Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
Workplace Relations Amendment (Good Faith Bargaining) Bill 2003
Schedule 1 Amendment of the Workplace Relations Act 1996

   

1  After section 170MK

Insert:

170MKA   Good faith bargaining

             (1)  A negotiating party to a proposed agreement must take part in negotiations and must negotiate in good faith and genuinely try to reach agreement with the other negotiating party or parties.

Note:          The issue of whether a negotiating party is negotiating in good faith with the other negotiating parties was considered by Justice Munro in Morris McMahon & Co Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union , PR931192.

             (2)  This section is not to be taken to require a negotiating party to:

                     (a)  agree on any matter for inclusion in an agreement; or

                     (b)  enter into an agreement.

             (3)  For the purposes of subsection (1) “negotiating in good faith” includes:

                     (a)  agreeing to meet face-to-face at reasonable times proposed by another party; and

                     (b)  attending meetings that the party had agreed to attend; and

                     (c)  complying with negotiating procedures agreed to by the parties; and

                     (d)  subject to appropriate undertakings as to confidentiality, disclosing relevant financial information, including executive remuneration, for the purposes of negotiations; and

                     (e)  stating a position on matters at issue, and explaining that position; and

                      (f)  considering and responding to proposals made by another negotiating party; and

                     (g)  adhering to commitments given to another negotiating party or parties in respect of meetings and responses to matters raised during negotiations; and

                     (h)  dedicating sufficient resources and personnel to ensure genuine bargaining.

             (4)  For the purpose of subsection (1) a party must not:

                     (a)  capriciously add or withdraw items for negotiation; or

                     (b)  refuse or fail to negotiate with one or more of the parties; or

                     (c)  in or in connection with the negotiations, refuse or fail to negotiate with a person who is entitled under this Part to represent an employee, or with a person who is a representative chosen by a negotiating party to represent it in the negotiations; or

                     (d)  in or in connection with the negotiations, bargain with, attempt to bargain with, or make offers to, persons other than another negotiating party, about matters which are the subject of the negotiations.

170MKB   Management of good faith bargaining

             (1)  For the purposes of section 170MKA, the Commission may make orders to:

                     (a)  ensure that a negotiating party negotiates with another negotiating party; or

                     (b)  ensure that negotiating parties to a proposed agreement negotiate in good faith; or

                     (c)  promote the efficient conduct of negotiations for a proposed agreement; or

                     (d)  otherwise facilitate the making of an agreement.

             (2)  In determining what orders (if any) to make, the Commission:

                     (a)  must consider whether a negotiating party has negotiated in good faith pursuant to the obligations imposed by section 170MKA; and

                     (b)  may consider:

                              (i)  proposed conduct of any of the parties (including proposed conduct of a kind referred to in paragraph (a)); and

                             (ii)  any other relevant matter.

             (3)  Without limiting the generality of subsection (1), the Commission may make orders that a negotiating party take, or refrain from taking, specified action, including:

                     (a)  requiring a negotiating party to adhere to commitments given to another negotiating party or parties in respect of meetings and responses to matters raised during negotiations; and

                     (b)  setting time limits for the completion of negotiations in respect of a proposed agreement.

             (4)  The Commission may not make an order which will:

                     (a)  prevent a negotiating party from trying to reach an agreement with another negotiating party; or

                     (b)  require a negotiating party to:

                              (i)  agree on any matter for inclusion in an agreement; or

                             (ii)  enter into an agreement.