Fair Work Australia has made its first good faith Bargaining
Order under the Fair Work Act 2009 (the
Act) requiring the employer, the Queensland Tertiary
Admissions Centre Limited (QTACL), to cease to
conduct a ballot for a replacement enterprise agreement and to
require QTACL to bargain with the Australian Services Union
What do employers need to do?
Employers need to ensure that they understand their obligations
in relation to bargaining representatives and good faith
Employers should develop a bargaining strategy that includes
managing their relationships with unions and other bargaining
representatives and consultation with employees
What is good faith bargaining
Good faith bargaining is a new requirement contained in the Act,
with the obligation to bargain in good faith starting on 1 July
An employee, who will be covered by an enterprise agreement, is
entitled to appoint a bargaining representative. If an
employee is a union member,that union will be the default
bargaining representative of the employee unless the
employee appoints some other person.
The Act states that "bargaining representatives" must
comply with a range of good faith bargaining requirements in
relation to agreement making, which are:
Attending and participating in meetings at reasonable
Disclosing relevant information (other than confidential or
commercially sensitive information) in a timely manner
Responding to proposals made by other bargaining
representatives in a timely manner
Giving genuine consideration to the proposals of other
bargaining representatives for the agreement, and giving reasons
for the bargaining representative's responses to those
Refraining from capricious or unfair conduct that undermines
freedom of association or collective bargaining.
Good faith bargaining obligations are mutual and apply to the
employer, a union party, or an individual who an employee has
appointed as their representative.
Where a party is not bargaining in good faith a Bargaining Order
can be made by Fair Work Australia.
The Queensland Tertiary Admissions Centre Limited decision
The QTACL decision is a significant decision for employers
because it has clarified that an employer is likely to have an
obligation to meet good faith bargaining obligations even where
bargaining commenced prior to 1 July 2009.
Senior Deputy President Richards did, however, leave the door
open for employers, saying that Fair Work Australia may
exercise some discretion on this point depending on the maturity of
pre Fair Work Act negotiations:
"The Act does not appear to
preserve any negotiating process commenced prior to 1 July 2009,
though arguably it may be a matter for FWA's discretion at
s.230(1)(c) of the Act whether any orders might be made in
circumstances where negotiations reached a marked level of maturity
by the commencement date of the legislation".
The QTACL decision is also significant because it has indicated
the breadth of Orders which can follow making a successful
application to Fair Work Australia for a Bargaining Order.
In this case the application was made to Fair Work Australia the
day before a ballot was to commence for the making of a replacement
enterprise agreement by QTACL.
His Honour accepted that QTACL had excluded the ASU from
meetings at a time when the agreement content was not fixed or
immutable as this was a breach of good faith bargaining
requirements. In addition the QTAC did not recognise the ASU as a
bargaining representative over the course of the discussions and
meetings in July 2009 at the time when it was apparent the ASU had
such representative standing.
In addition, because of the urgency of the application resulting
from a proposed ballot starting the following day, His Honour
exercised his discretion not to require that the ASU comply with
the notification provisions under section 229(4)(b), (c) and (d)
(4) The bargaining representative
may only apply for the bargaining order if the bargaining
(b) has given a written notice
setting out those concerns to the relevant bargaining
representatives; (c) has given the relevant bargaining representatives a
reasonable time within which to respond to those concerns;
and (d) considers that the relevant bargaining representatives have
not responded appropriately to those concerns."
The order made by Senior Deputy President Richards included:
Requiring that the ballot on the following day not be
Requiring the ASU and QTAC to hold four meetings over following
two weeks with the duration of those meetings to be determined by
the bargaining representatives, and
Further orders can be sought for meetings but only if there is
appropriate evidence that QTAC and the ASU have been unable to
reach agreement on the same, and that such meetings are not for
capricious purposes but have a real and apparent prospect for
achieving an agreement.
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.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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).