When an employer is bargaining with employees for a collective enterprise agreement under the Fair Work Act 2009 (Cth) (FW Act), it must meet good faith bargaining requirements in its dealings with other employee bargaining representatives, including unions.

A common situation in bargaining is where the employer fails to reach agreement of all employee bargaining representatives about a proposed agreement, and the employer decides to put the proposed agreement to a vote of relevant employees.

The bargaining representatives may assert this action amounts to a breach of the good faith bargaining requirement to refrain from capricious or unfair conduct that undermines freedom of association or collective bargaining.

What does the Fair Work Commission say?

The Fair Work Commission (FWC) has ruled that if an employer does not give all employee bargaining representatives a reasonable opportunity to discuss the employer’s latest proposal before the vote, then this may amount to a breach of the good faith bargaining requirements. In such a case, the FWC may order that the vote not proceed until this reasonable opportunity has taken place.

It is clear, however, that if negotiations for the proposed agreement have reached such a stage that it’s reasonable for the employer to put its proposal to a ballot to see if progress could be made, the good faith bargaining requirements will not be breached.

Recent ruling

In RAFFWU v Woolworths (2023), the FWC dealt with an application to restrain a major retail employer from putting a proposed agreement to a vote where one employee bargaining representative argued the employer had not given it a chance to discuss the proposed agreement with the employees it represented.

The employer delayed the provision of the new terms in the proposed agreement to the employee bargaining representative until the day before it was presented to employees as an agreement in principle on which they would be asked to vote. The FWC ruled this amounted to unfair conduct that undermined collective bargaining. The employer should have provided the proposed agreement at least 4 days before the workforce was asked to vote on it.

The FWC ruled it wasn’t reasonable to expect the employee bargaining representative to continue negotiations about the agreement during the access period (the compulsory 7-day period between the time of initiating the vote and the actual vote). If the employer agreed to changes, this would have created significant logistical issues.

The FWC believed that if the employer was open to genuinely considering the employee bargaining representative’s views about the terms that had not been previously communicated to them, it would not have taken the steps it did to lock in the terms of the proposed agreement and voting date by printing copies of, and developing material explaining, the terms of the proposed agreement.

The FWC therefore ruled the employer had not met the good faith bargaining requirements in the FW Act.

However, the FWC declined the application for an order to delay the vote by 2 weeks because:

• two union bargaining representatives covering 54% of the 15,060 employees supported the agreement and opposed delaying the vote; the representative seeking to block the vote represented 0.15% of employees;
• it was unlikely the employer and the representative would have reached agreement in relation to the proposed agreement over the course of 2 weeks; and
• the business was about to enter holiday season trading, which would reduce communication with employees.