The foundation of bargaining: Getting started with the log of claims

A log of claims is usually a list of positions on proposed inclusions (or exclusions) from an enterprise agreement which forms the basis for bargaining discussions. Exchanged between parties at the beginning of bargaining, logs of claims are vital to understanding what others hope to achieve in bargaining.

If different groups of employees have appointed different bargaining representatives, its commonplace for each to have their own log of claims. By all parties creating and sharing a log of claims, the totality of issues in bargaining can be seen, allowing points of similarity and difference between parties to be identified. This understanding helps to make bargaining more efficient as the parties can ensure that related claims are discussed together and that dependent claims are discussed in order. Efficiencies such as these are vital to ensuring that the timeline for an already lengthy and complicated process is not unnecessarily extended.

What to include in a log of claims

The specific inclusions in a log of claims are mostly dependent on a business’s individual circumstances, including its industry, existing industrial instruments (e.g. any agreement or relevant award), and business performance and goals.

As a negotiated enterprise agreement will be measured against the applicable minimum entitlements set by an existing agreement or award, it can be helpful to use that existing entitlements framework as a baseline for the creation of bargaining claims. Pay and entitlement (e.g. leave) claims can be generated by considering how much above minimums the business can afford. Claims relating to how employees perform their work can be created by assessing whether the baseline span of hours, overtime, and penalty rate requirements fit with your employee structure and business processes. Understanding what conditions, not provided by the minimums, will motivate employees to contribute positively and reward them for doing so helps to identify claims that make the business an ‘employer of choice’. Other areas that can be considered for potential claims include health and safety, performance and conduct management, union rights, and training and development,

While many claims will be business specific, the Fair Work Act 2009 (FWA) makes certain terms mandatory such as coverage, expiry, consultation, flexibility and dispute resolution terms. Given that they must be included, it’s best practice to form a view on the specifics of these mandatory terms when creating a log of claims. Therefore, a business’s log of claims should address:

• which employees the agreement covers

• when the agreement will expire

• whether the Fair Work Commission’s model consultation, flexibility and dispute resolution terms will be used (if not, what the proposed terms include).

While not strictly required, it's also best practice to consider from the outset whether any relevant award terms will be incorporated into the agreement (explicitly or by reference) and whether National Employment Standards (NES) will be superseded, restated or a NES precedence clause used.

The right level of detail

Ideally, the logs of claims exchanged at the commencement of bargaining should be a clear statement of any items that a party wants to include or exclude from the proposed agreement. Including (as far as possible) all claims from the outset allows the parties to understand the totality of each other’s position and for individual claims to be considered in the context of the cost and effect of other claims. Commencing bargaining with transparency regarding what each party is seeking also promotes positive bargaining through effective communication which builds trust. Introducing new claims at a later date can undermine that trust, eroding a belief that another party is being open and honest and contributing to a perception that the ‘goal posts’ are being moved. This generally does not include ‘new’ claims that arise as a natural evolution of existing claims due to negotiation between the parties.

Individual claims should be communicated in sufficient detail to allow other parties to understand the implementation and effect of the proposal. The level of detail of a proposal often depends on a business’s flexibility on the claim and the likelihood of it being changed through negotiation. The less open a business is to negotiating a claim, the more detail may be included in an attempt to advance a specific position. Similarly, the more likely it is that another party will negotiate or not agree to a claim, the less utility there is in taking time to include specific details. However, in some instances, the level of detail of a claim may be used strategically. For example, advancing a specific, detailed ideal claim which a business is open to negotiating provides a clear and documented instance of a concession which can be used later in negotiation or as evidence of good faith bargaining.

If parties wish to pursue an interest-based bargaining approach, characterised by the identification of interests underlying claims, they may expand on the level of detail in the log of claims to that end. In those circumstances, that additional detail should help the other parties understand the reasoning behind the claim. Alternatively, that additional information may be provided at the commencement of bargaining meetings.

Tips for creating a log of claims

There are steps you can take when creating a log of claims to set you up for bargaining success from the very start. Follow these tips to make bargaining a more positive experience for employees and the business.

Do your homework

Review the log of claims from bargaining representatives in any previous bargaining with a focus on claims not agreed to understand what may be sought in current bargaining. Similarly, examining recent agreements made by any involved union provides insight into common inclusions they seek. Build on the business’s understanding of recent industry trends and challenges by considering any relevant political intelligence including policy and funding changes. Use any previous employee consultation and/or feedback to understand what matters to employees, what they value and what challenges they are facing.

Undertake consultation

Whether it's within a well-rounded bargaining team or with other internal stakeholders, consultation provides additional perspectives on the range and content of claims within a log of claims. Seeking input from individuals with strategy, operations management and frontline knowledge will help ensure that all necessary claims are included and that they are communicated accurately.

Tone matters

The exchange of logs of claims is a significant early interaction between parties and the included claims and the manner they are communicated can set the tone for bargaining. Think carefully about what can realistically be achieved and ensure that more controversial claims are unavoidable to prevent creating an unnecessarily adversarial process from the beginning. Be mindful of the tone and language used in communicating the claims to help demonstrate a commitment to good faith bargaining. This includes avoiding tone or language which creates the perception that:

• employees are not deserving of benefits

• cost of living pressure is not a real concern

• any business financial hardship is not genuine

• the business is adopting a ‘take it or leave it’ approach

Start positively

Use your preparation to proactively include some claims which employees are likely to be seeking (provided they are suitable to the business) to foster a positive start to bargaining. This also allows a business to earn bargaining capital to push back on other employee claims on the basis that it has taken steps to meet employees needs and that they should do the same in return.

The foundation laid by a considered and well communicated log of claims, one of openness, trust and clarity, is essential to effective bargaining which strengthens rather than detracts from the employment relationship. As the implementation of an agreement that contributes to business success is influenced by the quality of bargaining, the importance of the log of claims within the broader bargaining process should not be underestimated.