Has Good Faith Bargaining grown some teeth or gone too far this time?

The recent decision of Victorian Ambulance Union Incorporated v Health Select Pty Ltd t/a Health Select [2021] FWC 1434, 31 March 2021 in which the parties were ordered under the good faith bargaining (GFB) provisions back to the bargaining table has been welcomed by unions and criticised by employers.

The employer argued that after 5 meetings and in their opinion no ability to reach an agreement that the parties had reached an impasse -which would have entitled them to simply stop bargaining or ‘put the agreement out to vote’. FWC disagreed.

Each GFB case is different and determined on the circumstances of each bargaining but there are certainly things that employers can do to ensure that bargaining is determined more on your terms and less allowing the ‘tail to wag the dog’ as occurred in this case. These are:

1. plan out a bargaining agenda – publicise it and then stick to it;

2. put out detailed communications after each meeting and specifically note what each bargaining party needs to do for the next meeting or when matters have been agreed or held over to another meeting;

3. publicly ‘call out’ bargaining representatives who are ‘not ready’ to deal with or respond to issues as per the agenda;

4. take the time to clearly and publicly announce (eg bargaining minutes or other communication forum) the parties are close to reaching an ‘impasse’ and what will be required to be done to avoid such an impasse –(too often employers seem to transition to the later stage from the first within the same instead of separate meetings); and

5. rely on the agenda, your previous communications and the two step impasse process to affirm any decision to declare an impasse has been reached.