Good Faith Bargaining under the FW Act – Workforce 5 September 2011
Kamal Farouque
Maurice Blackburn Lawyers, Principal
1) One of the essential pillars of the Fair Work regime is the promotion of
enterprise bargaining.
2) There are four key features of this bargaining regime:
a) the abolition of a distinction between union and non-union agreements
coupled with the right of employers and employees to appoint bargaining
representatives of their choice to negotiate agreements
b) an obligation on parties to bargain in good faith and the ability of FWA to
facilitate that good faith bargaining by making bargaining orders
c) the ability of parties to engage in protected industrial action in support of
lawful claims in the enterprise agreement, a power which may terminated
/ suspended by FWA, if certain thresholds (such as threats to public
safety etc) are meet
d) an obligation on FWA to assess in an approval process, amongst other
things, whether the agreement meets a better off overall test against a
safety net
3) Many of these features of the bargaining regime will be familiar to industrial
relations practitioners from the various versions of Federal Industrial
statutes (ie the Keating Industrial Relations Act, the Reith Workplace
Relations Act, even Work Choices and Work Choices modified by Forward
with Fairness) which have regulated IR since the early 1990s.
a) For instance, the ability of parties to take protected industrial action,
subject to oversight by the Commission, was feature of the IR Act, WR Act
and even Work Choices
b) Assessing whether agreement meets a safety net threshold was a feature
of all legislation except the original version of Work Choices.
4) But some of the changes in the Fair Work bargaining regime which introduce,
a greater a degree of innovation.
5) In that regard, the abolition of the distinction between union and non-union
agreement combining with bargaining representative innovation, has:
a) firstly, swept away many arid arguments about the type of agreement
being bargained for, and;
b) secondly, grounded representation during bargaining, in the notion of
individual rights, thereby sweeping away further arid, and in my view
unproductive questioning, about the ability of employees to have their
representative of choice (such as a union), represent them at the
bargaining table.
6) But perhaps the Good Faith Bargaining innovation in the Fair Work Act, at
least in the early days, drew the greatest amount of attention, and perhaps in
some quarters, apprehension.
7) This concern was probably based on two matters.
8) Firstly, a sense that the Good Faith Bargaining Obligation was a concept
which had no precedent in Federal Australian IR Law.
9) Secondly, a sense that the concept was inspired by American industrial law
and would import American industrial jurisprudence into Australian law.
Whether Precedent in Australian Industrial Law
10)On the first issue, it is true that the concept of Good Faith Bargaining had no
strong roots in Federal industrial law. But it is not without precedent. In
that regard, the bargaining regime under the Industrial Relations Act 1988 (IR
Act) allowed the Commission to make an order ‘ensuring that the parties
negotiating for an agreement…do so in good faith’1 - s 170QK.
a) Perhaps the clearest encapsulation of its was contained in the judgment of
SDP Hancock in Re Australian Rail, Tram and Bus Industry Union (SDP
Hancock, 30 September 1994, Print L5622) where his Honour
summarised the “good faith obligation in the following terms:
… bargaining in good faith does not require a willingness to make
concessions. It is consistent with adopting a "hard line". Equally, it
does not imply moderation of demands. It does imply a preparedness
to consider seriously offers and proposals made by the other side and
to take account of arguments; but if, having done these things, a
bargaining party is unmoved, it may still be bargaining in good faith.
b) This exposition of the principles of the GF requirements under s 170qk of
the IR Act, is not dissimilar to the approach encapsulated in s 228 of the
FW Act.
c) But the potential scope of this provision was substantially diminished in a
decision of a Full Bench of the Australian Industrial Relations Commission
in Ashai v AMWU (1995) 59 IR 385.
d) In any event, it was abolished in the subsequent Reith Workplace
Relations Act 1996.
11)But regardless of a lack a long history in Federal industrial law, it is clear that
the Good Faith Bargaining requirements have not by themselves dramatically
redrawn the industrial landscape in Australia.
12)In my view, this is because Good Faith Bargaining requirements are as set of
moderate and well calibrated requirements – that are not hugely onerous in
terms of the burdens they place on the parties.
1
IR Act s 170QK
13)They are process requirements which the vast majority of parties engaging in
bargaining - will readily meet.
