The promulgation of a NZ-style code of good faith bargaining in Australia could shift bargaining culture to one more oriented to collaboration and achievement of mutual gains, Monash University's Anthony Forsyth told ABCC inspectors today.

Speaking to the ABCC field operations inspector conference in Torquay, Forsyth said that if a good faith code eventuates after the Government's review of the Fair Work Act it "would be a new instrument through which government seeks to bring about a shift in the nature of collective bargaining – from a traditional 'positional' bargaining. . . to more collaborative or 'mutual gains'-oriented bargaining".

He said that a code operating under the Fair Work Act would provide an opportunity to "take stock" of the developments in good faith bargaining provisions in their 30 months of operation.

It would offer the chance to "consolidate" the principles established in case law, such as confirming that making direct offers or changes to employees' wages and conditions during bargaining is capricious or unfair conduct that undermines collective negotiations, he says.

Forsyth said he also hoped it might offer the opportunity to revisit other principles, such as the "permissive approach" to direct employer-employee communications during bargaining in the FWA full bench Tahmoor Coal decision (see Related Article).

He noted that ABC Commissioner Leigh Johns had foreshadowed that the ABCC would play a larger role in promoting good faith bargaining, and in support of this it was developing a practical guidance note on good faith bargaining in the building and construction industry.

He said the guidance note "dovetails nicely" with the Government's suggestion that it might introduce a good faith bargaining code based on the NZ model, in a post-Qantas attempt to shift bargaining away from an adversarial approach.

He said the NZ code (the 2005 code now in effect replaced the original scheme established in 2001 - see Related Article) has legal effect as the Employment Relations Authority and the Employment Court can have regard to it to determine whether a union or employer have "dealt with each other in good faith" during bargaining, and if parties show they have followed the code, this can be taken as compliance with the Act's good faith bargaining provisions.

NZ Department of Labour research showed that the code had "had a minor positive effect" on bargaining.

It found the good faith obligations provided a framework for constructive negotiations.

Good faith bargaining relationships were becoming the norm , and this was considered to have enhanced trust generally, laying the foundation for good, ongoing relationships".

Critical role for ABCC inspectors to play in developing good faith

Forsyth said the ABCC's inspectors would have a critical role in "operationalising" the organisation's proposed guidance note on good faith bargaining – "and a Federal Government Code of Good Faith, if it eventuates".

"In my view, there is a real opportunity for ABCC inspectors to be the bridge between the Government's aspiration [at s3(f) of the Fair Work Act] of "achieving productivity and fairness through an emphasis on enterprise-level collective bargaining unpinned by simple good faith bargaining obligations and clear rules governing industrial action" and "making that goal a reality in your industry".

While the "precise role" of inspectors would depend on the nature of the ABCC guidance and a possible good faith code, it might involve:

• helping parties to develop a Kiwi-style "bargaining process agreement" at the start of negotiations;
• "checking in" during site visits on the progress of negotiations and any emerging problems;
• reminding parties of their good faith obligations and of avenues for resolving differences, such as seeking bargaining orders under s229 or seeking mediation or arbitration under s240; and
• providing assistance via the mediation skills of inspectors.

Greens to back building bill, says Forsyth

Forsyth predicts that the Greens will support the Government's bill to abolish the ABCC and establish the Fair Work Building Industry Inspectorate (see Related Article).

He said that even though the legislation doesn't deliver the extent of reform the Greens want, "it would enable them to say they'd help deliver the building unions' long-held goal of removing the ABCC from Australia's industrial landscape".

He expects that in the Lower House three of the independents will line up with Greens MP and IR spokesperson Adam Bandt to pass the bill.

ABCC to launch tough app on the beat

Forsyth quipped that, in the context of the ABCC's "increasingly visible" media presence he was going to suggest lightheartedly that he looked forward to an ABCC iPad app.

ABC Commissioner Leigh Johns, however, had assured him "one is definitely on its way", he said.

Reflections, Opportunities and Predictions on the Role of the ABCC in Australia's Workplace Relations System, speech by Anthony Forsyth, Associate Professor and Director, Workplace & Corporate Law Research Group, Faculty of Business & Economics, Monash University to the ABCC Field Operations Inspector Conference, Torquay, November 15, 2011