Good faith or bad?

What have meat and good faith got in common? Apparently not much if we are to believe Commissioner Hampton and the AMIEU!

A meat packaging company was negotiating a new enterprise agreement (EA) with its employees through a joint consultative committee (JCC). None of the committee members were bargaining representatives under the Fair Work Act 2009 (Cth) (FW Act). There was an equal number of employee representatives and management, the union were only permitted in belatedly, their log of claims was barely discussed and meetings were held at the discretion and convenience of the management. The union sought a delay in the ballot on the draft agreement and orders requiring the employer to meet and genuinely discuss the union’s log of claims.

The case is odd for a number of reasons. For example:

1. The employer had already put a draft EA up for vote, which was rejected by its employees before this dispute;
2. Despite the union being the only authorised bargaining representative, the employer, in effect, ignored the union’s role and dismissed the union’s log out of hand;
3. The JCC did not have any authorised bargaining representative as a member of the committee – a curious oversight that any IR strategist ought to have corrected;
4. There seemed to be little direct communication with the employees to give them ownership of the JCC negotiations – so it appears the JCC had little credibility, which the prior rejection of an EA suggests.

Six months ago, the above information alone, would have led to good faith bargaining orders being made and additional orders delaying the vote. But that is not what occurred here and the emerging law is helpful for employers.

What Commissioner Hampton held was:

1. The requirement of the employer that the union meet in the context of the JCC was not bad faith;
2. The failure to provide a comprehensive response to the union log is not bad faith;
3. The structure of the JCC was not bad faith;
4. Refusing to meet the sole bargaining representative alone was not bad faith;
5. But it was bad faith to be so dismissive of the union log and only engage them after it was a done deal in the JCC.

Based on Commissioner Hampton’s findings, it appears he was a reluctant participant in the granting of good faith bargaining orders and orders delaying the vote.

What are the lessons for employers from this case?

1. It is sensible to develop a JCC on site that deals with site issues and where JCC members are representative of the workforce;
2. Where such a JCC exists it is an appropriate forum for EA negotiation;
3. It would be helpful if some of those JCC members were bargaining representatives for some of their fellow workers – this assists with obtaining the respect of the workforce;
4. Direct communication with your workforce in such circumstances is not bad faith and in fact desirable;
5. When the union wish to attend, treat them with respect, respond promptly, sensibly deal with their log of claims, explain why their claims are unreasonable and communicate this to your workforce; and
6. Never act as if you are scared of the union – it is your business and you must own your fear!

Andrew Douglas is the Managing Director of Douglas LPT, an integrated legal, HR, recruiting and training business. He is the Editor-in-Chief of the loose leaf publication, The OHS Handbook, and writes on workplace law issues such as Industrial Relations, Employment law, OHS, Equal Opportunity, Privacy, Surveillance and Workers Compensation. He is the principal of the legal division of Douglas LPT and appears in courts, tribunals and Commissions throughout Australia.