workforce conference - park hyatt good faith bargaining

Workforce Conference - Park Hyatt

Good Faith Bargaining

Stuart Wood, Henry Skene, Chris Gardnerwww.stuartwood.com.au [email protected]@freehills.com

22nd September 2009


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


Refraining fromcapricious or unfair

conduct that underminesfreedom of association orfreedom of association or

collective bargaining

The Key Section


Refraining fromcapricious or capricious or unfair



The Key Section


Refraining fromcapricious or unfaircapricious or unfair



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 sectionThe key section

International will be relevantInternational will be relevant


Pre-Fair Work Act

Australian Law

International Lawregarding

GFB

International Lawregarding

GFB


Post-Fair Work Act

Australian Law


“[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


ILO U.S.A.

• Objects/Teoh

• Conventions & Recommendations

•Supervisory Bodies

•Qantas v Christie

•Predates

•Already doing it

•The Key Section

•Same Concept

workforce conference - park hyatt good faith bargaining

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