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Friday Workplace Briefing

Negotiating Your Enterprise Agreement

In this week’s Friday Workplace Briefing, Andrew and Nina discuss negotiating your Enterprise Agreement. After taking us through preparation of EAs last week, this week they are digging into how to do it and the rules surrounding them.

To view the full episode and catch up with the week’s latest news and developments please visit this link.

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About the Hosts

Managing Principal - Victoria

Senior Associate - Workplace Relations

Episode Transcript

Andrew Douglas: Last week, which I think was a lot of fun, we did about what you do before you start to negotiate, so let’s just jump into the headings. We should have them springing up as we go. We’re going to go through pretty quickly.

Who Negotiates and Roles

You’ve now got all the evidence of what the price is. You know total cost of the enterprise agreement. You’ve communicated directly with your workforce. So they’re on board in the process. You’ve got no surprises, you’ve done the survey with those matters to them.

The rule is you execute quickly on an enterprise agreement, because if you don’t, the union agenda starts to creep in and what people want disappears. So who’s going to negotiate?

You must have one person who has critical knowledge of the organisation in the room. You must have somebody who writes well. That’s all they’ve got to do. They’ve got to write well and they’ve got to record what occurs as to what is the negotiation agreements that are reached.

Nina Hioang: It’s so key. The amount of times we’ve looked at stuff and people don’t understand what actually was agreed and then it varies and–

Andrew Douglas: That’s right. So at the end of every agreement, you should have each clause, what has been discussed, what has been agreed, and that’s for good faith bargaining because people can’t walk away from it easily afterwards.

And the last thing is this bullsh*t about having paired groups of you bring eight people, we bring eight people, just show that you’re worth something.
Just no more than three in a room, okay?

If you’re negotiating, you’ve got the person with authority, you’ve got the person with the understanding of the business, you’ve got the writer, that’s it. Don’t overcook this because all you’re doing is giving a privilege to people to say, oh, if you’ve got eight, I’ve got eight.

Nina Hioang: Yeah. And those people just sit there and do nothing.

Andrew Douglas: They just sit there. So what we want to see is that our people are exemplars of good behaviour throughout, they are knowledgeable throughout and they create the document at the end every time. That’s what we want. Let’s go to our next heading.

Communication Structure with Floor

All right. Once you’ve created that document at the end, you must have a communication system and the supervisors take that to the floor immediately, wherever that is, and communicate the truth because the union simply won’t.

Next heading.

Who Is On The Team-Steering Committee

We’re racing through these. We’re killing Sophie with this, aren’t we?

You should always have a steering committee above the negotiators. They are the owners or the people who have the final responsibility who, we’ve talked about the steering committee document, who prior to you start negotiating, have given you the parameters of what you can and can’t negotiate, they understand why you’re there and what you’re trying to achieve for the organisation, and you feel authorised and empowered to do it. And after each negotiation, you hand them the documents where we are and put in red things that are moving towards the edge of those parameters. Okay? Next heading. Look at this, we’re racing through today.

Nina Hioang: You are.

Andrew Douglas:

Money Is The Last Rule

Yeah. Money is the last rule. Can I just say this? Do not negotiate money in the first meeting. It is always the last thing you negotiate.

Nina Hioang: And then people just get stuck and fixated on it for ages otherwise.

Andrew Douglas: Yeah, they do and they keep wanting extra. So remember, it’s not just money, it’s total cost. So it’s not what people get at the end as a rise equals what is left over from the total cost of the enterprise agreement.

So the total cost improvement is four percent and they’ve got leave loading and everything else is already at one percent. The maximum they can get is three, not four, because remember, enterprise agreements are aggregational in nature. If you get four percent three years in a row, the total cost is actually 13.2%.

If you’ve got four percent on wages alone, the total cost is about 18% with on costs throughout the enterprise agreement. Five percent’s a big difference. So total cost rule.

Next one.

Good Faith Bargaining Nina Hioang: Documentation Rule

Good faith bargaining. Okay. If you don’t have the documentation showing what you’re doing and going out and talking to people, you’ll breach good faith, okay?

And the reason you breach good faith is, you’re allowed to speak to your employees but only on the basis of documentation the union’s aware of and you must set up the communication process before you start so they don’t say that you’re going behind the union’s back. That also means you’ve got to allow report backs from unions as part of it, which is a paid time, and you’ve got to make sure that those times are reasonable times, not 10 minutes when they’re going to be half an hour. Yes, they’re going to be rabble rousing. And by the way, if you have CCTV that’s operating in the area of the meeting, turn it off.

Nina Hioang: Yeah, that’s a good tip. I feel like a lot of people forget that one.

Andrew Douglas: Yeah, well they do because they’re sitting watching it.

Next one.

Your Draft EA Nina Hioang: When and What

You should always start a negotiation with your draft EA.

Nina Hioang: Yes.

