Tough but fair

Employers, employees and unions must negotiate an enterprise agreement (EA) in good faith. In past articles, I have suggested that the US position – that any direct communications with your workers when there is a bargaining representative for the workers is unlawful – will not be followed in Australia.

Why?
1. Our legislation is different;
2. Our industrial landscape and history are different;
3. Our tribunal – Fair Work Australia (FWA) – has mature, experienced members who recognise industrial reality in Australia.

On May 5, 2010, the Full Bench of FWA agreed.

In CFMEU v Tahmoor Coal Pty Ltd [2010] FWAFB 3510, the CFMEU, as the bargaining representative of Tahmoor workers, argued it was bad faith for Tahmoor to:
1. speak directly and aggressively to workers about the history of the dispute with the CFMEU and put the company’s case to the workers;
2. write directly to workers at home; and
3. fail to notify the CFMEU of the company’s direct communications.

As a result, the CFMEU alleged that Tahmoor breached section 228(1)(e) of the Fair Work Act 2009 (Cth), which requires bargaining parties to refrain from capricious or unfair conduct that undermines freedom of association or collective bargaining.

The CFMEU sought bargaining orders from FWA preventing Tahmoor’s actions, including an order that Tahmoor must not put up for vote an enterprise agreement directly with the workers.

The Full Bench rejected the CFMEU’s argument, stating:

“Indeed, there is no evidence that any of the material provided to employees was misleading or that employees were threatened in any relevant way. Nor is there any reason to believe that the employee representatives did not themselves have adequate access to the workforce in relation to the bargaining process.”

The CFMEU and Tahmoor had been in dispute for some time. They were at an impasse. Tahmoor’s communications to the workers arose out of a desire to break the impasse.

“In those circumstances the conclusion was open… that it was not capricious or unfair conduct for Tahmoor to seek to explain its negotiation position to the employees directly.”

The communications did not attempt to mislead or misrepresent what had occurred. The proposals put to the employees were the same as those put to the CFMEU.

The Full Bench also took into account the fact that bargaining meetings continued during and after the employee meetings and that Tahmoor made various efforts for the CFMEU to consider its proposals.

The decision highlights the following issues:
1. Employers can communicate directly to their workers even when the union is the workers’ bargaining representative;
2. The communications must be honest. The communications cannot misrepresent or mislead the workers.
3. The robust Australian IR environment means that both employers and unions can strongly advocate their position;
4. It is permissible to put an EA up for a vote with the workers if you are at an impasse with the bargaining representative.

In short – business as usual for employers.

Andrew Douglas is the Managing Director of Douglas LPT, an integrated legal, HR, recruiting and training business. He is the Editor-in-Chief of the loose leaf publication, The OHS Handbook, and writes on workplace law issues such as Industrial Relations, Employment law, OHS, Equal Opportunity, Privacy, Surveillance and Workers Compensation. He is the principal of the legal division of Douglas LPT and appears in courts, tribunals and Commissions throughout Australia.