Communicating with employees during bargaining

It’s rare that issues relating to the employment relationship don’t call for direct communication between an employer and employees and enterprise agreement bargaining is no exception. Both the process and outcomes of bargaining can have significant impacts on the relationship, and success is often dependent on the quality of communication. 

Bargaining is an extended process involving multiple parties, large amounts of information, and complex concepts and proposal. These factors mean that the ability to create common understanding and reach agreement is underpinned by the parties’ ability to explain and discuss topics in a variety of ways.

While much of the specific approach taken for communicating with employees will depend on a business’s circumstances, employers do have some legislative obligations and there are also general rules for success.

Non-negotiable communication

There are certain times during bargaining when an employer must communicate directly with all employees covered by a proposed agreement. These include:

• issuing the Notice of Employee Representational Rights (NERR)

• providing access period materials and information

• allowing employees to vote

• notifying employees of the approval application filing.

An employer should engage directly with employees for these purposes regardless of whether the employee has a bargaining representative.

Failing to do so may contravene the Fair Work Act 2009 (FWA) and impact the ability to have an agreement approved by the Fair Work Commission (FWC).

Distinguishing between employees with and without a bargaining representative

As a general rule, a business should not seek to distinguish between employees based on their bargaining representative (or lack thereof). That means that most employee communications regarding bargaining should be provided to all employees covered by the proposed agreement. However, depending on the issues at hand, it’s common for some communications to be prompted because of certain employee sub-groups.

Employees without a bargaining representative

At the commencement of bargaining, an employer may consider communicating with employees that do not have a bargaining representative regarding bargaining representative appointments. This can include providing information about the role of bargaining representatives (particularly to senior or long-serving employees) and providing a form for employees to provide written notification of any bargaining representative appointments. This communication helps to ensure that all employees are represented during bargaining and that the representative/s of some employees do not dominate negotiations. It can also reduce the possibility that large numbers of employees seek to be involved individually which can hamper bargaining logistics and complicate negotiations.

Throughout bargaining, an employer may take a more proactive approach to communication where there are employees without a bargaining representative to ensure they remain informed. This can include providing:

• updates on the process, negotiations and timeline

• information about proposed agreement terms

• communications necessary to correct any misinformation.

This creates a more positive bargaining experience where employees feel involved in the process. It allows understanding of the contents and effect of the proposed agreement to be built gradually as bargaining unfolds, developing trust between parties. It also provides a vehicle to correct any inaccurate information (whether deliberate or a result of complexity) which strengthens the likelihood that any proposed agreement is voted for by employees.

Employees with a bargaining representative

The FWA’s good faith bargaining obligations require that an employer recognises and engages with employee bargaining representatives. This means that an employer cannot choose to bypass a representative and engage only with the employees themselves. However, it does not mean that an employer cannot communicate with employees or that the representative must be left as the sole conduit of information to employees. Direct engagement with employees should occur in parallel throughout bargaining to avoid bargaining representatives, particularly unions, maintaining a monopoly on employee attitudes. This approach recognises that while employees have representatives who play a vital role in bargaining, it’s ultimately a majority of voting employees who make any agreement.

This means that while these employees are likely to get updates and information from their bargaining representative, it may still be necessary to communicate directly with them about contents and effect of the proposed agreement terms to ensure the accurate representation of bargaining proposals. Similarly, at times it can be useful to release communications or records of discussion with bargaining representatives to the employee cohort to ensure the accurate representation of the bargaining process. However, care should be taken to not undermine trust that facilitates open and honest bargaining discussions.

In other circumstances, a business may seek to engage with employees through a joint communication with bargaining representatives. This approach can be taken when there is a desire to demonstrate to employees that a common understanding and/or agreement has been reached.

Communication methods

There is a range of communication methods that can be used throughout bargaining and the most appropriate is likely to depend on the purpose and audience. It could include notices in the workplace, FAQs (hardcopy or online), emails, meetings (virtual or in-person), or pre-recorded videos. As a general rule, the substance of the communication is more important than the format provided that the information is accessible to all employees. However, where communication is mandated by the FWA, there may be a specific format required.

Whatever the format used to communicate with employees, it’s vital to ensure that a sufficiently detailed, accurate record is kept.

Language and tone

The tone and language used in communications with employees will impact its effectiveness. The appropriate tone and language will depend on the nature and purpose of the communication. As a general rule, its best practice to adopt a positive, affirming and conciliatory tone to promote cooperative bargaining.

However, there may be circumstances where a stronger (yet still appropriate) tone and language are adopted as a necessary approach to clearly communicate a steadfast position or to unambiguously object to a party’s position or conduct.

Harmonious bargaining will be facilitated by focusing, as much as possible, on claims rather than bargaining representatives when undertaking any analysis and/or critique in communications with employees.

Communications may become evidence

The examination of bargaining and therefore bargaining communications by the FWC and/or courts can occur in several circumstances, including:

• to assess good faith bargaining compliance

• during the approval process

• to interpret agreement clauses.

This means that parties must be mindful of the fact that their communications (in any form) may become evidence which could have a significant impact. As such, a business should always take time to consider the substance of a specific communication and how it fits within the broader bargaining process before communicating.