Pattern bargaining

See Fair Work Act s.412

Pattern bargaining is a course of conduct by a person who is a negotiating party to two or more proposed enterprise agreements, seeking common wages or conditions for two or more of those agreements, where the conduct extends beyond a single business.[1]

The Fair Work Act does not actually proscribe pattern bargaining as such: rather it denies protection to industrial action taken in support of it, and makes specific provision for the grant of an injunction to stop or prevent such action.[2]

A course of conduct by a person is pattern bargaining if:

• the person is a bargaining representative for two or more proposed enterprise agreements
• the course of conduct involves seeking common terms to be included in two or more of the agreements, and
• the course of conduct relates to two or more employers.

There is no error in interpreting the expression 'common' to mean the 'same' or 'identical'.[3]

It is correct to find that a union is not seeking 'common wages' if, at the time [that the application for an order to stop unprotected industrial action is made] the union has indicated a preparedness to negotiate different increments for different employers (even if the cumulative arithmetic of the increases ended up the same).[4]

The course of conduct, to the extent that it relates to a particular employer, is NOT pattern bargaining if the bargaining representative is genuinely trying to reach an agreement with that employer.

The factors relevant to working out whether a bargaining representative is genuinely trying to reach an agreement with a particular employer, include whether the bargaining representative:

• is demonstrating a preparedness to bargain for the agreement taking into account the individual circumstances of that employer, including in relation to the nominal expiry date of the agreement
• is bargaining in a manner consistent with the terms of the agreement being determined as far as possible by agreement between that employer and its employees, and
• is meeting the good faith bargaining requirements.

Proof

A bargaining representative bears the burden of proving that they were genuinely trying to reach an agreement. This is known as a reverse onus of proof. A reverse onus of proof applies because the bargaining representative is in a better position to know and to provide evidence of reasons for engaging in particular conduct.[5]

Definition

This exception for pattern bargaining does not affect, and is not affected by, the meaning of the expression 'genuinely trying to reach an agreement' used elsewhere in the Fair Work Act.[6]

In the context of this provision, the expression 'genuinely trying to reach an agreement' is limited to the issue as to whether pattern bargaining is occurring.[7]

The use of template agreements is common in certain industries, particularly where there may be many small businesses that are contracting for work within a larger project.

An example of this is within the building and construction industry. Bargaining representatives may use template agreements as a starting point for negotiations based on their interests. However, if a union is seeking common terms in two or more agreements with two or more employers, then this may be considered pattern bargaining.

The existence and promotion of a template agreement is not of itself pattern bargaining.[8]

Course of conduct found to NOT be pattern bargaining

Farstad Shipping (Indian Pacific) Pty Ltd v Maritime Union of Australia, The

Farstad Shipping (Indian Pacific) Pty Ltd v The Maritime Union of Australia [2014] FWC 8130 (Johns C, 17 November 2014)

Facts

The union applied for, and was issued, a protected action ballot order for members to vote on taking industrial action in support of a proposed enterprise agreement. A ballot was conducted and industrial action was authorised.

The company argued that the union was engaging in pattern bargaining, and was not genuinely trying to reach an agreement. Specifically, the company submitted that the union was pursuing the company and other operators that were part of the wider industry bargaining, for the following claims:

• a '4 Week Swing' shift pattern
• payment for travel days, and
• the same expiry date for all agreements.

Outcome

The Commission held the union was not seeking common conditions of employment for two or more proposed enterprise agreements, and was therefore not engaged in pattern bargaining according to s.412(1)(b) of the Fair Work Act. The Commission pointed to the fact that the union had indicated a preparedness to negotiate with the wider industry about the 4 Week Swing claim, however it had never even hinted at abandoning the 4 Week Swing claim with the company. The union was therefore not pursuing the same course of conduct as between the wider industry and the company.

Relevance

In determining the meaning of 'common' for the definition of pattern bargaining in s.412(b) of the Fair Work Act, the Commission applied the principle from Trinity Garden which defines 'common' to mean the 'same' or 'identical'. The principle also states that a union is not seeking 'common wages' if the union has indicated a preparedness to negotiate different increments for different employers.

Boral De Martin & Gasparini v CFMEU – Construction and General Division, NSW Divisional Branch

De Martin & Gasparini Pty Ltd and De Martin & Gasparini Pumping Pty Ltd T/A Boral De Martin & Gasparini v Construction, Forestry, Mining and Energy Union – Construction and General Division, New South Wales Divisional Branch [2015] FWC 477 (Riordan C, 19 January 2015)

Facts

The company applied to the Commission seeking orders to stop the proposed industrial action from occurring. The company argued that the CFMEU was participating in pattern bargaining with 21 concrete placement and concrete pumping companies, because it was saying that it would only sign the CFMEU template enterprise agreement.

The CFMEU argued that the issue of pattern bargaining did not arise in this situation because the terms of the proposed agreement were unique. To support this argument the CFMEU submitted that under the existing agreement employees were engaged on weekly hire, were paid a tool allowance and received a higher weekly superannuation payment all of which were superior to the industry standard and would be included in the proposed enterprise agreement. The CFMEU also gave evidence, which was accepted by the Commission, that the company was aware that the superior conditions would form part of the proposed agreement.

Outcome

The Commission found that the negotiations did not form part of any purported pattern bargaining. The company had always had a different enterprise agreement to the rest of the industry and there was no evidence before the Commission that this would change in the proposed agreement. The application for orders to stop proposed industrial action was dismissed.

Relevance

The Commission applied the definition of 'common' in s.412(1)(b) to mean the 'same' or 'identical' from Trinity Garden. Therefore, for the CFMEU to be involved in pattern bargaining with the company, the relevant terms of the proposed agreement would have to be identical to that of another employer.

Injunction

See Fair Work Act s.422

The courts may grant an injunction against industrial action if a bargaining representative is engaging in pattern bargaining.

A court may grant an injunction on such terms as the court considers appropriate if:

• a person has applied for the injunction, and
• the court is satisfied that:
  • employee claim action for a proposed enterprise agreement is being engaged in, or is threatened, impending or probable, and
  • a bargaining representative of an employee who will be covered by the proposed enterprise agreement is engaging in pattern bargaining in relation to the agreement.