In CEPU v Tyco FWA has ruled that unions must genuinely try to reach an agreement in seeking a protection ballot order.
The employer opposed the ballot as they believed there were strong grounds to show the union was not genuinely trying to enter an agreement as the union had “non negotiable” proposed terms for a new agreement, aspects of the agreement did not comply with the national construction code, and refused an offer from the employer to view financial records showing the unions unwillingness to bargain.
The union was required to disprove the allegations raised by the employer. SDP O’Callaghan found that the union was not able to point to any evidence to show that they were genuinely trying to reach agreement. There was very limited material before him to make a decision. SDP O’Callaghan said the union failed to show evidence of the claims, any effect of the claims and the bargaining process.
Early indications show that the FWA will require clear evidence of genuinely trying to reach agreement. This is a difficult task. Employers must keep well documented meeting notes and records to have a hope of proving their case. Importantly – employers must remember that good faith bargaining goes both ways.