\fBargaining for agreements and conflict resolution Chapter 13 Cengage Learning Australia hereby permits the usage and posting of our copyright controlled PowerPoint slide content for all courses wherein the associated text has been adopted. PowerPoint slides may be placed on course management systems that operate under a controlled environment (accessed restricted to enrolled students, instructors and content administrators). Cengage Learning Australia does not require a copyright clearance form for the usage of PowerPoint slides as outlined above. Learning objectives 1. Define enterprise bargaining. 2. Explain the development of enterprise bargaining. 3. Define good faith bargaining and explain its limitations. 4. Explain the relationship between enterprise bargaining and industrial action. 5. Identify forms of industrial action. 6. Identify different mechanisms for conflict resolution. 7. Discuss whether workplace conflict is disappearing. Enterprise bargaining is: the process of negotiation generally between the employer, employees and their bargaining representatives to reach an agreement covering terms, conditions and wages at the workplace. Key terms An enterprise agreement under the Fair Work Act 2009, is a collective agreement made between an employer and employees represented by a bargaining agent, such as a trade union. An enterprise can mean any kind of business, activity, project or undertaking as per the definition in s. 12 of the Fair Work Act 2009. A bargaining impasse occurs when parties who are bargaining for a new agreement cannot agree on matters under negotiation and are deadlocked. Key terms, cont... Industrial action is a legitimate means for unionised employees to push their claims during enterprise bargaining process when an impasse has been reached by the parties, and it is also a legitimate tactic for an employer to use during bargaining. Prohibited content refers to clauses in an agreement that will invalidate agreement and which relate to issues to do with trade union rights and membership, discrimination and limits on an employer's right to use labour hire or contractors. Key terms, cont... Permitted matters refers to clauses in an agreement that will invalidate agreement and which relate to issues to do with trade union rights and membership, discrimination and limits on an employer's right to use labour hire or contractors. Non-permitted matters do not meet the 'matters pertaining' criteria under the Fair Work Act 2009, are not unlawful terms but are not enforceable by the Fair Work Commission. Awards Legally binding document that set the minimum terms, conditions and wages for all job classifications in an industry as well as regulating the unions, employers and employer associations in that industry. Still widely used in hospitality and retail SMEs in Australia. Since 2010, there are 122 modern industry awards, rather than previous multiplicity of awards. Conciliation and arbitration Conciliation Is an 'evaluative process' in which parties to a dispute, with assistance of a conciliator, identify issues in dispute, develop options, consider alternatives and attempt to reach an agreed outcome. Arbitration Is a quasi-legal method of dispute settlement in which an independent third party considers arguments and evidence of both sides and then makes a legally binding determination. Only for proscribed industries. Award restructuring Became a key mechanism for changing relationship between management and workforce, and for overall labour market reform. Involved industrial tribunal reviewing awards with a view to improving efficiency of industry and offering workers more fulfilling and better paid jobs (Macken 1989). Centralised wages fixing system Refers to wages determined by a federal tribunal, via Wage cases, and inserted into industrial awards that covered occupation classifications in specific industries and was system used in Australia for most of 20th century. Decentralised wage system Enables individual enterprises to initiate workplace changes and link these to wage increases reflecting productivity changes at workplace, rather than relying on tribunal. National Wage Cases Heard at federal industrial tribunal with submissions from concerned parties - trade unions, employer associations, employers and other community organisations - about minimum wages before handing down a decision on annual minimum wage increases. Mostly reflected in awards. What is an agreement? A registered agreement sets out terms and conditions of employment between an employee or a group of employees and one or more employers (Fair Work Ombudsman 2013a). Fair Work Act 2009 promotes a return to collective bargaining via trade unions acting as bargaining representatives for their members and other employees. A greenfields agreement Is an enterprise agreement - either single-enterprise or multi-enterprise - that is made in relation to a new enterprise of the employer or employers before any employees are employed. A multi-enterprise agreement 'Is made between two or more employers (that are not all single interest employers) and employees employed at time the agreement is made and who will be covered by the agreement' (Fair Work Ombudsman, 2014). The employees may be represented by a trade union (FWC 2013a). Single enterprise agreement Is most common form of agreement. Is made between a single employer (or two or more single interest employers under s. 248) and 'employees employed at the time agreement is made, and who will be covered by the agreement' (Fair Work Ombudsman 2014). The employees may be represented by a trade union. Enterprise agreement bargaining Negotiations for single-enterprise agreements (as well as multi-enterprise agreements) are subject to applications for protected industrial action and other orders from the Fair Work Commission to facilitate bargaining process (Forsyth 2009; FWC 2013b). Protected industrial action is industrial action that carries immunity from civil liability under state or territory law. Good faith bargaining Is a process of negotiation premised on genuine exchange of information and an intent to reach an agreement. The better off overall test (BOOT) Allows for any modern industry award condition, other than those covered by 10 National Employment Standards (NES) - to be to be traded-off or excluded as long as total remuneration and/or benefits received by employee leave them better off than if the conditions remained the same. The 10 National Employment Standards (NES) 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. Hours of work. Parental leave. Flexible work for parents. Annual leave. Personal, carer's and compassionate leave. Community service leave. Public holidays. Information. Termination of employment and redundancy. Long service leave. Formal dispute resolution systems FWA - mediation, conciliation and arbitration resolution of conflict and ratification of agreements. Federal Court and High Court - appeals and other matters, e.g. unfair dismissals. Department of Employment - information on workplace relations. Alternative dispute resolution types open door policy mediation: passive or evaluative fact-finding advisory arbitration mini-trials mediation and arbitration peer review internal ombudsman voluntary 'voice' systems collective bargaining non-union grievance systems Grievance systems Features of grievance procedures: strike free flow of dispute resolution from lower to higher levels avoid costs and delays associated with external resolution decision making at the appropriate level in the organisation participatory, involving employees, unions and management at the workplace. Industrial conflict Is not disappearing and remains a part of the Australian workplace, irrespective of the legislative regime at any given time