Labor’s Workplace Relations legislation, to be released later this year, is underpinned by a focus on collective enterprise bargaining — with the requirement that employers bargain with employees in “good faith”. But what exactly will this elusive good faith bargaining (GFB) requirement entail, and will employers, unions and workers embrace the concept?
Labor’s Forward with Fairness Policy indicates that employers will be obliged to:
- attend and participate in meetings;
- disclose relevant information;
- provide timely responses to each other’s proposals;
- give genuine consideration to proposals and the needs of the other parties and provide reasons for responses; and
- refrain from engaging in unfair conduct that undermines freedom of association or collective bargaining.
In determining whether the GFB obligation has been breached, employers’ conduct may be scrutinised by the courts. Employers that attempt to undermine the collective bargaining process by intentionally misleading employees or the union, making unreasonable demands, engaging in evasive behaviour or attempting to bypass the union or bargaining agent will likely be found to have breached the GFB duty.
The GFB obligation does not mean that parties will have a duty to reach agreement, as this would essentially invalidate the freedom of the parties to engage in the process of collective bargaining. However, there will be the minimum requirement that employers give genuine consideration to the proposals and the needs of the other party. Where parties require assistance, are not complying with their obligation or are at an impasse, Fair Work Australia could become involved in the process.
To minimise potential risks of industrial action or a damaging bargaining process, employers need to develop and maintain appropriate and cooperative rapport with their employees. The most effective way to end up with a positive outcome is to promote a high level of trust and consultation between the employer and employees. Effective workplace communication will likely determine the success or failure of the bargaining process. It is imperative that employers understand their obligations as part of this process, which is set to commence in 2010.
