Bargaining starts when the employer initiates the process or agrees with the workforce to bargain for an agreement. An employer may be forced to commence bargaining by a union or by employees by making an application to Fair Work Australia.
Bargaining for agreements must be conducted by all parties in “good faith”.
Good faith bargaining (GFB) requires an employer to recognise and bargain with bargaining representatives. GFB includes:
- attending and participating in meetings;
- disclosing relevant information;
- responding to proposals;
- refraining from ‘capricious or unfair’ conduct; and
- recognising and bargaining with other bargaining representatives for the agreement.
If an employee belongs to a union, the union will be treated as a default bargaining representative, though an employee can appoint a different bargaining representative by providing written notification to the employer.
The Fair Work Act also proposes a Low Paid Bargaining System that provides unions with additional rights to negotiate agreements for employees paid minimum safety net terms and conditions, in industries where there has not been a history of enterprise bargaining and employees can’t access its benefits.
Low paid industries include childcare, aged care, community services, security and cleaning.
Industrial Action (withholding services for stop work meetings and the like) is protected during bargaining for enterprise agreements. Conditions apply:
- Employees cannot take industrial action before the expiry date of a current enterprise agreement;
- Employers can lock out employees who have taken industrial action.
Fair Work Australia may step in if:
- bargaining representatives are not bargaining in good faith; or
- the bargaining process is not proceeding efficiently or fairly because there are multiple bargaining representatives;
- bargaining representatives are unable to resolve a dispute;
- protected industrial action or the threat of it if it is causing economic harm to employers or employees;
- there is a ballot determining majority support for industrial action and an application is made to Fair Work Australia.
The agreements will not be given approval unless it passes the Better Off Overall Test (BOOT), which requires that each employee is better off overall compared with the relevant modern award. If it does not, the agreement has to come back to the bargaining table. If you ever have any doubts as to what is legal and what isn't in relatin to bargaining then consult an employment solicitor.
