RMIT University 1 How the parties bargain: the nature and reach of Good Faith Bargaining (GFB) •GFB obligations in s. 228 •Centrepiece of bargaining framework •Bargaining orders (s. 229) & other mechanisms •Important role for FWC in oversight & enforcement of GFB
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RMIT University 1 How the parties bargain: the nature and reach of Good Faith Bargaining (GFB) GFB obligations in s. 228 Centrepiece of bargaining framework.
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RMIT University 1
How the parties bargain: the nature and reach of Good Faith Bargaining (GFB)
• GFB obligations in s. 228
• Centrepiece of bargaining framework
• Bargaining orders (s. 229) & other mechanisms
• Important role for FWC in oversight & enforcement of GFB
– ‘I suppose the good faith bargaining provisions sort of provided an initial push for the company to get along and actually come to the bargaining table …’
• ‘Shadow effect’, i.e. lodgment of application (or threat) sufficient to alter other party’s bargaining conduct
• One employer’s view:– GFB is ‘a tool, [but really] it’s … what people work around.’
– ‘At the end of the day the good faith bargaining provisions can be used to bring people to the table, can make them put certain information on the table, but … they don’t seem to assist in any way in terms of actually getting to some sort of outcome.’
– ‘we really believed we would get a couple of [bargaining] orders that we were seeking … [but] if the bar has to be so incredibly high, then what’s the point?’
– Particular concerns re 3rd parties not at the bargaining table; & employer “direct dealing” & “surface bargaining” tactics/conduct
Assessing the impact of FWC dispute resolution in bargaining
• Mostly used by “repeat players: unions & large, unionised employers
• Motivations for using s.240:
–1. to finalise agreement or overcome impasse
– ‘… we had reached a point where we weren’t making any progress in the negotiations, and we were really… seeking to have somebody with, I suppose with some authority and some… knowledge, assist with the process…’
Assessing the impact of FWC dispute resolution in bargaining (2)
• Motivations for using s.240:
–2. to defuse hostilities– ‘we made [the] application … because we were going through all this, threats
and intimidation. But also the meetings were just not at all constructive… so we wanted to get into a forum where we had an independent person sitting there because that tends to make people at least make reasonable … responses. And so we got into that and we went right through the claims. That was the first really civil meeting…’
–3. as an “exit strategy” & way of “saving face”– ‘There may be times when we say to the employer… there’s an issue where
we actually … agree with the employer, but the membership aren’t that keen on it and so, we’re going to take it to [FWC] and take along a posse of members and see if we can get a Commissioner to tell them that it’s not that bad after all and they can accept the offer…’