Good Faith Bargaining free essay sample

The key provisions relating to good faith bargaining obligations under FWA 2009- Section 228(1) mandate bargaining representatives for enterprise agreement to meet the under-listed requirements in order to ascertain that bargaining are done in good faith. * Attend and participate in meetings at reasonable times * Disclose relevant information but not confidential or commercially sensitive information in a timely manner. * Give genuine consideration to the proposals made by other bargaining representatives, and give reason to the responses made to those proposals. Recognize and bargain with the other bargaining representatives * Refrain from unfair conduct that undermines freedom of association or collective bargaining * Respond to proposals made by other bargaining representatives in a timely manner However, Section 228(2) says that, good faith bargaining requirements do not require a bargaining representative to make concessions during bargaining for the agreement and also to reach agreement on the terms that are to be included in the agreement. The good faith bargaining obligations are given force by ability of the bargaining representative to apply to FWA under Section 229 for bargaining order, in situations where another bargaining representative has not met any of the good faith bargaining requirements of section 228(1). The Good Faith Bargaining obligation will take effect as soon as an employer initiates negotiations for an enterprise agreement, or more likely agree to the union’s request to begin bargaining or when a majority support determination or a low paid authorization is made by FWA. That is, bargaining begins when an employer agrees to bargain for an enterprise agreement with its employees. In a situation where majority of the employees support the making of an agreement, bargaining representative can apply to Fair Work Australia for a determination mandating the employer to bargain. The determination will be approved where it is glaring employees want to bargain, those that constitute majority voters have been fairly chosen, but the employer refused to bargain. Employees and Unions are allowed under Australia law to take a protected industrial action in support of their claims in enterprise agreement negotiations and employer may engage in retaliatory lockout (Crystal 2009, pp. 23). However, several routine and substantive requirements must be met before such industrial action is taken and the party seeking to take it has been really trying to reach agreement with the other part, although, they are legally separated but are related requirement to the GFB obligations. While FWA has indicated that the right of employees to take industrial action and employer’s right to retaliatory lockout should not be conflated in practice, similar consideration arise when FWA is determining whether a negotiating party has been genuinely trying to reach agreement and whether a party is bargaining in good faith (Smith 2009). NIGERIA COLLECTIVE BARGAINING In the same vein, ratification of ILO Convention No. 98 of 1949 on the Right to Organize and Collective Bargaining has given workers the right to join or form trade unions in Nigeria. Nigeria is known for the use of collective bargaining in her enterprise agreement. The provision for collective bargaining was made under the Labor Act Cap 198 of the Federation Laws in 1990. The term â€Å"Collective bargaining† was defined by Nigeria Labor Act, as the process of arriving or attempting to arrive at a collective agreement, while collective agreement is term to be written agreement regarding working conditions and terms of employment agreed upon between a union of workers or an organization representing workers and an organization of employers. The end result of this exercise is that both parties will unanimously agree on certain employment’s terms and conditions. When bargaining is done in good faith, it’s eventually leads to agreement between employer and employees which often result to social order in their relationship (Erugo 1998, p. 33). Nigeria Labor Congress (NLC) is the most prominent labor union in Nigeria that often educates, defend and advance the political, economic, social and cultural rights of Nigerian employees. The functions of collective bargaining includes the provision for peaceful settlement of grievances and disputes arising from interpretation of collective agreement, or areas that are not included in the agreement, it’s also to establish industrial jurisprudence and to win concessions from the employer by collective action (Fashoyin 1992). However, to collectively bargain in Nigeria context requires the preparation of comprehensive statement of demands put forward by the union representing workers for the consideration of the employer. Following by the negotiation process where union and the employers’ association finally meet on the appointed date and venue for negotiation. In the national context, the meeting is usually chaired by employers’ group with the union’s President as his vice chairman. The employer do prepare their own positions and counter proposals for each of the union’s demand. For each position taken reasons are site as evidence. Results are normally unpredictable because decisions are only arrived at when there is unanimous agreement between employees and employer. Collective bargaining practices in Nigeria ranges from; national, state, enterprise and industrial collective bargaining, but the most practice one in the country is the industrial bargaining which is concerned with negotiation and agreement in the industries. Collective bargaining is an acknowledged mechanism for determining wage levels and work’s conditions in Nigeria, the often assumption of trade union in determining collective bargaining outcome makes it to be in a state of instability. EVALUATION OF NIGERIA AND AUSTRALIA BARGAINING SYSTEMS Despite the right to organize to bargain collectively in Nigeria, employees are not fully availed with this right, as unionism and collective bargaining are disallowed in several jurisdictions based on the perception that unrestricted