Workforce Conference - Park Hyatt
Good Faith Bargaining
Stuart Wood, Henry Skene, Chris Gardnerwww.stuartwood.com.au [email protected]@freehills.com
22nd September 2009
Good Faith Bargaining
Good Faith Bargaining
Part 1: Stuart WoodPart 1: Stuart Wood The key sectionThe key section International will be relevantInternational will be relevant
Part 2: Henry SkenePart 2: Henry Skene Context and ControlContext and Control
Part 3: Chris GardnerPart 3: Chris Gardner Negotiating TacticsNegotiating Tactics
Part 1
Stuart Wood - Barrister
The key section
International will be relevant
The Key Section
Fair Work Act 2009: s228
(1) The following are the good faith bargaining requirements that a bargaining representative for a proposed enterprise agreement must meet:
(a) attending, and participating in, meetings at reasonable times; (b) disclosing relevant information (other than confidential or commercially sensitive information) in a timely manner; (c) responding to proposals made by other bargaining representatives for the agreement in a timely manner; (d) 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;
(e) refraining from capricious or unfair conduct that undermines freedom of association or collective bargaining;
(f) recognising and bargaining with the other bargaining representatives for the agreement.
The Key Section
Fair Work Act 2009: s228 (1)(e)
Refraining fromcapricious or unfair
conduct that underminesfreedom of association
or collective bargaining
The Key Section
Fair Work Act 2009: s228 (1)(e)
Refraining fromcapricious or unfair
conduct that underminesfreedom of association orfreedom of association or
collective bargaining
The Key Section
Fair Work Act 2009: s228 (1)(e)
Refraining fromcapricious or capricious or unfair
conduct that underminesfreedom of association orfreedom of association or
collective bargaining
The Key Section
Fair Work Act 2009: s228 (1)(e)
Refraining fromcapricious or unfaircapricious or unfair
conduct that underminesfreedom of association orfreedom of association or
collective bargaining
Conduct includes an omission: s12
The good faith bargaining requirements are generally self-explanatory. The last requirement, ‘refraining from capricious or unfair conduct…’ is intended to cover a broad range of conduct.”: EM cl 951.
The Key Section
The language in the new Australian good faith bargaining legislation was
"extremely broad" and the system that evolved would be shaped
to a large degree by the approach of the relevant courts and tribunals
DLA Piper partner Joseph Turzi told Workplace Express, 1 September 2009
The Key Section
The discretion conferred on Fair Work Australia to issue orders under Part 2-4 is not broad and unrestricted so as to cause bargaining to occur in a manner deemed appropriate by a member of the Tribunal. The discretion must be exercised subject to the specific limitations on its powers and consistent with the scheme of the Part which requires important preconditions to be met before an order can be made and limitations on the nature of orders available.
VP Watson; NUW v Chep [2009] FAW 202; 11 Sep 2009; [47]
The Key Section
The Key Section
Good Faith Bargaining
The key sectionThe key section
International will be relevantInternational will be relevant
International will be relevant
Pre-Fair Work Act
Australian Law
International Lawregarding
GFB
International Lawregarding
GFB
International will be relevant
Post-Fair Work Act
Australian Law
International will be relevant
International will be relevantInternational will be relevant
“[B]ut it would not be wise, we submit,for Fair Work Australia to look to US Labor laws for
significant guidance on the waythat our modern workplace relations system should be
interpreted.”
Stephen Smith, FWA Inaugural Sitting1 July 2009
Australian Law
International will be relevantInternational will be relevant
ILO U.S.A.
• Objects/Teoh
• Conventions & Recommendations
•Supervisory Bodies
•Qantas v Christie
•Predates
•Already doing it
•The Key Section
•Same Concept
Good Faith Bargaining