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 Act).
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 incomplete.
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 relations laws.
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.
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