unionism may threaten the internal security of the state (Adams 2008, 165-172) . It’s also evident that private sectors in Nigeria have taken over the public sector with wage superiority and low involvement of their workers in trade union movement. While the multinational corporations also dominate Nigeria’s private sectors and they are known for anti-union activities by not tolerating trade unionism and collective bargaining since the inception of trade union in Nigeria (Okafor and Bode 2005). Nigeria government often take care the duty of tax wage fixation instead of allowing collective bargaining to play this role, this contributes to the inactive states of collective bargaining in the country. However, the situation of compelling all wages agreement to be registered with the Ministry of Labor who decides the effectiveness of the agreement shows a level of restriction in Nigeria’s collective bargaining. Most Nigerian states intervene in collective bargaining especially when they provide the job and source of finances, for example, government regulates the commercial and physical environment of higher institutions by formulating educational policies, provides services and stipulates conditions of service for staff. This often results to crisis in industrial relations as it’s perceived to be an attempt by government to compelled labor to take to its directives, instead of allowing collective bargaining to take its course (Ekpenyong 1989). However, several studies had shown that workers are often maltreated as employers deny their employees the right to unionize. The prevention of most employees in the banking industries by their employers to join workers union is a typical example of the major setback confronting collective bargaining in Nigeria (Adewumi 2008). The setbacks in Nigeria system is however different from that of Australia good faith bargaining which gives room for bargaining of wages and work condition to take place between employer and employees or trade union, but must not negotiate for anything below the standard stipulated in the National Employment Standard( NES). Obligation to disclose information relevant to collective bargaining widely creates a significant problems for Australia workers due to the fact that the Fair Work Act fail to give a proper definition of the kind of information to be provided , nor what is meant by confidential or commercially sensitive information that may be withhold. The decision of Whelan C in AFMEPKIU V H Heinz Co Australia Ltd [2009] FWA 322 was the first to indicate that strict limits on direct dealing will not form part of Australia’s Good Faith Bargaining laws. Sequel, there is nothing to prevent either the union or the company from canvassing the views of employees on shift hour. Widespread communication is must be encouraged, not regulated or monopolized because communication with staff is a good management practice. Employers in Australia can make out a business case for re-organizing its operations; they can implement a restructure while agreement negotiations are in existence and not be in breach of the GFB obligations under the Fair Work Act. Direct dealing and communication with employees is another area of advantage to Australia bargaining system. Drake SDP’s recommendation in AFMEPKIU Vs Transfield Astralia Pty Ltd. [2009] FWA 93 states that, Transfield will deal with all officers and delegates of the bargaining agent representatives who are authorized by their organizations to conduct negotiation. This requires that all interaction, communication and correspondence in bargaining be conducted through the parties chosen representatives. This method of bargaining was seen to be partially accurate in Australia because it doesn’t facilitate good rapport between the employer and the employee. FWA later availed employers the right to communicate directly with employees during bargaining. However, the tribunal has prevented direct dealing in form of unilateral pay increases, progress of negotiations or defend their bargaining position to employees but not discredit the union or undermine it bargaining right (Dannin 2001). Conclusively, Conflict and litigation are hallmarks of the Nigeria system of labor union recognition, with employers engaging in hostile resistance to both union attempts to gain recognition and where the union eventually succeeds to collectively bargaining. Employer tactics during union recognition campaigns in Nigeria include dismissal restricting union access to employees for communication purposes, while the employer conducts captive audiences speeches with employees (Paul 2009). It highlight to employees the possibility of business closures of other adverse consequences if collective bargaining is mandated, and portraying the potentially negative as part of union involvement, e. g. nvasion of employee’s privacy, or employees being forced into strikes or picket- line violence, strategic litigation by employers, the ineffectiveness of remedies against unfair labor practices and undue influence from the government on collective bargaining are major hindrances facing Nigeria system. However, the level of opposition by Australia employers against collective bargain cannot be compare to that of Nigeria. Apart from few prominent examples, such as, the 1998 waterfront dispute, where Patrick Corporation sacked his entire workforce, lo cked them out and set up new companies to employ a non- unionized workforce (Steve 1998). Anti-union tactics by employers in Australia is not as pronounced as the consistent disagreement between NLC and Nigeria government due to failure of government representatives to fulfilled promises made in respect of wages and employment conditions in the course of bargaining with the worker’s union. Australia good faith bargaining is more advantageous in comparison with the Nigeria collective bargaining in the sense that, free hands are given to both employers and employees and their representatives by Australia government to unanimously negotiate in good faith without external influences. Works Cited Adams, Roy J. 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