Good faith bargaining 'unfair for business': AMMA

The mining and resources sector has voiced its widespread concern about good faith bargaining under the Fair Work Act in a hard-hitting discussion paper that calls for “much needed” changes (see: Employers ‘getting on with bargaining’: Evans). Employer representative body Australian Mines and Metals Association (AMMA) said it would lobby for reforms after the discussion paper revealed companies were finding it increasingly difficult to negotiate all types of agreements.

The paper – Agreement or argument: what faith can we have in good faith bargaining? – reviewed the first 12 months of the Fair Work Act and made recommendations for sweeping changes.

“Following an extensive review of the operation of the FW Act’s good faith bargaining provisions, and as part of an ongoing longitudinal study into the impact of the Act, AMMA has made 22 recommendations to improve bargaining outcomes in the resource industry,” an AMMA spokesperson told HR Report. “AMMA believes its comprehensive set of recommendations is necessary in order for resource industry employers to have faith in the new good faith bargaining provisions and to maintain a competitive edge in what is a global resource economy. If the FW Act is to continue to promote collective bargaining over individual engagement, its good faith bargaining rules must deliver a negotiating framework that focuses on efficient outcomes for employers and employees.”

Employers’ time tied up with bargaining

AMMA members, who include major employers in the mining and resources sector, reported they had to devote more hours to enterprise bargaining; meeting and negotiating with other bargaining representatives; and to tribunal processes and bargaining-related tribunal applications. They said the new bargaining regime had led to greater union involvement in bargaining; having to negotiate with a larger number of bargaining representatives; employees taking more protected industrial action during bargaining, compared with bargaining periods under the WR Act; and unions demanding more union-specific clauses in enterprise agreements (EAs).

Respondents to AMMA’s member survey claimed unions were wasting no time pursuing union-specific clauses in EAs, in addition to other clauses that would have been prohibited content under the WR Act. For example, 76.5% said unions were now pursuing paid trade union training leave in their bargaining agendas; 64.7% said unions were pursuing right of entry clauses; 58.8% said unions were pursuing shop stewards’ rights clauses; and 52.9% said unions were pursuing payroll deductions of union fees.

Protected industrial action changes needed

AMMA called for a raft of changes to Fair Work laws covering protected industrial action. It recommended protected industrial action shouldn’t be available during enterprise bargaining unless the party seeking to take the protected industrial action demonstrated to Fair Work Australia it had embarked on and exhausted genuine bargaining and had reached a real impasse with the other bargaining representatives.

AMMA recommended the right to take protected industrial action should extinguish for employees earning an annual income above $113,800, ie the current unfair dismissal threshold. It recommended parties seeking to take protected industrial action should demonstrate their claims weren’t fanciful and, if the claims were conceded by the employer, that they would not be against the national or public interest.

AMMA also recommended that where notices of protected industrial action were given, employers should have the right to refuse to accept employees making themselves available for work after the notice had been provided to the employer, except where the employer agrees that work be performed as usual. “Where notice is given to take a form of protected industrial action, and that action is then not taken and no notice is given of its cancellation, that particular type of industrial action should not be able to be taken for the remainder of enterprise negotiations,” AMMA said.

Source: Thomson Reuters, HR Report, 4 November 2010. For the full issue, sign up for a FREE TRIAL of HR Report and other Thomson Reuters premium news services. Click here to sign up.

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