The procedural process relating to the approval of an Enterprise Bargaining Agreement (EBA) is quite strict and needs to be complied with in order for the EBA to be valid. This is a factor that the Fair Work Commission will take into consideration. Good faith bargaining is a term used to ensure that the procedural process in negotiating the final EBA is done so in a manner that is fair to both parties. These good faith bargaining rules apply to both the bargaining representatives of employees and employers. This article will summarise some of the good faith bargaining requirements.

Full Participation

A bargaining representative needs to participate fully in the process. This includes attending any meetings and also actively participating to represent the client’s issues. Responses must also be provided to the other party in a timely manner to ensure that the bargaining process continues to remain on foot and are not delayed vexatiously.

Full Disclosure

To ensure both parties have all the information to provide to the representees, full disclosure of all the relevant information needs to be displayed openly and promptly. This does also include an explanation of the effects of the EBA, particularly when it comes to employees.

Full Consideration

In order for bargaining to be an effective process, bargaining representatives need to make a genuine attempt to consider the proposals. This means that a bargaining representative cannot just simply deny any proposal, they do have an obligation to consider the advantages and disadvantages of the arrangement before coming to a conclusion.

Association

Bargaining representatives need to ensure that they do not undermine the laws relating to freedom of association. The parties affected by the EBA have the right to gather and discuss the proposed arrangement together with their representative.

Bargaining Orders

The provisions relating to the bargaining of the EBA are put in place to ensure that there is no abuse of power and that all parties are kept accountable throughout the process. The Fair Work Commission can order a bargaining order in case there are bargaining disputes. This order will outline the actions that need to be made in order to ensure bargaining can continue smoothly. If a bargaining order is not addressed and a party continues to contravene the other party’s rights, the Fair Work Ombudsman can step in to investigate the order and the deemed contravention.

There are legal penalties involved for a contravention, which may include the penalty of a monetary amount. If you have been issued with a bargaining order or believe the other party is not committing to the fair bargaining principles, it is best to speak to an expert employment lawyer so you can understand your legal position and options.

Key Takeaways

Good faith bargaining is an essential criteria to ensure that due process is enacted in the EBA negotiation process. Because of the importance of good faith bargaining, it is best to get legal advice to understand what your obligations might be when it comes to the negotiation process. Speak to one of our specialist employment lawyers to ensure you understand what your obligations are in the enterprise bargaining agreement process.

Kristine Biason
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