The unions’ new bargaining ploy

How often in union negotiations around an enterprise agreement does the union refuse to negotiate with a company official, complaining that his or her conduct is bullying and unacceptable? The answer is: often. It is one of the first plays in old organiser’s play books.

But what if the union, its organiser and some employees push harder and the employer delegate is removed from the bargain, and his or her role within the business forever damaged?

What happens if the pursuit by the union, involving allegations of bullying, leads to the employer constructively dismissing the employer delegate (removal of key responsibilities – in effect a demotion) or an investigation is undertaken by the employer that could lead to termination?

This is not far fetched. Again, when the parties are entrenched in their position and things are becoming personal – it is possible, at some sites probable.

But what possible risk is there for the business if it removes the employee acting as the employer delegate from the negotiating team?

The new case of Jones v Queensland Tertiary Admission Centre says – employer beware.

As hinted in earlier articles the new Adverse Action scheme is and will be a nightmare for employers.

All the employee has to demonstrate is that:

• An employee is exercising a workplace right or involved or participating in a workplace right, for example, a CEO or HR manager negotiating an enterprise agreement on behalf of an employee.
  
• The employer takes an adverse action, for example reduces the employees’ role or responsibility, or worse, moves to investigate with a view to discipline or terminate.

If the employee can demonstrate the above, the employee can:

• seek an injunction to stop the employer adverse action.
  
• obtain compensation and penalties against their employer.

But that would be hard to prove, I hear you say. The employee might be no good. The employee has to prove that an action taken was not in good faith and appropriate. Wrong!

Although, if the employee seeks an injunction the employee must establish there is a serious question to be tried, at the final hearing it is the employer (not the employee) who has to prove absolutely it acted in good faith. This is called the reverse onus of proof.

That means all the employee has to do is commence an action and then it is up to the employer to prove it isn’t true. What a strong negotiating chip.

Now remember, the union started this fight between the employer and its key negotiators and the employer ends up:

1. losing its key negotiator.
2. in court against its key negotiator who it can no longer sack and has to pay damages and penalties.
3. the employer has to prove it didn’t act improperly upon evidence raised by the union.
4. The union is now attacking your next delegate – it’s Groundhog Day.

What can you do to prevent this?

1. Train your negotiators fully.
2. Any attack upon your negotiator is bad faith bargaining – make application to FWA for good faith bargaining orders protecting your negotiator.
3. Always carefully document your dealings with the union – never let the union run the deal.

Unquestionably, unions will cheer this first case under the adverse action section of the Fair Work Act to obtain orders. It is time for employers to act strategically.

Andrew Douglas is the founder, principal lawyer and managing director of Douglas Workplace & Litigation Lawyers. Andrew is an experienced commercial litigation and workplace lawyer, who acts both as a solicitor and advocate.