaking, an interpreter
  • an employer organisation to which the employer belongs

The Explanatory Memo merely says that it is intended that 'an employee’s choice of bargaining agents would not be limited'.

It is also possible, if demand justifies it, that organisations (excluding unions) and individuals may set themselves up as commercial 'bargaining agents' and offer their services to employees for a fee.

What are the obligations relating to bargaining agents?

The Act sets out some requirements for recognising and dealing with bargaining agents.

  • The employee or employer must appoint the bargaining agent in writing. It appears that the other party has the option to refuse to recognise the agent if this does not occur.
  • If the appointment is in writing and a copy of it has been given to the other party, the other party cannot refuse to recognise the agent. To do so is a breach of the Act and subject to financial penalty.
  • Coercion of the other party in relation to appointment or non-appointment of a bargaining agent, or a particular bargaining agent, is likewise a breach of the Act.
  • In relation to AWAs, the agent may be involved in the 'making, variation or termination' of the AWA, but no further details of the procedural steps that this may involve are provided.
  • In relation to collective agreements, the bargaining agent may 'represent the employee in meeting and conferring with the employer about the making or variation of the agreement'.
  • For greenfields agreements, the provision refers to varying agreements only. Other than the requirement to give the agent a 'reasonable opportunity to meet and confer with the employer about the agreement' which must span at least 7 days before the agreement is approved or varied, no further details of the procedural steps that this may involve are provided. Failure of an employer to comply with these provisions is a breach of the Act and subject to financial penalty.
  • The Employment Advocate may issue a certificate to the effect that an employee has legitimately requested a particular bargaining agent to represent him/her in relation to a collective agreement. The agent in question may request the certificate, but it is not intended that this certificate be a prerequisite for representing an employee. A single certificate may cover several employees appointing the same bargaining agent.
  • The Employment Advocate, at an employer’s request, may also issue a certificate to the effect that the employer is not required to give a bargaining agent the opportunities to meet and confer with it if the employee has withdrawn his/her request to be represented by the agent. Presumably such a request also needs to be in writing, although the Act does not expressly say so.
  • Both the above certificates can be used as prima facie evidence in the event of dispute proceedings under the Act.

The above procedures would need to operate in conjunction with the obligations that apply to employers and employees in relation to negotiating, varying and terminating agreements whether bargaining agents are involved or not.

Those procedures cover issues such as lodging and providing copies of agreements, giving an employees opportunities to consider the contents of agreements, no duress or coercion by the parties, etc.

These steps are covered in detail under Analysis of Federal Workplace Relations Amendment (WorkChoices) Bill 2005

Summary

The basic principles behind the use of bargaining agents seem clear enough, that is that employees may use other people or organisations to assist and represent them with negotiating workplace agreements, and that providers of such assistance may include people and organisations other than unions or employer organisations. However, like many other aspects of WorkChoices, the devil may be in the (Regulations) detail before we can evaluate the real scope and meaning of the provisions.

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