14)In that regard, the following observation of the majority judgement in JJ
Richards v TWU [2010] FWAFB 9963, albeit said in different context, bear out
this view:
[64] It is a matter of the direct experience of the Tribunal that the
overwhelming majority of enterprise agreements are concluded without
any application for a protected action ballot order being made, let alone
protected action being taken. Typically, in many if not most cases,
bargaining commences consensually at the invitation of either an employee
bargaining representative or the employer and proceeds for a time in good
faith on both sides before the terms of an agreement are concluded, which
agreement is then put to a vote of employees. In the typical case both
parties have bargained in good faith at all times and have been “genuinely
trying to reach an agreement” from the outset of their involvement in the
bargaining.
15)At this stage, it would be usefully to actually recap what the Good Faith
Bargaining Requirements under the FW Act actually constitute and how they
are overseen.
16)In terms of substance, the Good Faith Bargaining requirements have two
elements.
17)Firstly, they contain positive obligations in the following terms:
(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.
18)Secondly, the Good Faith Bargaining Requirements are expressly confined or
restricted so as not to not require:
a) a bargaining representative to make concessions during bargaining
b) a bargaining representative to reach agreement on the terms that to be
included in the agreement
19)In terms of process, a bargaining representative may only apply to FWA for a
Good Faith Bargaining Order after:
a) it has given the other party a written notice setting out its concerns;
b) given the relevant bargaining representative a reasonable time to
respond to those concerns; and
c) considers that the other party has not responded appropriately to those
concerns
20)FWA can waive the requirement to provide written notice if appropriate (eg
if there are urgent circumstances).
21)Furthermore, in terms of FWA’s role, amongst other criteria, before making a
Good Faith Bargaining Order, it must amongst be satisfied that:
a) that the a bargaining representative is not meeting the Good Faith
Bargaining requirements
b) and that it is reasonable in all of the circumstances to make the order.
22)This later ground means that FWA retains a discretion as to whether a Good
Faith Bargaining Order should be made.
23)So, not only are the Good Faith Bargaining Requirements themselves
moderate and well calibrated, but the process by which they are obtained are
similarly well calibrated:
a) A Bargaining Representative must articulate their concerns to the other
side before making an application to FWA. (In at least some instances, this
will not doubt cause the other party to adjust its position, thereby making
an application to FWA ultimately unnecessary )
b) FWA retains a discretion as whether a Good Faith Bargaining Order will
be made (so the result is not merely mechanical upon establishing a
contravention of the Good Faith Bargaining Requirements. Whether a
Good Faith Bargaining Order is made depends on FWA’s assessment of
whether it is reasonable to do so in all of the circumstances.
24)I will now deal with some of the FWA case law relating to Good Faith
Bargaining with a view to identifying some of the emerging trends.
The Leading FWA Decision – CFMEU v Tahmoor
25)The leading FWA Decision in relation to Good Faith Bargaining is a Full Bench
decision in CFMEU v Tahmoor [2010] FWAFB 3510.
26)In Tahmoor, the Full Bench dealt with two grounds put by the CFMEU, as to
why the Employer had not met the Good Faith Bargaining requirements. The
argument put by the CFMEU was that, Tahmoor had failed to meet the
requirement to refrain from capricious or unfair conduct that undermines
FOA or collective bargaining. The argument was put for two reasons:
a) Firstly, Tahmoor conducted meetings directly with employees between
14 – 23 December 2009, including mailing material to employees’ homes.
At the meetings and in the mailed material, Tahmoor explained its
position on the negotiations to the employees. The CFMEU was not given
advance notice of the meetings.
b) Secondly, Tahmoor terminated the bargaining meetings in January 2010
to put its proposed agreement to employees in a ballot2
This was against a factual backdrop whereby bargaining between the CFMEU
and Tahmoor had extended over a significant period of time
2
Tahmoor [25].
27)The Tahmoor Full Bench, has dealt decisively with an early concern
expressed about the Good Faith Bargaining Requirements in the FW Act by
some quarters.
28)The concern was that the American labour law prohibition on “direct dealing”
with employees in circumstances where a Union was the certified
representative, would obtain currency in Australia. This early concern was
provided some impetus by what was merely recommendation by SDP Drake
in AMWU v Transfield, where her Honour recommended, amongst other
things, that Transfield not attempt to bypass the Bargaining Representative,
by contacting the Union’s members.
