Expert Advice: How to determine when a union is not genuine in its negotiations

By Charles Power on November 10th, 2017
  1. Industrial Relations
  2. Industrial Action


NEGOTIATIONS with unions can drag on – and sometimes it is difficult to see whether or not the other party has approached the discussions in good faith.

But there are some telling signs you can look at to determine whether a union is genuinely trying to reach an agreement – or whether it is trying to manipulate the negotiations to only their advantage, and your disadvantage…

Union’s multi-site strategy gets the FWC tick

A recent Fair Work Commission (FWC) decision has opened the door for unions to use a multi-site strategy with employees of different companies during negotiations.

Before a union can organise protected industrial action for members working for a particular employer, it must apply to the FWC for an order allowing it to put the plan for industrial action to a vote.

In order for the FWC to allow this, it must be satisfied that the union has been and continues to be genuinely trying to reach an agreement with the employer of the employees who are to be balloted.

In Woolstar v National Union of Workers (NUW) (2017) the FWC had to deal with a challenge by an employer group to three separate protected action ballot order applications made by the one union in respect of its members at three different sites.

The employers argued the union was not genuinely trying to reach agreement with them, and was in fact pursuing a ‘multi-site or pattern bargaining strategy’ across all three sites.

While the FWC agreed that the union was seeking conditions that were common to all three sites, it also noted that the union was seeking to negotiate site-specific terms and conditions at each enterprise.

The FWC ruled the fact the union had a ‘multi-site bargaining strategy’ was not inconsistent with it genuinely seeking to reach agreement at each individual site.

So was the union getting lazy? No, according to the FWC.

If the union was ‘surface bargaining’ at the site level for site-specific agreements, but in fact wanted to achieve a single agreement to apply across all three sites, there would be a question about the genuineness of its bargaining.

Similarly, if the union’s ‘multi-site strategy’ had made negotiations or agreement at one site conditional on agreement at another site, there might be a basis to question the genuineness of its efforts to reach agreement at the first site.

However this was not the situation in this case – and the FWC rejected the employers’ argument.

How do you know whether a union is genuinely trying to reach an agreement?

Pattern bargaining occurs when a union decides to pursue uniform or very similar terms with more than one employer in an industry, sector or company group. In other words, pattern bargaining occurs when a union seeks to have an entire industry subject to the same terms in their agreements.

And the FWC still frowns on this.

But as chapter I3 Industrial Action of the Employment Law Practical Handbook says, the existence and promotion of a template agreement is not pattern bargaining in and of itself.

Other things to look out for in union negotiations are:

  • Is the union demonstrating they are prepared to bargain for the agreement? Meeting on middle ground is important for bargaining in good faith.
  • Do the negotiations with the union suggest that it is willing to determine the terms of the agreement in agreement with you and your employees? Or is it pushing for its own terms without exception?
  • Is the union aiming for a deal rather than a strike? If it looks like industrial action is the aim – the bargaining may not be in good faith.

Additional information about how to determine whether a union is genuinely trying to reach an agreement, as well as a checklist of the requirements for protected industrial action and how to stop unprotected industrial action is available in this chapter, one of more than 70 included in the Employment Law Practical Handbook.

You should also have a look at chapter E3 Enterprise Bargaining to learn exactly what it means to bargain in good faith – and what both parties need to do for the negotiations to run smoothly.

Why not order an obligation-free trial to the handbook today to see what other information it has to make your working week a happier one? Click here to receive your copy in the post next week.


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