In the last fortnight, Fair Work Australia (FWA) has taken the
controversial move of halting the vote on three separate enterprise
agreements following claims by interested unions that the
employers' were not bargaining in good faith.
The orders by FWA have sharpened the conflict between Australian
employers and the union movement as both groups come to grips with
the new bargaining requirements under the Fair Work Act (the
At the heart of the controversy is whether the unions, through
FWA, can stop an employer from bargaining with its employees.
Where an employer has put a draft agreement to its employees,
and requested that they vote on that agreement, can a union (as a
bargaining agent) intervene in that process, in effect, stopping
the vote and forcing the employer to bargain with the union? Is
this an abuse of FWA's powers?
In a recent case the relevant union made the application only
the afternoon before the proposed vote was due to be held. The FWA
declined to make a final order however the union was successful in
obtaining an interim order - thus having the practical effect of
delaying the vote.
The unions' claims have been that the employers' in
question have failed to negotiate in good faith in that the
employer has not properly consulted with the union during the
negotiation process. These claims have been made by the unions even
in circumstances where there was consultation by employer, however,
such consultation was considered by the union to be inadequate or
The crux of the issue facing employers is how far consultation
with a union (or multiple unions) will have to go to meet the
"good faith" threshold. At what point will an employer be
free to walk away and call a vote?
This issue is one of many that employers will need to grapple
with in the months and years ahead under the new industrial
Donaldson Walsh is running a series of seminars on the new Fair
Work Act, and a specialist seminar on Agreement Making (Good Faith
Bargaining) to be held on Wednesday, 19th August 2009.
See the attached flyer for the specialist seminar, or visit the
Donaldson Walsh website at
www.donaldsonwalsh.com.au for further details.
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.
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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.
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