You have been negotiating with union representatives and other bargaining representatives about a proposed enterprise agreement for weeks, and it’s clear there are sticking points that aren’t going away.
So when can you say “enough is enough”, and put the proposed agreement to a vote?
There is nothing in the Fair Work Act that says you have to reach agreement with bargaining representatives before putting the proposed agreement to a vote.
But remember, if you seek to put the proposed agreement to an employee vote without agreement from their bargaining representatives, the bargaining representatives may apply to Fair Work Australia for a bargaining order to restrain you from doing so. They would make this application on the basis that you have not bargained in “good faith”.
You can protect yourself from vulnerability to such an order by complying with the ‘good faith bargaining requirements’ contained in the Fair Work Act.
This requires that you explain to the bargaining representatives why you insist on having the disputed provisions in the agreement before you request employees to vote on the agreement. You need to back up those explanations with relevant information, but you don’t have to hand over commercially sensitive or confidential material.
You can ask Fair Work Australia to conciliate and, if necessary, arbitrate the sticking points. However, the bargaining representatives in dispute would need to agree to that process – and it would be costly and time consuming. So before you do that, you could involve an independent mediator to try and resolve the stalemate.
For more information on enterprise agreements, please see chapter E2 Enterprise Agreements in your handbook.
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Regards,
Charles Power
Editor-in-Chief
Employment Law Practical Handbook
Tags: bargaining representatives, E2 Enterprise Agreements, Employment Law Practical Handbook, enterprise agreement, fair work act, fair work australia, proposed agreement, union representatives
