Good Faith Bargaining Notes

Labour Law Lecture 2nd June: Good Faith Bargaining: Parties have to consider and respond to the proposals. Have to take it seriously. Each party has to recognise the role and authority of the other party's bargaining representative and must not undermine the authority of the other in the bargaining. Would undermine the whole process. Would basically sabotage things. Employers still have freedom of speech but they have to watch what they say about the bargaining and about the union. Can't do anything to undermine the authority of the bargaining process or the person bargaining for the union. Prohibition on undermining the bargaining process. Covers all communication on matters relating to the bargaining. - employer would be wise to say nothing or nearly nothing about the bargaining process s4(3) duty of good faith does not prevent a party communicating a statement of fact or an opinion reasonably held about an employers business or statement of affairs. Intended to keep employers happy, because some employers say in the bargaining they're wanting to instigate new work processes... making business more efficient... genuine reasons why they would like to refer to its own workers. Employers need to balance s4(3) against their obligations in s32. Statutory interpretation, s32 has always been regarded as superior or trumping s4(3). In terms of stat interp, later provisions in a statute are considered stronger or superior to inconsistent earlier provisions in the same statute. Specific provisions are considered superior to more general provisions. S32(6) in 2010 added to clarify things a bit. Came into force April 1st this year. Didn't really clarify anything. If anything probably gives employers a false sense of security. Political cosmetic section rather than actually doing anything that it purports to do. To avoid doubt, this section does not prevent an employer from communicating with the employees during collective bargaining, including the employers proposals for the collective agreement... as long as consistent with s4. s32(1)(e) requires the disclosure of information of the parties of any information necessary for substantiating or supporting claims or responses to claims in the bargaining process. If the information is of a confidential nature, then s34 makes provision for a neutral third party to take a look at it. Good faith bargaining. Other kinds of behaviour can breach good faith (overseas case law). e.g. Constantly shifting your approach on stuff during bargaining, switching positions, going back on previously agreed positions, lodging new and surprising claims at the last minute. Sometimes the parties may not reach agreement. Impasse. All the claims have been discussed, no agreement on them. The parties are not required to bargain past genuine impasse. S32(2) duty does not require a union and employer to continue to meet about proposals that have been considered and responded to.

Buy the full version of these notes or essay plans and more in our Labour Law Notes.