29)But, the Full Bench in Tahmoor has made clear that direct communications
are not impermissible under the Good Faith Bargaining requirements. The
Full Bench dismissed the CFMEU’s objections. The Full Bench held:
a) Whether a party observes or fails to meet the Good Faith Bargaining
requirements will “rarely be decided by reference to one action or series
of actions” 3
b) On the CFMEU’s objection to Tahmoor’s conduct of an Employee Meeting,
the Full Bench held that the fact that Tahmoor may have been trying to
influence employee views does not mean that Tahmoor was engaging in
capricious or unfair conduct or conduct that undermined FOA.
c) In reaching this view, the Full Bench appeared to pay weight to a number
of factual findings4, namely
i) After a long period of negotiation, the parties were simply unable to
agree on an enterprise agreement
ii) The proposals put to the employees at the employee meetings were
the same as those put to the CFMEU at the bargaining meetings
iii) The employee meetings were not oppressive for employees (albeit it
is noteworthy that the Full Bench noted the aggressive presentation of
3
4
Tahmoor [24]
Tahmoor [29]
the proposal to employees but did not interfere with the finding at
first instance that this conduct was not out of character for the
relevant industry)
iv) The slides and material were not deceptive
v) The CFMEU had adequate access to the workforce in the bargaining
process
vi) Bargaining meetings between the CFMEU and Tahmoor continued
during and after the employee meetings
30)The decision of the Full Bench in Tahmoor is consistent with the approach
generally taken by FWA on the question of direct communications between
Employers and Employees. In that regard, the decisions of FWA on this
matter have indicated that Good Faith Bargaining requirements will not be
read as imposing an exclusive communication relationship between
employees and their bargaining representatives:
a) In LHMU v Mingara [2009] FW 1442 (1 December 2009), a decision of VP
Watson, the Union sought a Good Faith Bargaining Order, which amongst
other things, allowed it to attend meetings between the Mingara Club and
employees about enterprise bargaining. The order was sought in
circumstances where:
i) Mingara called a meeting of its employees on 21 November to discuss
Award Modernisation and the proposed enterprise agreement
ii) Mingara stated purpose of the meeting was to provide information to
stay and allay concerns about changes to conditions of employment
iii) The Union organiser sought to attend the meeting and was denied
attendance at the meeting
iv) The first negotiating meeting was to be held in early December 2010
b) In these circumstances, VP Watson held that Mingara had not offended
the Good Faith Bargaining requirements as
i) The holding of a preliminary information meeting with staff in the
absence of a bargaining representative was not inconsistent with
Good Faith Bargaining requirements
ii) Mingara had not refused to meet with the Union or denied the Union
relevant information
iii) The mere fact that Mingara refused to allow a Union Official to attend
the meeting was not sufficient to offend the Good Faith Bargaining
Requirements
c) VP Watson observed that :
i) Good Faith Bargaining requirements do not preclude concurrent
communication with employees
ii) An employer is free to meet with its employees to discus matters
relevant to enterprise bargaining
iii) Widespread communication is to be encouraged – not regulated or
monopolised
d) But his Honour’s decision does suggest, not unexpectedly, that direct
communications with employees, combined with a refusal to meet and
communicate with a bargaining representative, will constitute a failure to
meet the Good Faith Bargaining requirements ‘
31)But, and if I can make this observation, it is also clear that, direct
communications between Employers and Employees may give rise to Good
Faith Bargaining Orders if, the direct communication is attendant with
statements which contravene Freedom of Association obligations or
undermine Collective Bargaining.
32)So, the fact of direct communications per se, is unlikely to contravene the
Good Faith Bargaining requirements. But direct communications of a certain
character may do so.
33)This much is clear from the recent FWA decision in TWU v Veloia [2011] FWA
5691 (Asbury C) – which I will discuss shortly
Tahmoor Full Bench Continued
34)But first I want to complete my analysis of the Tahmoor Full Bench decision.
You will recall, that another objection raised by the CFMEU was that
Tahmoor had terminated the bargaining meetings to put its proposed
agreement to employees in a ballot5.
35)The Full Bench held that that:
a) While there may be circumstances where the conduct of a ballot without
the agreement of other Bargaining Representative, may, constitute a
Bargaining Representative each of the Good Faith Bargaining
Requirements.
b) This will not always be so; and
c) There is no absolute requirement for the agreement of a Bargaining
Representative prior to the conduct of the ballot.
