Transcript Document

How the parties bargain: the nature and reach of
Good Faith Bargaining (GFB)
• GFB obligations in s. 228
• Centrepiece of bargaining framework
• Bargaining orders (s. 229) & other mechanisms
• Important role for FWC in oversight & enforcement of GFB
RMIT University
1
июл.09
авг.09
сен.09
окт.09
ноя.09
дек.09
янв.10
фев.10
мар.10
апр.10
май.10
июн.10
июл.10
авг.10
сен.10
окт.10
ноя.10
дек.10
янв.11
фев.11
мар.11
апр.11
май.11
июн.11
июл.11
авг.11
сен.11
окт.11
ноя.11
дек.11
янв.12
фев.12
мар.12
апр.12
май.12
июн.12
Number of applications made
Applications for bargaining orders, monthly total
18
16
14
12
10
8
6
4
2
0
RMIT University©24/04/2020
2
RMIT University©24/04/2020
Other services
Arts and recreation services
Health care and social assistance
Education & training
Public administration & safety
Administrative and support services
Professional, scientific and technical services
Rental, hiring & real estate services
Finanical & insurance services
Information media & telecommunications
Transport, postal and warehousing
Wholesale & retail trade
Construction
Electricity, gas & water
Manufacturing
Mining
Agriculture, forestry & fishing
Number of applications made
Applications for bargaining orders, by industry
90
80
70
60
50
40
30
20
10
0
3
RMIT University©24/04/2020
Procedural matter
Order not made
Order made
Matter resolved in whole or in part
Application adjourned indefinitely
Application withdrawn
Lodged only
Don't know
Number of applications made
Applications for bargaining orders, by outcome
140
120
100
80
60
40
20
0
4
Assessing the impact of the GFB obligations
• Useful in facilitating bargaining
– ‘I suppose the good faith bargaining provisions sort of provided an initial
push for the company to get along and actually come to the bargaining
table …’
• ‘Shadow effect’, i.e. lodgment of application (or threat)
sufficient to alter other party’s bargaining conduct
• One employer’s view:
– GFB is ‘a tool, [but really] it’s … what people work around.’
RMIT University©24/04/2020
5
Assessing the impact of the GFB obligations (2)
• Union concerns about the limits of GFB:
– ‘At the end of the day the good faith bargaining provisions can be used to
bring people to the table, can make them put certain information on the
table, but … they don’t seem to assist in any way in terms of actually
getting to some sort of outcome.’
– ‘we really believed we would get a couple of [bargaining] orders that we
were seeking … [but] if the bar has to be so incredibly high, then what’s
the point?’
– Particular concerns re 3rd parties not at the bargaining table; & employer
“direct dealing” & “surface bargaining” tactics/conduct
RMIT University©24/04/2020
6
Facilitating bargaining by assisting parties
to resolve disputes
• Dispute resolution by FWC under s. 240
• Conciliation/mediation – arbitration only if all parties agree
• The most utilised of the Part 2-4 mechanisms (60.2% of
all applications)
RMIT University©24/04/2020
7
RMIT University©24/04/2020
июн.12
май.12
апр.12
мар.12
фев.12
янв.12
дек.11
ноя.11
окт.11
сен.11
авг.11
июл.11
июн.11
май.11
апр.11
мар.11
фев.11
янв.11
дек.10
ноя.10
окт.10
сен.10
авг.10
июл.10
июн.10
май.10
апр.10
мар.10
фев.10
янв.10
дек.09
ноя.09
окт.09
сен.09
авг.09
июл.09
Number of applictaions made
Section 240 applications, monthly total
300
250
200
150
100
50
0
8
RMIT University©24/04/2020
Other services
Arts and recreation services
Health care and social assistance
Education & training
Public administration & safety
Administrative and support services
Professional, scientific and technical
services
Rental, hiring & real estate services
Finanical & insurance services
Information media & telecommunications
Transport, postal and warehousing
Wholesale & retail trade
Construction
Electricity, gas & water
Manufacturing
Mining
Agriculture, forestry & fishing
Number of applications made
Section 240 applications, by industry
450
400
350
300
250
200
150
100
50
0
9
Section 240 applications, by outcome
350
300
Number of applications
250
200
150
100
50
0
Don't know
Lodged only
RMIT University©24/04/2020
Application
withdrawn
Application
adjourned
indefinitely
Matter resolved in
whole or in part
Procedural matter
Dispute not settled
Dispute settled
10
Assessing the impact of FWC dispute resolution
in bargaining
• Mostly used by “repeat players: unions & large, unionised
employers
• Motivations for using s.240:
–1. to finalise agreement or overcome impasse
– ‘… we had reached a point where we weren’t making any progress in
the negotiations, and we were really… seeking to have somebody with,
I suppose with some authority and some… knowledge, assist with the
process…’
RMIT University©24/04/2020
11
Assessing the impact of FWC dispute resolution
in bargaining (2)
• Motivations for using s.240:
–2. to defuse hostilities
– ‘we made [the] application … because we were going through all this,
threats and intimidation. But also the meetings were just not at all
constructive… so we wanted to get into a forum where we had an
independent person sitting there because that tends to make people at
least make reasonable … responses. And so we got into that and we
went right through the claims. That was the first really civil meeting…’
–3. as an “exit strategy” & way of “saving face”
– ‘There may be times when we say to the employer… there’s an issue
where we actually … agree with the employer, but the membership
aren’t that keen on it and so, we’re going to take it to [FWC] and take
along a posse of members and see if we can get a Commissioner to tell
them that it’s not that bad after all and they can accept the offer…’
RMIT University©24/04/2020
12
Assessing the impact of FWC dispute resolution
in bargaining (3)
• Motivations for using s.240:
–4. to demonstrate all efforts are being made
–5. escalate the dispute
–6. no other option!
RMIT University©24/04/2020
13
Assessing the impact of FWC dispute resolution
in bargaining (4)
• Effectiveness of FWC’s role under s. 240:
–depends on willingness of parties to get involved
–difficult where high level of hostility
–preference for “interventionist” conciliators
–limits of conciliation – arbitration needed where employer
determined to resist
–lack of awareness among less experienced negotiators
RMIT University©24/04/2020
14
Promoting bargaining among historically excluded
workers: the Low Paid Bargaining (LPB) Stream
• Highly innovative set of provisions (Part 2-4, Division 9)
• Only 3 applications in 3-year period
• Aged Care Case – authorisation granted, but excluded employees on existing
agreements
• ANF GP clinics – authorisation rejected, “logistical difficulties”
• Union concerns that LPB won’t deliver improved wages/conditions for
employees (not enough compulsion on e’ers; no industrial action)
• Some unions have used alternative strategies, e.g. Equal Remuneration
Case
RMIT University©24/04/2020
15
Updated FWC case data (to 30.09.13)
Year to 30 June 2013
September quarter 2013
78 bargaining order applications
16
74 MSDs
16
15 scope
5
231 section 240
49
RMIT University©24/04/2020
16
Key findings & conclusions
• 1. The extent of FWC’s influence is greater than the case data
suggests – the “shadow effect”
• 2. FWC’s role & influence in bargaining is largely restricted to
unionised workplaces
• 3. Part 2-4 has different effects for “new”, as opposed to “mature”,
bargainers
RMIT University©24/04/2020
17
Key findings & conclusions (2)
• 4. FWC’s role is facilitative, not determinative
• 5. Parties value the FWC’s role highly
• 6. A need for greater awareness of the FWC’s dispute
resolution services – especially among new bargainers, &
individual bargaining reps
RMIT University©24/04/2020
18