Good Faith Bargaining gets some definition

Under the Fair Work Act (Act) 2009, bargaining representatives are required to bargain in ‘good faith’.  The ‘good faith’ requirements that must be met by section 228 of the Act are:

• attending and participating in meetings at reasonable times;
  
  
• disclosing relevant information (other than confidential or commercially sensitive information) in a timely manner;
  
  
• responding to proposals made by other bargaining representatives in a timely manner;
  
  
• giving genuine consideration to the proposals of other bargaining representatives for the agreement, and giving reasons for the bargaining representative’s responses to those proposals;
  
  
• refraining from capricious or unfair conduct that undermines freedom of association or collective bargaining; and
  
  
• recognising and bargaining with the other bargaining representatives for the agreement.

These good faith bargaining requirements were tested recently in negotiations between the Liquor Hospitality and Miscellaneous Union (LHMU) and Coca-Cola Amati l(CCA).

During the process, CCA proposed a restructure in its South Australian premises by reducing 11 existing employees’ positions covered by a collective agreement to 3 salaried employee positions.

LHMU alleged that CCA was in breach of the Act by not meeting the good faith bargaining requirements.  LHMU accordingly wrote to CCA on 12 August outlining this. On the same day LHMU applied for a bargaining order under section 229 of the Act.

CCA responded by saying that it had bargained in good faith in that it remained committed to meeting with bargaining agents, disclosing relevant information and giving genuine consideration to alternative proposals for the proposed restructure.

Fair Work Australia (FWA) refused the LHMU application for the bargaining order because it considered the LHMU had not given CCA an opportunity to respond to its concerns as required by section 229(4) of the Act. The FWA concluded that LHMU application was ‘made prematurely in that necessary requirements had not been met.’

Whilst it is early days in the way the bargaining process is to be applied by FWA, this decision at least demonstrates that FWA will require genuine effort to bargain rather than as occurred in this instance, with concerns being raised by the union and no reasonable time being given to the employer to respond.

Should you have any questions about good faith bargaining and collective agreements, please contact Ian Curlewis on 9288 6756, email: ian.curlewis@lavanlegal.com.au, Michael Jensen on 9288 6944, email: michael.jensen@lavanlegal.com.au or Benn Wallace on 9288 6741, email benn.wallace@lavanlegal.com.au