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UpdatesMar 25, 2011

22 common bargaining tactics – and how to deal with them: Part One

The good faith bargaining framework is process orientated. However, a number of Fair Work Australia rulings show that FWA will be slow to interfere in legitimate tactics undertaken by parties during the bargaining process.

This makes negotiation tactics more important than before the commencement of the Fair Work Act. You need to consider what tactics you will use in negotiations – and what strategy you will adopt to counter tactics used by other bargaining representatives.

By Charles Power

Dear Reader,

Today, Charles is going to start getting stuck into the practicalities of the bargaining process by discussing 22 common bargaining tactics.

He’ll not only look at how you can use these tactics to your advantage – he’ll also show you strategies you can use when when other bargaining representatives use them against you.

His analysis of these 22 tactics (and how to counter them) will be split into two articles – he’ll discuss 11 in today’s Bulletin and 11 in next Wednesday’s.

So make sure you keep an eye out for Part Two in your inbox next week!

Happy reading!

Until next time…

Claire Berry

Claire Berry
Workplace Bulletin

And now over to our editor-in-chief Charles Power…

22 common bargaining tactics – and how to deal with them: Part One
By Charles Power
Editor-in-Chief, Employment Law Practical Handbook

On Wednesday, I showed you how to achieve an enterprise agreement in 4 months with just 8 fortnightly meetings. So the next logical thing to talk about in our exploration of the bargaining process is the tactics you may use or encounter.

The good faith bargaining framework is process orientated. However, a number of Fair Work Australia rulings show that FWA will be slow to interfere in legitimate tactics undertaken by parties during the bargaining process.

This makes negotiation tactics more important than before the commencement of the Fair Work Act. You need to consider what tactics you will use in negotiations – and what strategy you will adopt to counter tactics used by other bargaining representatives.

Today, I’ll go over 11 of the most common bargaining tactics and in next week’s Bulletin I’ll show you 11 more:

TacticWhat is this tactic trying to elicit in the other party?How can this tactic be countered (without seeking FWA intervention)?
Delay, stallingImpatience, a desire to get the deal done, encouraging further concessions.Work out the party’s deadline or create a need for the other party to act now.
If it is close to the nominal expiry date for the agreement, you could say that you will not commit to back pay employees (based on terms of new agreement).
Or you could simply do nothing. Then explain to employees that it is the bargaining representatives who are stalling and holding up the agreement process.
Preconditions for negotiationsEncourages concessions, to get talks going.Out the tactic, and call the bluff with humour i.e. if you want to negotiate, negotiate!
Claimed need to revert to a higher authority before party can agreeUncertainty and fear, encouraging further concessions.Obtain a commitment to represent case to decision-maker as forcefully as possible. Be clear who the decision makers are.
Claim that a position is universal standard that party cannot change
This can also be construed as bad faith bargaining.
Thwarts rational discussion.Question the legitimacy of the standard and produce counter legitimacy of your own.
Appeal to experts or precedentThwarts rational discussion.Use the precedent in parallel cases to your own advantage.
Insist on acceptance of negotiation items as a packagePrevents discussion about value of individual items.Insist on issues to be presented and argued for item by item. Elements of the package need to be explained.
Insist on negotiation of items individuallyThwarts the process of conceding items only in return for concessions from other parties.Get what you want, bit by bit.
Throw in an extra demand at the end of a protracted negotiation when agreement is in sightCreates fear that investment into achieving agreement will be lost.Out the tactic, and call the bluff with humour.
Silence when listening to presentation of positionCreates psychological pressure on presenter.Stop after first statement or question. Don’t fill in silence gaps by saying something that will be regretted.
Walking outCreates uncertainty and antagonism.Out the tactic, and call the bluff with humour.
Veiled threatsCreates fear and uncertainty.Re-focus on the issue at hand. You cannot factor in a risk that is unknown.

Regards,

Charles Power

Charles Power
Editor-in-Chief
Employment Law Practical Handbook

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