36)The Full Bench also set out a number of different touchstones by which to
assess whether a unilateral employer instigated ballot would breach each of
the Good Faith Bargaining Requirements:.
37)These included:
a) Whether there was an “impasse” in negotiations (the test of an “impasse”
had been applied at first instance);
b) Whether the employee Bargaining Representatives had had a reasonable
opportunity to discuss the Employer’s latest proposal; or
c) Whether negotiations had reached such a stage that the employer was
entitled to put its proposal to ballot to see if progress could be made.
38)But whatever formulation of the test was applied, the Full Bench was
satisfied that Good Faith Bargaining Requirements were not being offended
in the facts of the Tahmoor matter. In that regard, it is important to recall,
that the parties had been negotiating for a considerable period of time. (over
a 1 year)
5
Tahmoor [25].
39)But there have been other instances, where FWA has issued orders delaying a
ballot.
40)In the TWU v Veloia matter, TWU notified protected industrial action. The
protected action was notified after Velioa had indicated that it was going to
put an agreement to a ballot (a position was apparently acquiesced to by the
TWU albeit the TWU indicated it would oppose the agreement in the ballot).
41)Veolia issued a bulletin to employees stating that it had received advice that
the protected industrial action was unlawful. Subsequent ambiguous
replacement bulletins were issued by Veolia regarding the lawfulness of the
industrial action. A replacement bulletin suggested that the protected
industrial action may be unlawful. A second replacement bulletin suggested
that the company would not take any action against staff who engaged in the
notified action and that the action “ would be treated as protected industrial
action”.
42)FWA accepted Veolia’s defence that it had not sought to intentionally mislead
employees about the lawfulness of the protected industrial action. However,
FWA held that this was not the end of the matter. FWA considered:
a) The relevant aspect of the Good Faith Bargaining requirements that a
Bargaining Representative was required to meet was to refrain from
capricious or unfair conduct that undermines FOA or Collective
Bargaining. This test was broader than merely assessing whether a party
intended to mislead.
b) The right to take protected industrial action was a fundamental matter
c) The issuing of the first bulletin was unfair (albeit not capricious) in that it
undermined the ability of union members to participate in collective
bargaining to the full extent provided under the Fair Work Act.
d) The first bulletin was issued with the intention of discouraging employees
from participating in protected industrial action and appeared to have had a
result in discouraging at least some employees from doing so.
e) The issuing of two further Staff Bulletins did not correct the first statement
with sufficient clarity
f) An employer has a right to communicate directly with employees and put a
proposed agreement out to a ballot of employees, in circumstances where
some or all bargaining representatives do not agree with that course of action.
g) But in taking these steps, the employer cannot make incorrect or ambiguous
statements about the rights of employees in the bargaining process, including
the right to take protected industrial action.
h) The situation could be remedied by delaying the ballot by a period to restore
the TWU to the same position as it would have been prior to the issuing of the
Veolia’s incorrect bulletin
i) Hence FWA issued an order delaying the conduct of the ballot by 23 days.
43)There of course have been other matters, where FWA has delayed unilateral
employer instigated ballots:
44)In ASU v QTAC [2009] FWA 53 (Richards C), QTAC bargained directly with
employees and then put the agreement out to ballot. The ASU sought Good
Faith Bargaining Order.
a) FWA held that QTAC had excluded the ASU from meetings and
discussions at a time when the agreement contended was not fixed or
immutable and further, had failed to recognise the ASU as a bargaining
representative. FWA made a Good Faith Bargaining Order requiring
QTAC to cease conducting the ballot and meet with the ASU for four
meetings to be conducted over a two week period.
