When you want to make an enterprise agreement, you must give all the employees who are going to be covered by the agreement the chance to appoint bargaining representatives.

And remember, unions can also be bargaining representatives if they are eligible to cover the employee represented. And not only that – if employees who are union members fail to actively appoint someone other than their union to be their bargaining representative, then the union will become the bargaining representative by default.

If you know that the union is a bargaining representative for some or all of the employees who will be covered by the agreement, you cannot fail to recognise the union. If you do so, you may breach your good faith bargaining requirements under the Fair Work Act.

Take this recent case for example:

In Australian Municipal, Administrative, Clerical and Services Union v Queensland Tertiary Admissions Centre Ltd [2009] the Queensland Tertiary Admissions Centre Ltd was found to have breached their good faith bargaining requirements by largely excluding the union (as the employees’ bargaining representative) from the bargaining process. They had only one brief meeting with them and were found instead to have bargained directly with their employees.

However, this doesn’t mean you can’t talk to your employees about the agreement directly. So long as you are willing to discuss the agreement with the union, you are free to hold meetings with your staff about the agreement without the need for the union to be present.

For more information on enterprise agreements and the bargaining process, check out the brand new version of chapter E2 Enterprise Agreements, due out in your next Employment Law Practical Handbook update.

Regards,

Charles Power
Editor-in-Chief
Employment Law Practical Handbook

Tags: bargaining representative, employee union, enterprise agreement