Q&A with Industrial Relations & Legal Adviser Malvin Khaira

Q: I am renewing my EBA and it has been difficult bargaining with the Union. Do you have any tips for me?

A: Dealing with the Union can either be a trivial or inconsequential experience for you, or a dreadful experience which you’re hoping ends before it starts. If you’re currently bargaining or intend to commence bargaining for an EBA, you should always be mindful of some very basic pointers mentioned below which can often be forgotten when you get into the intricacies of bargaining.

Firstly, your Business has basic operational requirements including the need to stay relevant and competitive in the industry. As a Director, you have obligations to ensure you act in the best interests of the Company. This includes not binding yourself to agreements that has potential to cause your business financial hardship.  You should therefore be very cautious not to agree to a proposal that could risk the survival of the business altogether.

Secondly, Bargaining is essentially negotiation of workplace rights and obligations between the employer and employee. It is not a process to validate broad scale Union objectives. Often, workers have realistic expectations and can understand an employer’s final position or are willing to reach a consensus that is workable for both the employer and employee. Do not let this harmony between yourself and the workers be derailed by the Union’s involvement.

Thirdly, it is essential that you maintain, if not increase your communication channels with workers and keep them in the loop of the Bargaining progress. If any incorrect or potentially misleading information has been provided to workers, you should clarify this immediately. You do not want workers having the false impression that your offer is inadequate.

As the employer, you are obliged to explain the Agreement to the workers and can do so as many times as you see necessary to ensure the correct understanding of the terms proposed. This can be through toolbox talks or company Barbeques. They do not have to be a special meeting for the sole purpose of explaining the Agreement. Remember, when you explain the Agreement to workers, there is no need for Bargaining Representatives such as a Union, to be present, as this is an obligation of the employer towards the employees. You should of course be mindful not to cross the line between ‘Explaining’ and ‘Bargaining’.

Communication channels should be made very clear and these channels should be utilized as much as possible, especially when Bargaining is on foot. If your workers have a particular concern which is shared across the board, you should seriously consider the options you have of alleviating those concerns. Remember, if you are having your workers best interests at heart and able to satisfy them with your proposed EBA, or at least made attempts to meet their proposals with the feasible options available to you, you have a greater likelihood of attaining a majority ‘Yes’ vote in favour of the EBA. This would then allow you to apply to the Fair Work Commission for the agreement to be approved, although the approval process is entirely another hurdle altogether.

If you are an MBA ACT Member who wants to negotiate or renew an EBA,  please contact me at mkhaira@mba.org.au or 6175 5900.