45)In NUW v Defries Industries [2009] FWA 88 2 (Whelan C), Defries put an
agreement out to ballot. FWA found that this action was inconsistent with the
Good Faith Bargaining Requirements (ie it was unfair conduct undermining
FOA and Collective Bargaining) in circumstances where;
a) Defries circulated the agreement for a vote without telling the NUW (in its
capacity as a Bargaining Representative) that it was going to do so
b) Defries did not give the Union a reasonable time to propose any
amendments to the document
c) Defries did not respond to the proposal put by the NUW regarding the
agreement
46)In ASU v Global Tele Sales [2011] FW 3916 (Watson VP – 22 June 2011), his
Honour declined to make a Good Faith Bargaining delaying a ballot. In that
matter,:
a) On 31 May 2011, Global issued a NERR and made a presentation to
employees about a proposed agreement;
b) Between 6 – 13 June conducted Q&A sessions with employees;
c) On 15 June notified employees of its intention to conduct a formal ballot
on the agreement on 23 June 2011;
d) On 16 June, the ASU contacted the Employer and requested that it cancel
the ballot;
e) On 17 June, the ASU and the Employer met and the ASU conveyed its
claims and reitereated the request of the ballot;
f) On 2O June Global responded to the ASU’s claims and proposed a further
meeting on 22 June;
g) The ASU applied for a Good Faith Bargaining Order, seeking amongst
other things, a delay of the ballot;
h) The application was dismissed by FWA;
i) In doing so, Vice President Watson observed that Global had not delayed
in conducting the agreement making process.;
j) However, his Honour was clearly of the view, that such speed, was not a
basis to find a contravention of the Good Faith Bargaining Requirements
in circumstances where Global had complied with the time limits under
the Act for agreement making;
k) Further, his Honour placed some weight on the fact that the ASU first
made contact 16 days after the commencement of the bargaining, and that
by this stage, the agreement making process initiated by Global had
preceded a significant extent.
Scheduling of Meetings / Timely Response to Proposals
47) Many of the cases to which I have already referred to have dealt with matters
relating to attendance at meetings or timely response to proposals in
circumstances where there is other Employer conduct at issue – for instance
a unilateral Ballot.
48)Perhaps unsurprisingly only a few cases deal exclusively with the scheduling
of meetings or timely response to proposals. This is because most parties
will attend meetings or respond to proposals. These obligations are readily
discharged.
49)But there have been cases where Good Faith Bargaining Orders have been
issued by FWA on the scheduling of meetings and timely response to
proposal grounds alone. For instance, in TWU v United Resource Management
[2010] FWA 8765 (Cambridge C – 12 November 2010), FWA issued a Good
Faith Bargaining Order in circumstances where, over two months after being
provided a Draft Enterprise Agreement by the Union, the Employer had not
responded to the Union’s draft and the parties had not met for further
negotiations.
50)Commissioner Cambridge was not prepared to regard the employer’s
conduct as justifiable on the basis that it constituted “hard or inflexible
bargaining”. A Good Faith Bargaining Order was made which required the
employer to respond to the Union’s proposal and for the parties to attend a
series of meeting over a defined period. In that regard, FWA appears to have
declined to a make a Good Faith Bargaining Order requiring the parties to
meet until agreement is reached, on the basis such an order would introduce
a degree of compulsion about agreement making, not contemplated by the
Good Faith Bargaining Requirements or the FW Act generally.
51)It is also clear that FWA is not precious about its own conciliation ! In
Queensland Nurses Union v TriCare [2010] FWA 7416, FWA held that a
decision by an employer to decline an offer by FWA for further conciliation
under a s 240 proceeding, did not constitute a failure to attend and
participate in meetings at reasonable times – and consequently was not
inconsistent with the Good Faith Bargaining Requirements.
Non-Union Bargaining Representatives
52)But is of course the case the Unions are not the only form of employee
Bargaining Representative under the Act. How have non-Union employee
Bargaining Representative fared? Unsurprisingly, there are few applications
made by Employee Bargaining Representatives.
53)One Employee Bargaining Representative has his application dismissed as he
failed to fulfil the pre-requisites for making the application – ie provide
written notice of his concern to the other relevant bargaining
representatives (in this instance, two other unions) See (E Morcom [2009]
FW 694 (Watson SDP, 20 October 2009).
54)In Bowers v Victoria Police [2011] FWA 2862 (Commissioner Smith – 13 May
2011), an employee Bargaining Representative (who was a serving police
officer) sought a Good Faith Bargaining Order requiring Victoria Police to
provide him paid leave to prepare for and participate in enterprise
bargaining negotiations. The Police Federation of Australia (PFA) was
another Bargaining Representative but none of the PFA bargaining team was
a serving officer who needed to relieved from duty.
55)Commissioner Smith found that:
a) Victoria Police were prepared to adjust the Sgt Bowers roster to allow
him to attend meetings. Consequently, he did not consider the refusal to
provide paid leave as motivated by any desire to prevent the employee
from attending bargaining meetings.
b) An Employee acting as a Bargaining Representative was a voluntary act;
and
c) Mere refusal to provide an Employee Bargaining Representative paid time
office - did not contravene the Good Faith Bargaining Requirements
Employer Applications
56) And what of employer applications? There have been a few employer
applications for Good Faith Bargaining Orders. How have they fared?
