Good Faith Bargaining
NoTICE OF REPRESENTATIONAL RIGHTS
A key enterprise bargaining provision of the Fair Work Act 2009 (the Act), is the requirement for an employer that will be covered by a proposed enterprise agreement (except greenfield agreements) to take all reasonable steps to give notice of the right to be represented by a bargaining representative. The notice must be provided to every employee who will be covered by the agreement and is employed at the notification time for the agreement.
The notice must be given as soon as practicable, and not later than 14 days after the notification time for the agreement. If the notice is not provided within the prescribed time, the agreement cannot be approved by the Commission.
The term `Notification time’ refers to the time when either:
The employer agrees to bargain, or initiates bargaining for the agreement; or
A majority support determination in relation to the agreement comes into operation; or
A scope order in relation to the agreement comes into operation; or
A low-paid authorisation in relation to the agreement comes into operation.
The Act states that the notice must contain the content as prescribed by the Fair Work Regulations, must not contain any other content and must be in the form prescribed by the Act.
Significant care must be taken to download the current notice of employee representative rights from the Commission’s website and comply with all the requirements, including not adding to or modifying the notice.
An underlying theme during negotiations for enterprise agreements in Australia is the requirement for all parties involved in negotiations, including bargaining representatives, to bargain `in good faith’. The term, in respect of enterprise bargaining, mandates that the procedural processes used in negotiating agreements is fair to both parties.
The requirements for good faith bargaining that parties must meet are set out in s228 of the Fair Work Act and include:
Attending, and participating in, meetings at reasonable times;
Disclosing relevant information (other than confidential or commercially sensitive information) in a timely manner;
Responding to proposals made by other bargaining representatives for the agreement 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 proposals;
Refraining from capricious or unfair conduct that undermines freedom of association or collective bargaining; and
Recognising and bargaining with the other bargaining representatives for the agreement.
It is important to note that good faith bargaining does not require a bargaining representative to make concessions during the bargaining process or reach agreement on the terms to be included in an agreement.
Clear, documented and repeated communication are an important part of the process.
If one party believes the other is not bargaining in good faith, they can make an application to the Fair Work Commission to facilitate bargaining, or seek bargaining orders to compel the party to bargain in good faith.
Relevant cases that underscore these principles include:
A party held to have no real intention to bargain Endeavour Coal Pty Ltd vs APESMA  FWAFB 1891
A party found to have been acting in a capricious or unfair manner AMWU vs Ridders Fresh Pty Ltd T/A Tibaldi Smallgoods  FWC
For queries about good faith bargaining or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 0417 622 178 or via email to firstname.lastname@example.org
Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice, and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.