Once the employer, the employees and their respective representatives agree to bargain (or are compelled to bargain by an order of Fair Work Australia), then an employer should first notify employees of their right to be represented by way of a notice of representational rights. This notification should be provided within 14 days.
Typically, employees who are members of the union will appoint the union to be their bargaining representatives.
The Fair Work Act requires the negotiating parties to bargain in good faith. The good faith bargaining requirements state that parties must:
- attend and participate in meetings at reasonable times;
- disclose relevant information in a timely manner;
- respond to proposals made by other bargaining representatives in a timely manner;
- give genuine consideration to the proposals of other bargaining representatives and give reasons for any responses to those proposals;
- refrain from capricious or unfair conduct that undermines freedom of association or collective bargaining;
- recognise and bargain with the other bargaining representatives.
However, it’s important to note that parties are not obliged to make concessions during bargaining or reach an agreement on terms that are to be included.
Brief examples of conduct which constitutes a breach of the good faith bargaining requirements are:
- unilaterally withdrawing from bargaining;
- excluding the union from negotiations when employees are union members;
- offering to give employees a 3% pay rise and additional overtime if they revoked the status of their union membership
If either party has breached the good faith bargaining requirements, then an application can be made to FWA which has the power to make certain orders if various conditions have been met.
If you feel like you are not bargaining in good faith, then you most likely are not. Make sure that you keep your bargaining lawful at all times to ensure a smooth and efficient bargaining process.
If you need some help with your enterprise bargaining, feel free to give us a call at HR Gurus 1300 959 560, where one of our experienced HR experts will be able to assist you.
Written by resident HR Guru Jessy Warn.