When a union wants to force an employer to bargain for an
enterprise agreement, it can now organise protected industrial
action without needing to show that a majority of the workforce
supports bargaining. A Full Bench of Fair Work Australia has
clarified that a union only needs to be "genuinely trying
to reach agreement" to ballot its members' support
for industrial action.
Employers who do not agree to bargain and do not initiate
bargaining are no longer shielded from an industrial action ballot
until a majority of the workforce can be convinced to support it.
Depending on what action is organised, simply not agreeing to a
minority of employees' (or their union's) demands to
bargain may no longer be an option. Employers must focus instead on
using good faith bargaining tools to promote bargaining discussions
around a sustainable outcome for the workplace, and to expose any
unhelpful posturing or 'gaming' by bargaining
The decision, J.J.Richards & Sons Pty Ltd v TWU
 FWAFB 3377, upholds an earlier decision permitting the
Transport Workers' Union to hold a ballot of its members
seeking authorisation for industrial action. The TWU had sought
(and was granted) permission to seek a ballot authorising TWU
members taking industrial action, before J.J. Richards had agreed
to bargain under the Fair Work Act, and without first
demonstrating that a majority of the whole workforce supported the
early resort to industrial action.
The result is that if a union simply shows it is
"genuinely trying to reach agreement", a test
with a relatively low threshold, the employees it represents can
approve the taking of protected industrial action without a
majority of employees necessarily being involved in the decision.
If the employees represented are in crucial roles, the protected
industrial action may result in heavy industrial pressure to
bargain. The decision resolves for now a long running controversy,
although not in a way many employer groups would say was intended
when the Fair Work Act was introduced.
The key remaining mechanism for successful bargaining for
employers is to enforce fair bargaining focussed on the needs of
the workplace, actively using the good faith bargaining
obligations. Effective deployment of those obligations requires
planning and a willingness to expose bad bargaining behaviour.
Potential exposure to protected industrial action is increased
by this decision, but the increased exposure can be managed by
employers leading the bargaining process and driving a defensible
bargaining position from the beginning.
The opinions which ultimately matter are the majority of
employees voting on proposed agreements. Convincing these
employees, within the bounds of good faith bargaining, will allow
an earlier vote with better prospects of approval, and will limit
the opportunity for a minority of employees to set the agenda.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Treasurer Scott Morrison recently announced changes to a number of 2016 Budget superannuation contribution measures.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).