Critical Essay: Good Faith Bargaining in Australia

Topics: Negotiation, Australian labour law, Employment Pages: 4 (2127 words) Published: November 1, 2014

As quoted by Julia Gillard, “Genuine, good faith bargaining at the enterprise level allows employees and employers to examine the way they work, discover new ways to improve productivity and efficiency, and share ideas that make workplaces more harmonious and flexible.” CITATION 14Se \l 3081 (ABC, 2008) One of the many objectives underlying the Fair Work Act 2009 is to achieve productivity and fairness in the workplace through the implementation of collective bargaining supported by good faith bargaining agreements and rules presiding industrial action CITATION Fai14 \y \l 3081 (Fair Work Ombudsman). The Fair Work Act 2009 places an important emphasis on good faith bargaining by both parties. Good faith bargaining can been defined as “negotiations in which two parties meet and confer at reasonable times, minds open to persuasion, with a view to reaching agreement on new contract terms” CITATION Cox09 \l 3081 (Cox, 2009). Cox determines that in essence it is the ‘method’ and not the ‘outcome’ that is highlighted in good faith bargaining CITATION Cox09 \n \l 3081 (2009). Good faith bargaining seeks to establish a structure for the bargaining process and to equalise the relationship of both parties; the ultimate goal is to provide assurance that both parties will work together to achieve a reasonable outcome concerning any grievances. Previously under Work Choices there was no obligation to bargain in good faith and employers could “unilaterally determine the conduct and outcome of negotiations” CITATION Aus14 \y \l 3081 (Fair Work Ombudsman). By contrast, the Fair Work Bill 2008 introduced the requirement for all parties to bargain in ‘good faith’. This essay will focus on how good faith bargaining, although good in theory, fails to achieve its purpose of ensuring that parties conduct themselves in a proper manner during negotiations. Based on this argument, I will seek to identify the key concepts of good faith bargaining and how the...

References: BIBLIOGRAPHY ABC, 2008. Gillard introduces Fair Work Bill. [Online] Available at: http://www.abc.net.au/pm/content/2008/s2429402.htm[Accessed 21 September 2014].
Allens, 2014. Focus: Workplace Relations. [Online] Available at: http://www.allens.com.au/pubs/wr/fowr13sep12.htm[Accessed 21 September 2014].
Australian Industry Group, 2009. Fair Work Act Provisions: The First 100 Days. [Online] Available at: http://www.aigroup.com.au/portal/binary/com.epicentric.contentmanagement.servlet.ContentDeliveryServlet/LIVE_CONTENT/Publications/Reports/2009/8217_Fair_work_act_first_100_days_web.pdf[Accessed 20 September 2014].
Cox, A., 2009. The Duty to Bargain in Good Faith. Harvard Law Review, Volume 7, pp. 11-29.
Fair Work Commission, 2014. Enterprise Bargaining. [Online] Available at: https://www.fwc.gov.au/awards-and-agreements/agreements/about-agreements/enterprise-bargaining[Accessed 19 September 2014].
Fair Work Ombudsman, n.d. Bargaining in good faith. [Online] Available at: http://www.fairwork.gov.au/employment/agreements/pages/bargaining-in-good-faith.aspx[Accessed 19 September 2014].
Fair Work Ombudsman, n.d. Enterprise Bargaining. [Online] Available at: http://www.fairwork.gov.au/about-us/policies-and-guides/fact-sheets/rights-and-obligations/enterprise-bargaining[Accessed 20 September 2014].
Fair Work Ombudsman, n.d. Industrial Action. [Online] Available at: http://www.fairwork.gov.au/about-us/policies-and-guides/fact-sheets/rights-and-obligations/industrial-action[Accessed 18 September 2014].
Floyd, L., 2009. Fair work laws: Good faith bargaining, union right of entry and the legal notion of "responsible unionism". Australian business law review, 37(4), p. 255.
The Australian Worker 's Union, 2012. Review of the Fair Work Act. [Online] Available at: https://submissions.deewr.gov.au/sites/Submissions/FairWorkActReview/Documents/AustralianWorkersUnion.pdf[Accessed 20 September 2014].
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