What is fair bargaining in Australia?
Victorian Catholic school employers have tried to avoid proper bargaining by rushing out a “first and final offer” to staff before employees’ claims have been considered.
In fact, bargaining hasn’t even commenced!
When it does begin properly, it is governed by principles laid down in law.
Employers must sit down in good faith, hear workers’ claims, respond properly, and treat unions as genuine representatives ̶ not try to bypass or silence them.
When workers and employers sit down to negotiate an enterprise agreement, the law requires fair bargaining. This means both sides must follow a set of rules to make sure negotiations are respectful, transparent and genuine. Under the Fair Work Act 2009, this is called good faith bargaining.
Compare the pair.
Your rights in bargaining
Good faith bargaining doesn’t mean the employer has to agree to everything workers ask for ̶ but it does mean they can’t ignore you, stall negotiations, or act in ways that undermine your rights. Specifically, employers must:
meet at reasonable times to negotiate, not endlessly delay discussions
share relevant information that affects bargaining (unless it’s confidential or commercially sensitive)
respond properly to union proposals instead of brushing them off or leaving them unanswered
give reasons for their responses, so workers know why something is rejected
avoid unfair or manipulative conduct that sidelines workers or undermines union representation
recognise and negotiate with your union, as the bargaining representative for members.
Why it matters
These rules protect workers from being shut out of the bargaining process. They ensure that bargaining is not just a box-ticking exercise, and every claim is properly discussed. That’s important in education, where ES and teachers have different needs that need to be covered in detail. While good faith bargaining doesn’t guarantee a deal, it guarantees that your voice must be heard and that your union must be treated as a genuine partner in negotiations.
In most cases, if an employer fails to bargain in good faith, the union can take the issue to the Fair Work Commission, which has the power to step in and enforce fair play. But that is not possible in bargaining for a cooperative multi-enterprise agreement unless the employers agree. That is why the IEU has fought so hard for a Single Interest Authorisation (SIA). Due to the multi-employer model of the Victorian Catholic sector, we need an SIA to gain access to good faith bargaining orders and the right to apply for protected industrial action from the Fair Work Commission, essential if negotiations stall, as they have inevitably done.
Principles of fair bargaining in Australia
Under the Fair Work Act 2009 (Cth), parties to bargaining for enterprise agreements must bargain in good faith. Section 228 sets out six core obligations that bargaining representatives must fulfil:
attend, and participate in, meetings at reasonable times
disclose relevant information (unless it’s confidential or commercially sensitive) in a timely way
respond to proposals by other bargaining representatives in a timely way
genuinely consider proposals, and give reasons for responses
refrain from capricious or unfair conduct that undermines freedom of association or collective bargaining
recognise and bargain with the other bargaining representatives.
These principles are meant to ensure the bargaining process is fair, transparent, and constructive.
They were not created, over years of industrial and legal debate, to be overridden by the whims of an employer keen to avoid paying up and discussing the details of their staff’s working conditions.
Sources:
Fair Work Commission: “Good faith bargaining” (official explanation and obligations)
Fair Work Commission: “Statement of Principles on Genuine Agreement” (how the Commission assesses whether an agreement was genuinely agreed)
Fair Work Ombudsman: “Bargaining for an agreement — rules and requirements” Fair Work Ombudsman
