Workforce Conference - Park Hyatt Good Faith Bargaining

1. Workforce Conference - Park HyattGood Faith Bargaining Stuart Wood, Henry Skene, Chris Gardner www.stuartwood.com.au hskene@abl.com.au chris.gardner@freehills.com 22nd September 2009

2. Good Faith Bargaining

3. Good Faith Bargaining Part 1: Stuart Wood • The key section • International will be relevant Part 2: Henry Skene • Context and Control Part 3: Chris Gardner • Negotiating Tactics

4. Part 1 Stuart Wood - Barrister • The key section • International will be relevant

5. 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.

6. The Key Section Fair Work Act 2009: s228 (1)(e) Refraining from capricious or unfair conduct that undermines freedom of association or collective bargaining

7. The Key Section Fair Work Act 2009: s228 (1)(e) Refraining from capricious or unfair conduct that undermines freedom of association or collective bargaining

8. The Key Section Fair Work Act 2009: s228 (1)(e) Refraining from capricious or unfair conduct that undermines freedom of association or collective bargaining

9. The Key Section Fair Work Act 2009: s228 (1)(e) Refraining from capricious or unfair conduct that undermines freedom of association or collective bargaining 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.

10. 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

11. 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]

12. The Key Section

13. The Key Section

14. Good Faith Bargaining • The key section • International will be relevant

15. International will be relevantPre-Fair Work Act International Law regarding GFB Australian Law

16. International will be relevantPost-Fair Work Act International Law regarding GFB Australian Law

17. International will be relevant

18. International will be relevant “[B]ut it would not be wise, we submit, for Fair Work Australia to look to US Labor laws for significant guidance on the way that our modern workplace relations system should be interpreted.” Stephen Smith, FWA Inaugural Sitting 1 July 2009

19. International will be relevant ILO U.S.A. • Objects/Teoh • Conventions & Recommendations • Supervisory Bodies • Qantas v Christie • Predates • Already doing it • The Key Section • Same Concept Australian Law

20. Good Faith Bargaining