Bargaining about an agreement with employee organisations, such as a union, must be conducted in good faith.
Good faith bargaining
If involved in good faith bargaining, bargaining representatives must:
- recognise and bargain with the other bargaining representatives
- attend and participate in meetings at reasonable times
- disclose relevant information (other than confidential or commercially sensitive information) in good time
- respond to proposals made by other bargaining representatives in good time
- consider the proposals of other bargaining representatives and provide reasons for responses to those proposals
- refrain from capricious or unfair conduct that undermines freedom of association or collective bargaining.
Negotiating - is it compulsory?
Once bargaining has started, if a bargaining representative doesn't seem to be bargaining in good faith, the other bargaining representative can ask Fair Work Australia to decide whether or not good faith bargaining is being followed.
If not, Fair Work Australia may order the bargaining representative to take certain action.
Signing an agreement - not compulsory
While an employer might have to bargain about a new agreement, they don't have to sign one if they don't agree to the terms. This is the same for the employees and their representatives.
Bargaining in good faith is about the process and conduct of bargaining, not about the decisions made.
Working with bargaining representatives
Both the employer and employees have the right to be represented in the bargaining process.
If bargaining is planned for a proposed agreement, the employer must give their employees notice within 14 days that the employees have the right to be represented. The Notice of employee representational rights that must be given is set by the law.
The notice explains that the employee must give the employer a copy of the document showing they have appointed a bargaining representative.
Employees can choose their own representative, which could include an employee who will be covered by the agreement.
Generally speaking, if an employee doesn't choose their own representative and the employee is a member of a union, then that union will be the default bargaining representative for the employee.
An employee’s bargaining representative must be free from control or improper influence from the employee’s employer, or another bargaining representative.
Important! Employers cannot refuse to bargain with an employee's bargaining representative.