Joellen Riley, Consultant and Misa Han, Graduate Associate
Some employers are concerned about communicating directly with employees during enterprise bargaining.
Difficulties of communicating with a large workforce, objections from the union and the fear of breaching the good faith bargaining provisions in the Fair Work Act 2009 (Cth) (“FW Act”) are a few of the reasons why some employers prefer to channel their communication through the employee bargaining representatives.
However, as workplaces become more diverse and include members from a number of employee organisations as well as non-union members, it has become important to engage with employees directly. Having a clear communication strategy and being aware of the workplace law in this area will help employers gain employees’ trust during bargaining negotiations.
1. Plan and strategise
It is wise to have a clear plan for communicating with employees so as not to alienate employees and their bargaining representatives. In addition, miscommunication or direct dealing with employees could, in some circumstances, result in a good faith order from Fair Work Australia (“FWA”) and delay the enterprise bargaining process or prompt rejection by FWA of approval on the ground that the agreement has not been “genuinely agreed to”. Having a communication strategy for each step in the process, from the initiation of the enterprise bargaining process through to the approval of the agreement, can help an employer communicate more effectively with employees and avoid any legal or practical hurdles.
2. Directly communicate with employees
The introduction of the good faith bargaining provisions in the FW Act raised questions as to whether employers can communicate directly with staff during enterprise bargaining negotiations. Cases such as LHMU v Mingara Recreation Club Ltd  FWA 1442 and Lourdes Home for the Aged  FWA 1553 suggest that not only are employers allowed to directly communicate with their employees, but concurrent communication and discussions with employees should be encouraged as a good management practice. However, employers should note that these communications should not be accompanied by a refusal to meet and communicate with a bargaining representative as this could result in breach of good faith bargaining provisions.
Cases such as CFMEU v Tahmoor  FWAFB 3510 show that there is scope for employers to directly communicate with employees particularly when there is a long and complex history of negotiation. In this case, the coal company organised a number of meetings with employees during which the company informed the employees about its bargaining position. The company also mailed a package of material to employees’ homes, providing further information about its bargaining position. The Full Bench of FWA noted that in the particular circumstances of the case, there was no breach of good faith bargaining given that some forty or fifty meetings had occurred between the employer and the union and the bargaining meetings continued during and after the employee meetings. In the circumstances of the case, holding small group meetings was a legitimate way for the company to ensure maximum access to its workforce.
3. One size doesn’t fit all
As workplaces become more diverse, the “one size fits all” approach may no longer be effective in communicating with employees. For example, a growing number of workplaces now have employees from culturally diverse backgrounds or employees who speak English as a second language. This means that an employer may need to explain the proposed agreement in simple English, use an interpreter to explain the agreement or even make translated materials available. When the agreement covers young employees, employers may need to explain the agreement to both the employee and their parent or guardian. An employer may also need to provide a more detailed explanation of the agreement when negotiating with employees without a bargaining representative.
Addressing the various needs of employees is important not only to gain their support at the voting booth, but also to gain approval from FWA once the agreement is made. When determining whether to approve a proposed agreement, FWA must consider whether the employer took into account the different circumstances and needs of specific employees. Using communication strategies tailored to different employee groups could help an employer get through the final legal hurdle in getting the agreement approved.
4. Think about using a joint consultative committee
Increasingly, large workforces use a joint consultative committee to discuss a range of matters, from remuneration policies to the cafeteria menu. A joint consultative committee is typically made up of both employee and employer representatives and it can be a great forum for employers to directly communicate a bargaining position. In Australian Meat Industry Employees Union v T & R (Murray Bridge)  FWA 1320, the employer insisted on negotiating through its joint consultative committee rather than dealing directly with the union. The company’s joint consultative committee was made up of elected employee representatives and management, none of whom were bargaining representatives, and had been established for over 10 years. FWA noted that in the circumstances, it was “reasonable for the employer in a large workplace such as T&R Murray Bridge to utilise the joint consultative committee to consult with the broader workforce, hear and consider workplace concerns and seek feedback on proposed terms of any agreement”.
The company also gave the union advance notice of the meetings. This case shows that employers can use a joint consultative body to communicate its position during industrial bargaining, provided that the role of the union as the bargaining representative is genuinely recognised.
5. Be aware of direct negotiation dealings
Employers cannot bypass the good faith bargaining requirement by directly negotiating with employees. In AMWU v Coates Hire  FWA 3357, the employer sought to directly bargain with the employees when it reached a deadlock with the union. The company sent out to its branch managers a flyer entitled “Get Ready to Vote”, which offered to backpay a 4.5% pay increase if the agreement was approved. At the Union’s request, FWA issued a bargaining order to halt the voting until the employer put the offer to the bargaining representatives for consideration. This case suggests that an employer cannot bypass the bargaining representatives and offer a new bargaining item to employees as an inducement to seal a deal.
Communicating with employees during enterprise bargaining can be a challenging task. However, as workplaces become increasingly diverse, it is important that employers engage directly with employees, within legal bounds, to make the enterprise bargaining process as collaborative as possible.