Good Faith Bargaining in Australia A Comeback for Old Players?

1. Good Faith Bargaining in AustraliaA Comeback for Old Players? Geoff McGill Visiting Industry Scholar WRC , Sydney University WA IR Society Convention, Oct 2009.

2. The Wider Context- a bigger playing field. • Transformation of industrial relations and the labour market since 1970s; • Benefits evident in resilience of economy and the labour market in response to GFC; • Labour market adjustment via timely and decentralised decisions at company and workplace level especially on hours of work; • Aggressive fiscal stimulus without fear of wage inflation; • National union and employer groups played no role; federal industrial tribunal no longer an arm of economic policy.

3. Behind the Transformation • Opening of the Australian economy and micro economic reform – economic reform drives labour market reform; • Deliberate and sustained policy of decentralisation of the IR and wage determination system by Keating and Howard; • Shift to enterprise bargaining supported by union and business leaders; • But shift occurred during a period of long term decline in union bargaining power

4. Trade Union Membership Industrial Relations Reform Act,1993. Workplace Relations Act,1996

5. Trade Union Members ’000s Source: ABS 6310.0

6. AIRC – Dispute Notifications Source: AIRC Annual Reports

7. A come back for old players? Maybe?.....but there’s a lot of ground to catch up, and the rules have changed!

8. GFB- the WA “form guide” • Legislation designed to give unions a boost; • Some wins in the early rounds; • Employers started to play at another ground; • Still see some good games in the local public sector comp.

9. Rules of GFB game in WA Act • WA Labour Relations Reform Act 2002 • Restoring primacy of collective agreements • GFB to encourage open and honest negotiations • General duty to bargain in good faith • Specific provisions require application by one or both parties • Not an exclusive code • No scope for protected industrial action • Consistent with long standing practice of the tribunal to support fair and orderly negotiations

10. Highlights from the early rounds • Hanssen Pty Ltd vs CFMEU • Melville Motors vs Metal Workers’ Union • Sealanes vs Shop Assistants’ and others

11. Match Summary • Private Sector • Reassertion of union role • Strong employer resistance • Enterprise agreement determined by tribunal • Pyrrhic victory for unions • AWA escape route • Erosion of WA jurisdiction

12. Highlights from Public Sector Comp • CSA dispute on service wide wages and conditions in 2003 • PTA and Rail, Tram and Bus Union • WA Police Union • Teachers’ Union • Firefighters’ Union

13. Match Summary • Protracted negotiations • Threat of disruption to services to the community • Employer application to prevent action and invoke GFB provisions • GFB duty in practice? • Declaration that bargaining has ended • Impact of application for enterprise order • Wider public interest and political context always important

14. WA Season in Review • GFB nests within significant powers of WAIRC on conciliation and compulsory arbitration • No scope for protected industrial action • GFB matters often overlap with applications under S44 seeking orders re industrial action • WAIRA not a fully developed system of enterprise bargaining

15. National GFB –Match Preview • Expect unions to start aggressively to unsettle opponents; • Claims unions have been supplied steroids; • Rule book could become extensive and complex; • Ref will blow the whistle early until game settles down; • “Thunderdome” format- no AWA escape route; • Remember, it’s a world game now.

16. GFB National Rules FWA s 228 Bargaining representatives must meet the good faith bargaining requirements (1) The following are the good faith bargaining requirementsthat 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

17. GFB National Rules S 228 (2) The good faith bargaining requirements do not require: (a) a bargaining representative to make concessions during bargaining for the agreement; or (b) a bargaining representative to reach agreement.

18. First Qtr Match Comments • Lot’s of action, some unions trying to set their own rules on GFB and relevant information; • Key role for tribunal - players looking for consistency from the ref; • Match preparation essential; • Beware of imports! • GFB not so new for older players; • Game pattern likely to be different.

19. A come back for old players? Maybe?.....but the rules have changed! • Impact of a generation of economic reform and structural change in economy irreversible. • Same forces rule out any turn around in union density. • Role and status of the federal industrial tribunal has fundamentally changed. Nonetheless the old players have still sign up for another season!!