The resurgence of enterprise bargaining 04: starting the bargaining process

Jennifer Wyborn, Nicholas West-Foy
27 Jul 2023
Time to read: 3 minutes

With all the preparatory steps taken, it's time to put hard work into practice with the commencement of bargaining.

In our last article in our enterprise bargaining series, we took a look at the obligations to bargain in good faith when negotiating for a new agreement, as well as ensuring ongoing compliance with the workplace instrument that remains in force unless and until a new deal is struck. This article discusses what should be prepared for each bargaining meeting, and how they should be conducted.

Before the bargaining meeting

It's important that each bargaining meeting is held in an orderly and structured manner, and items for discussion are known in advance. Practically, this allows parties to come to a meeting prepared to put their position on the issues to be negotiated and ensures a focused discussion. There are many ways in which you can divide issues up for discussion at certain bargaining meetings, including

  • by bargaining representatives, that is, one bargaining representative puts their log of claims per meeting, with the other parties listening and limiting their input to asking clarifying questions. This approach would require additional meetings to be scheduled for actual bargaining to occur at the conclusion of the initial representative presentations;
  • by issue, that is, an identified set of issues are topics for discussion at each meeting, with bargaining occurring between representatives on those issues. The benefit to this approach is that it allows all parties to put their position on a matter and negotiate on it at the same time and in the same meeting. It can also assist in distilling the material issues in dispute between the parties, allowing those that are largely agreed to be quickly identified; and
  • in order of the issues as they appear in the enterprise agreement, that is, parties work their way through the enterprise agreement (starting at clause 1) and discuss concerns they have with the way it is currently drafted. This approach is usually best when there is a small change agenda and bargaining is confined to a discrete set of issues in an enterprise agreement where little to no change is proposed.

It's important to note that there is no preferred method to structure meetings and it may be that approaches change during the bargaining process. Either way, in preparing for any meeting, an agenda should be circulated, as well as any other bargaining material (such as proposed draft clauses provided by a representative) to ensure everyone can give genuine consideration of what the respective positions are and be able to respond.

During the bargaining meeting

We've already explored the need to form a bargaining team and decide on the roles and responsibilities of the members of that team. One vital role is that of the bargaining meeting chair. This person should act as independent of any bargaining representatives, their primary job is to ensure the bargaining meetings are conducted in an efficient and fair manner and in accordance with the agenda (a bit like the speaker in the parliament). This person's authority should be clearly communicated to all parties as well as the expectation that the manner in which they direct the discussion is to be respected.

It is crucial for communication during bargaining meetings to remain courteous and respectful at all times, this will ensure all parties are best placed to comply with their good faith bargaining requirements. There should also be scope to adjourn any plenary discissions to allow representatives to conduct separate discussions about the matters under consideration. Any such adjournment should, however, be reasonable and not be used as a tool to frustrate or stymie the bargaining meeting's progress. It will be up to the Chair to police this.

After the bargaining meeting

Shortly following the conclusion of a bargaining meeting, it is important that the outcomes and action items arising out of the discussion are documented and circulated to all parties. This will ensure that the expectations arising out of the meeting are clear and subsequent bargaining will proceed efficiently.

It is important parties give genuine consideration to proposals put forward by other bargaining representatives, in order to comply with good faith obligations. This doesn’t mean any party needs to agree with the proposal, or change their position on certain matters, but it does require that reasons for taking a position on certain proposals are provided to the party making them. Practically, this often occurs between bargaining meetings.

Once this is done, it will be a matter of repeating the same steps in preparation for the next bargaining meeting! With a bit of luck, by taking these steps, bargaining will progress as smoothly as possible. However, in the next few articles, we will take a look at what can go wrong during the bargaining process, and what you can do if something does go wrong.

Key takeaway

When it comes to bargaining, preparation is the key. Ensure you have completed the preliminary steps set out in the previous articles in this series and you will be well placed to begin.

When it comes to the meetings themselves, the Chair plays an important role to ensure they run smoothly, by covering the material on the agenda and making sure all representatives feel like they are treated fairly. For this reason, when choosing the Chair of your bargaining committee, make sure they are tough but fair.

Get in touch

Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.