1. Good Faith Bargaining in Australia A Comeback for Old Players? Geoff McGill Visiting Industry Scholar WRC, Sydney University WA IR Society Convention, Oct 2009. 1

2. The Wider Context- a bigger playing field. Transformation of industrial relations and the labour market since 1970s; Benefits evident in resilience of economy and the labour market in response to GFC; Labour market adjustment via timely and decentralised decisions at company and workplace level especially on hours of work; Aggressive fiscal stimulus without fear of wage inflation; National union and employer groups played no role; federal industrial tribunal no longer an arm of economic policy. 2

3. Behind the Transformation Opening of the Australian economy and micro economic reform – economic reform drives labour market reform; Deliberate and sustained policy of decentralisation of the IR and wage determination system by Keating and Howard; Shift to enterprise bargaining supported by union and business leaders; But shift occurred during a period of long term decline in union bargaining power 3

4. Trade Union Membership Workplace Relations Act,1996 Industrial Relations Reform Act,1993. 4

5. Trade Union Members ’000s Source: ABS 6310.0 5

6. AIRC – Dispute Notifications Source: AIRC Annual Reports 6

7. A come back for old players? Maybe?.....but there’s a lot of ground to catch up, and the rules have changed! 7

8. GFB- the WA “form guide” Legislation designed to give unions a boost; Some wins in the early rounds; Employers started to play at another ground; Still see some good games in the local public sector comp. 8

9. Rules of GFB game in WA Act WA Labour Relations Reform Act 2002 – Restoring primacy of collective agreements – GFB to encourage open and honest negotiations General duty to bargain in good faith Specific provisions require application by one or both parties Not an exclusive code No scope for protected industrial action Consistent with long standing practice of the tribunal to support fair and orderly negotiations 9

10. Highlights from the early rounds Hanssen Pty Ltd vs CFMEU Melville Motors vs Metal Workers’ Union Sealanes vs Shop Assistants’ and others 10

11. Match Summary Private Sector Reassertion of union role Strong employer resistance Enterprise agreement determined by tribunal Pyrrhic victory for unions AWA escape route Erosion of WA jurisdiction 11

12. Highlights from Public Sector Comp CSA dispute on service wide wages and conditions in 2003 PTA and Rail, Tram and Bus Union WA Police Union Teachers’ Union Firefighters’ Union 12

13. Match Summary Protracted negotiations Threat of disruption to services to the community Employer application to prevent action and invoke GFB provisions GFB duty in practice? Declaration that bargaining has ended Impact of application for enterprise order Wider public interest and political context always important 13

14. WA Season in Review GFB nests within significant powers of WAIRC on conciliation and compulsory arbitration No scope for protected industrial action GFB matters often overlap with applications under S44 seeking orders re industrial action WAIRA not a fully developed system of enterprise bargaining 14

15. National GFB –Match Preview Expect unions to start aggressively to unsettle opponents; Claims unions have been supplied steroids; Rule book could become extensive and complex; Ref will blow the whistle early until game settles down; “Thunderdome” format- no AWA escape route; Remember, it’s a world game now. 15

16. GFB National Rules FWA s 228 Bargaining representatives must meet the good faith bargaining requirements (1) The following are the good faith bargaining requirements that a bargaining representative for a proposed enterprise agreement must meet: (a) attending, and participating in, meetings at reasonable times; (b) disclosing relevant information (other than confidential or commercially sensitive information) in a timely manner; (c) responding to proposals made by other bargaining representatives for the agreement in a timely manner; (d) giving genuine consideration to the proposals of other bargaining representatives for the agreement, and giving reasons for the bargaining representative’s responses to those proposals; (e) refraining from capricious or unfair conduct that undermines freedom of association or collective bargaining. (f) recognising and bargaining with the other bargaining representatives for the agreement 16

17. GFB National Rules S 228 (2) The good faith bargaining requirements do not require: (a) a bargaining representative to make concessions during bargaining for the agreement; or (b) a bargaining representative to reach agreement. 17

18. First Qtr Match Comments Lot’s of action, some unions trying to set their own rules on GFB and relevant information; Key role for tribunal - players looking for consistency from the ref; Match preparation essential; Beware of imports! GFB not so new for older players; Game pattern likely to be different. 18

19. A come back for old players? Maybe?.....but the rules have changed! Impact of a generation of economic reform and structural change in economy irreversible. Same forces rule out any turn around in union density. Role and status of the federal industrial tribunal has fundamentally changed. Nonetheless the old players have still sign up for another season!! 19