Communications during collective bargaining are of central importance to the conduct of employment relations in Australia and New Zealand as they may substantially impact collective bargaining outcomes. Although communications during collective bargaining are required to be in good faith in both jurisdictions, the Courts have approached communication material that seeks to "negotiate" with or persuade employees of employer viewpoint quite differently. This paper discusses how the Australian courts have allowed greater latitude to employer and employee representatives to communicate their points of view during collective bargaining, and in turn led to results which may be seen as undermining the collective bargaining process.
This paper compares the law covering communications during collective bargaining between employers, employees and bargaining representatives in Australia and New Zealand in the context of Good Faith Bargaining (GFB) requirements. Communication issues have assumed greater importance within the systems of enterprise based industrial relations in Australia and New Zealand over the last 20 years. They are integral to any consideration of collective bargaining parameters, and may substantially affect negotiation outcomes.1
Collective bargaining has only recently been concurrently covered by GFB provisions in both jurisdictions.2 Although the current legislation in Australia and in New Zealand was enacted by Labour Governments, there are differences in the respective philosophies underpinning the two Acts. The FanWork (FW) Act is based on individual rights and enterprise collective bargaining3 and does not accord unions any particular status other than as professional bargaining agents like any others. Good faith is just one of many objects of the FW Act, and it contains simple GFB obligations. The New Zealand Employment Relations Act (ERA) 2000, however, promotes collective bargaining, accords unions exclusive status as bargaining representatives and gives good faith as well as GFB a central position in the objects of the legislative framework.4
These different philosophies are shown in the following research to have impacted on the different ways communications that seek to "negotiate" during "good faith" collective bargaining are perceived in each jurisdiction.
The New Zealand Position
The New Zealand government's recent reform of s 32 of the ERA5 is the latest in a series of legislative and judicial attempts to deal with the lack of clarity and relative complexity in the law covering communications during collective bargaining. This reform confirms an employer may communicate with the employer's employees during collective bargaining, including about the employer's proposals for the collective agreement as long as the communication is consistent with the GFB requirements set out in ss 32(l)(d) and 4 of the ERA.
In order to understand the current New Zealand legal position, it is necessary to understand the legal position in respect of communications during collective bargaining under the Employment Contracts Act 1991 (ECA). Section 12(2) was the key section relating to communications in collective bargaining negotiations. This section, which is much less prescriptive than the current ERA, referred to "recognising the authority" of the representatives for negotiations, rather than any direct reference to communications.
Employment Contracts Act Cases
A discussion of the ECA position is facilitated by examining the following four cases, which interpreted ECA s 12(2).
In the first case, Eketone ? Alliance Textiles (NZ) Ltd,6 Cooke P expressed the law as it then stood to be: "[c]ertainly an employer is free not to negotiate with anyone: but if he wishes to negotiate I doubt whether he can bypass an authorised representative".
In the next case, NZ Medical Laboratory Workers ? Capital Coast Health,7 the employer was judged to have crossed the boundary between the provision of legitimate information and attempted direct negotiation by the Employment Court. …