Fair Work Australia (FWA) has made it clear that it will not tolerate surface bargaining tactics used by companies in negotiations with their employees, in a landmark ruling handed down on Thursday.
The ruling found that in the Endeavour Coal Pty Ltd v Association of Professional Engineers, Scientists and Managers, Australia case, Endeavour (a subsidiary of BHP) had not bargained in good faith with employees at the Appin mine in New South Wales.
As a result, Appin employees had not been able to achieve an enterprise bargaining agreement for more than two years.
“FWA’s ruling is a major blow for companies who think it is OK to simply go through the motions, with little interest in proper negotiations with employees”, said Director of the Collieries Division of the Association of Professional Engineers, Scientists and Managers Australia (APESMA) Ms Catherine Bolger.
“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.”
“This is about respect. Let's not forget the huge contribution employees make to companies. it is very important that employees are treated with due respect”, said APESMA CEO Chris Walton.
“This ruling is significant because it is the first time FWA has addressed at length what it means to bargain in good faith. It recognised that companies involved in bargaining need to give genuine consideration to proposals, to be clear about their position and conduct bargaining in a fair way.”
“With this result, we now hope that BHP will do the right thing and live by its corporate values and bargain in good faith,” said Ms Bolger.
This case has its origins back in April 2010 when APESMA sought to negotiate an enterprise agreement with Appin mine for a group of professional employees.
On 8 July 2010 FWA made a majority support determination that acknowledged that Appin Staff did want to bargain collectively. Under the Fair Work Act 2009, once a majority support determination is made the employer is required to bargain in good faith.
In the absence of clear progress, APESMA returned to FWA who issued a subsequent ruling in September 2011 finding that BHP was not bargaining in good faith and that the case would need to proceed to hearing.
On 4 January 2012, FWA found that BHP had not been bargaining in good faith and ordered Appin to outline what it could agree to; provide APESMA with information essential to bargaining; and take steps to promote bargaining.
BHP subsequently launched an appeal to that decision, leading to this ruling that it had not bargained in good faith.
Bargain in good faith or beware, firms told , The Australian, Friday 23 March 2012.