Bargain in good faith or beware, firms told
COMPANIES that do not want to deal with unions have been dealt a significant blow after a landmark ruling that a BHP subsidiary was not complying with Labor's workplace laws because it was not genuinely considering union proposals.
Union leaders last night hailed the Fair Work Australia ruling, saying it was a major setback to employers unwilling to engage in proper negotiations with unions representing employees.
Workplace experts said the decision was significant as it was the first time a tribunal full bench had addressed at length what it meant for employers and unions to bargain in good faith under Labor's Fair Work Act.
The ruling confirmed that Endeavour Coal had not bargained in good faith with employees at the Appin mine in NSW. An estimated 70 supervisory, administrative and technical employees were represented by the Association of Professional Engineers Scientists and Managers Australia.
Catherine Bolger, the director of APESMA's collieries division, said the union originally sought to negotiate an enterprise agreement with the Appin mine in April 2010.
Three months later, the tribunal made a majority support determination that acknowledged that Appin employees wanted to bargain collectively. Under the act, once a majority support determination is made the employer is required to bargain in good faith.
After 12 meetings, an impasse was reached and the union subsequently succeeded in having Fair Work Australia rule that the company must adhere to bargaining orders. The company appealed to a full bench.
Where a majority support determination is made, the full bench said, there is an expectation that the employer will recognise the wishes of its employees to bargain collectively for an agreement, and enter into negotiations in an endeavour to reach an agreement.
Where this does not happen, a bargaining order may be sought to ensure that the obligation to bargain is fulfilled.
The full bench found that in many respect the company complied with its formal requirements by participating in meetings and responding to union proposals.
But it said it was open to the tribunal to find that the company was not showing a genuine endeavour to negotiate an agreement with the union.
It said the company had not had a collective agreement and would prefer not to have a deal. While participating in the bargaining process, it did not make any substantive contribution to the possible content of an enterprise agreement, or put up proposals.
"In these circumstances it was open to the commissioner, and appropriate on the evidence, to conclude that the good faith bargaining requirements envisioned by (the act) were not being met by the company, in that it was not giving genuine consideration to the proposals being put by APESMA," the full bench said.
Ms Bolger said the ruling was a "major blow for companies who think it is OK to simply go through the motions, with little interest in proper negotiations".
"This is a win for the idea of the fair go and will give millions of Australians reassurance that when they need to have a conversation with their employer about their pay and conditions, it will be in good faith," she said. Ms Bolger said the ruling recognised that companies needed to give genuine consideration to proposals, be clear about their position and conduct bargaining fairly.
A BHP spokeswoman said the company was examining the ruling and was not prepared to comment last night.