57)In Capral v AMWU & CEPU [2010] FWA 3818 (Spencer C - 20 May 2011), FWA
heard an Employer Good Faith Bargaining application contemporaneously
with two scope order applications made by Unions. Bargaining for a single
agreement which covered productions and maintenance employees has been
preceding for a significant period of time (about 8 months). During the
negotiations, scope had been discuss.
FWA found that in the negotiations,
the Employer had explained its position on scope and urged the Maintenance
Unions to resolve their concern promptly. However, bargaining had
continued to proceed on the basis of a single agreement and no scope order
application had been made until the Employer put the agreement out to a
ballot.
58)At that point, the Maintenance Unions made a scope order application to
FWA. The Employer made a Good Faith Bargaining Order application
seeking, amongst other things, to prevent the Unions making a further scope
order application until the ballot was completed.
59)FWA dismissed the scope order or application on finding that the
Maintenance Unions were not meeting the Good Faith Bargaining
Requirements. For the same reason it issued a Good Faith Bargaining Order
preventing the Unions from making a further scope order application until
completion of the Ballot.
60)FWA appears to have concluded that a late decision by the Maintenance
Unions to press Scope Orders after having participated in negotiations a site-
wide enterprise agreement – represented a sudden act that undermined the
Good Faith Bargaining requirements in circumstances where they had been
put on notice, early, as to the availability of making Scope Order application
ie they had been put on notice about this mechanism at about the time
bargaining commenced.
61)In TMS v MUA [2009] FWA 290 (16 September 2009), TMS sought orders
against the MUA requiring it to provide an explanation and rationale for all
its claims and a response to its proposals.
62)Commissioner Thatcher declined to make this order. Relevant to the
Commissioner’s decision was his view that the parties were experienced
industrial negotiators and they were parties were familiar with the issues.
Further, the Commissioner noted that the parties had four planned meetings
and that in light of this, it would be unproductive to require the Union to
provide a significant amount of written detail that may be not required after
the parties had met and clarified their various claims, options and
preferences.
What of American Labour Law Jurisprudence
63)Returning to early issue in my paper – what has been the fate of American
labour law jurisprudence on good faith bargaining under the FW Act?
64)It appears not to have obtained significant traction. In FSU v Commonwealth
Bank [2010] FWA 2690, Commissioner Smith declined to deal with US case
law, noting that there were differences in the American and Australian
statutory schemes.
65)The decision is also notable in another respect. Commissioner Smith found
that the Commonwealth Bank’s granting of a unilateral pay increase to
employees during the course of negotiations contravened the Good Faith
Bargaining Requirements. However, the reason the Tribunal made this
finding, was the inconsistency crystallised by the granting of a unilateral pay
increase, having regard to the Bank’s position in negotiations with the Union,
– namely that it had to reach agreement on conditions before it could discuss
wage increases.
66)Rather than a unilateral pay increase per se – the inconsistency in the Bank’s
position in its direct dealings with employees compared to its position in
bargaining – was the basis of the decision that the Bank had engaged in unfair
conduct undermining collective bargaining. An order was made requiring
the Bank to advise employee Bargaining Representatives of any decision to
change its position of not considering increasing wages to employees.
67)The decision by Smith C in FSU v ComBank, to decline to consider US case law
represented a departure from a previous, albeit, interim decision, in AMWU v
DTS [2009] FWA 1854, where reference was made to American case law.
68)However, the approach in FSU v ComBank, is consistent with the approach of
the Full Bench decision in Tahmoor where it was observed that:
“It would be undesirable to read into the [Fair Work] legislation concepts
which do not already appear it in for the purpose of explaining its
operation. That approach is likely to lead to error in the construction and
application of the provisions”.
Summary
69)In conclusion, the experience of Good Faith Bargaining requirements under
the FW Act can readily be summarised as follows:
a) The requirements are moderate, well tempered and focused on process
b) The vast majority of industrial parties do not appear to have had difficulty
meeting the requirements – in essence they encompass good bargaining
practice
c) What it has achieved is temper the some of the more excessive bargaining
conduct
d) American industrial jurisprudence on Good Faith Bargaining has not
found a great degree of traction