Employees elected 12 bargaining representatives for enterprise agreement negotiations.  A union bargaining representative wrote to employee bargaining representatives requesting their appointment notices, contact details and copies of their proposed claims.

One of the employee bargaining representatives approached the employer expressing concern about the union’s letter and sought its advice.  The employer then wrote to all the employee bargaining representatives advising that they did not have to respond to the union’s request as they were entitled to be free from control or improper influence from other bargaining representatives.  The union applied to Fair Work Australia (FWA) for a good faith bargaining order.

FWA dismissed the union’s application, finding the employer’s letter did not constitute capricious or unfair conduct.  It merely provided advice to bargaining representatives who were free to make their own decisions.  FWA noted that communications in negotiations are often robust, controversial or disrespectful.  It will be difficult to establish a single communication is capricious or unfair unless a deliberate and improper pattern can be shown. 

National Union of Workers v Patties Foods Ltd [2011] FWA 4103 (1 July 2011)