Home' Enterprise Bargaining : Issue 1 Contents 11
Once a majority support determination comes into force, an employer will
have 14 days to provide employees with the Notice.
If the FWC issues a Majority Support Determination, and an employer
continues not to participate in bargaining, a bargaining representative for the
employees may seek a bargaining order.
While an employer will be required to bargain if the FWC issues a Majority
Support Determination, there are different strategic considerations when
you’re responding to bargaining as opposed to initiating it. You should
consider carefully the potential advantages and disadvantages of initiating
or responding to bargaining before deciding on your negotiating strategy.
Good faith bargaining
Under the Fair Work Act bargaining representatives are required to meet
the good faith bargaining requirements when negotiating for a proposed
These requirements regulate the process and conduct of negotiations, but
do not require parties to make concessions or reach an agreement.
The good faith bargaining requirements 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 for the
enterprise agreement in a timely manner;
► giving genuine consideration to the proposals of other bargaining
representatives for the enterprise 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 enterprise agreement.
The term “capricious or unfair conduct” may constitute:
► failing to recognise a bargaining representative;
► not allowing an employee who is a bargaining representative to attend
► engaging in detrimental conduct towards an employee because the
employee is a bargaining representative; or
► preventing an employee from appointing their own representative.
Opinions have differed over the effect of the requirement that parties disclose
relevant information. One view is that an employer will only be required to
disclose information that is reasonably necessary to enable discussions to
occur. Another view is that all relevant information will need to be disclosed
which is likely to lead to disputes over whether particular documents are
commercially sensitive, or not. While the good faith bargaining requirements
do not require parties to reach an agreement which they do not accept, or
make concessions during bargaining, the requirements could work to exert
significant pressure on parties and the bargaining representatives involved
in the process. This is especially so considering that the parties must provide
reasons for their responses. The bargaining requirements do not apply to the
process of varying or terminating an enterprise agreement.
Failure to comply with the good faith bargaining provisions can result in
► The FWC making orders about a party’s actions in the bargaining process;
and if further breaches occur could lead to;
► The FWC arbitrating an outcome through making a workplace
determination (see further discussion below).
You should seek legal advice about the effect that the good faith bargaining
requirements will have on your negotiation strategy, particularly given the
possible consequences of being found to have breached the requirement.
A special stream of bargaining is available only for low-paid employees,
to assist and encourage them and their employers to make an enterprise
agreement that meets their needs.
The Fair Work Act does not define “low-paid employees”; access to the low-
paid multi-enterprise bargaining stream will be limited to those employers
and employees covered by a low-paid authorisation obtained from the FWC,
which is yet to grant one. Either a bargaining representative to the enterprise
agreement or a relevant employee association is entitled to apply for a low-
paid authorisation. An authorisation may be granted where a multi-enterprise
agreement is being negotiated with low-paid employees.
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