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Tactics to undermine good faith bargaining

Under the Fair Work Act, employers are bound to conduct enterprise bargaining with bargaining representatives, and both sides are required to bargain in good faith. S.228 of the Act defines the specific obligations which are required to be followed to constitute good faith bargaining and they include….refraining from capricious or unfair conduct that undermines freedom of association or collective bargaining and recognizing and ….bargaining with the other bargaining representatives for the agreement. Different employers take differing strategic views about the extent to which they will communicate with employees directly during this process, given that there may be a significant number of employees who have not directly or indirectly nominated bargaining representatives; and often this will reflect the significance or otherwise of the presence of unions in the process. The more aggressive unions take a very dim view of employers attempting to divide and conquer by communicating with employees directly.
What is permitted?
The test in the legal perspective is whether or not to do so will constitute a breach of the good faith bargaining obligations because the Act is otherwise silent about this. It is generally accepted that there is no reason why an employer cannot convene meetings with its employees, those who have and those who have not appointed bargaining agents, and communicate its position in the bargaining, even excluding bargaining agents from that meeting. However, when doing so there is a need for the employer to act with scrupulous honesty and balance. Furthermore it would not be permissible to exclude bargaining agents who are also employees unless the employer wants to risk a claim of adverse action.

There is some doubt whether an employer may submit a proposed enterprise agreement to a ballot of its employees, after refusing to negotiate with the bargaining representatives, provided that it has met with them beforehand (ASU v Tele Sales Pty Ltd (2011) FWA 3196).

The accepted view is that there will be occasions when it is acceptable to ignore bargaining representatives, but there is always the possibility that in doing so there may be a breach of the good faith bargaining requirements, and the Commission may order that the negotiations cease until it is rectified.

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