Andrew Douglas: The perfect enterprise agreement. And in the back room, when you get back with your list, you should be looking at where you’re going, and that draught EA should have prioritisation, things that must happen, things which would be nice, and things which not so sure about, which means when you do an EA strategy, you do it for a 10 year period, what am I getting this time, next time and the one after? Because remember, you can only get a little bit EA, but you’ve got to get what’s important.

Nina Hioang: But I also think that’s important because a lot of people think if you’ve got an existing agreement, that means that is the minimum you have to do and you have to repeat the same thing. That’s not actually the case. You can draft the EA you want and then work from that as a negotiation.

Andrew Douglas: Yeah. And I think the other part for that is, EAs, as we try and understand them, are very hard, because they’re often created in the heat of the moment, the grammar’s bad, what’s said is bad, it doesn’t correspond with the award. Awards are already very difficult for exactly the same reasons. So sometimes you can go back.

Remember, you can’t fiddle too much with an EA because you create dispute, but there’ll be several clause like when overtime is payable and things which are often impossible to understand, where you can say and give a document and put it on the table, look, the intention of this last time was to do this, the words don’t accurately reflect it, can we do this? And usually it just gets a tick.

So you can clean up the enterprise agreement over a number of iterations so everyone understands it and it has to be a top draw document. In other words, the supervisor has to know it and be able to use it. If the supervisor… This is my test. If Nina was the supervisor, I say explain overtime to me and she just looks at me, then I know I’ve got a problem. Okay? All right, next one.

Industrial Action, Deduction and Contingency

All right. Very simply, you must know the nature of industrial action that’s likely by looking at union behaviour. Are they going to refuse to do things? Are they going to be stop works? What are they going to do? But most importantly, you must plan contingency. In other words, what will we do if they take each type of industrial action so that we don’t lose productive cost?

So maybe if you’re a manufacturer, filling your warehouse four months out of stuff that you know you’re going to need, so that when industrial action is taken, actually, it’s cheaper for you, because you’re not paying anyone and you’ve got your warehouse full and you’re doing it, but in any negotiation, contingency comes first. What is the likely industrial action from bans through to stop work? How will I manage those? So bans. I’ll already have my direction to work, to prove that it is a ban, to make a deduction, okay?

But if you don’t do that, doing it in the heat of the moment always goes wrong. And of course, what we’re trying to do is get through a period of industrial disputation with the same levels of profit, not hitting our bottom line really hard. So contingency.

I think we’re getting close to the end. What’s our next one?

Nina Hioang: You’ve got to hurry up and rush.

Andrew Douglas:

Wrap Up Strategy

Wrap up strategy. Okay. So please don’t do a meeting once a week for two hours for 10 weeks. Unions are time poor. They’re like any other supplier. If you’re a smaller business, they don’t have a lot of time, they can’t afford to spend the time there, so deliberately put in half a day and do two half day sessions. If you’re a bigger employer, do two solid days.

The idea at the end of it is, these people get bored, tired, restless, and you actually make a lot of wins by just facing them down. So don’t keep doing it because otherwise the union starts talking about their agenda between each week and suddenly you’ve got things on the table, which comes from the patent agreement, which nobody wants.

That’s why your survey a year out informs you what is the big issue. You focus on what people want. You do it in a dedicated time. And the wrap up is, if people, and you know you’ve got your people on board and the union’s still fighting, put it out for a vote. Don’t be scared for putting it out for a vote as long as what you know is you’ve got room to move after you put it out for a vote, because if it’s your best offer and you put it out for a vote, the next negotiation starts from your highest point. Not a good idea. Okay?

What have we got next?

Remember Total Cost

Total cost. Move on. We’ve already talked that. We build in total cost. That’s all we’re doing.

Manager Role in Cost Neutral

Last part of it is, right from the word go, our managers have to recover the cost of the enterprise agreement. So if the total cost is 13.2% in real terms, then they have to find those savings throughout the business because the cost of supply is going up, margins are reducing at the moment, you must recover the cost. The enterprise agreement can’t put a cost onto an agreement. So I think that probably takes us through to the main topic. With a bit of luck the main topic.

Nina Hioang: Case study you mean.

Andrew Douglas: This case study. Here we go.

Nina Hioang: Please note this case study deals with an employee possibly dying. Milly was not the easiest PA to manage. Belinda was tired of it. Belinda was the CFO and it was the end of financial year. There were not enough hours in the day. Milly rolled her eyes whenever asked to do extra work, gossiped with the other PAs about how tough her life was and how rude Belinda was to her. But Belinda was not rude. Yes, demanding, yes, direct but never abusive or rude. No one had ever said she was rude, except for Milly.

Nina Hioang: Except for Milly, that’s right.

Andrew Douglas: Colin, the CEO, knew there were problems with Milly and how much Belinda struggled. He found Milly crying one night at around 7:00 PM in her pod at work. He asked if she was okay and what he could do. She said they were just busy, she had young children and it upset her because she wanted to be home.

He went into his office, rang Belinda and asked what she was doing at work. Belinda didn’t know. She said she shouldn’t be and to leave at with her. A few minutes later, Belinda appeared at the door. She explained that Milly was having problems with her husband and stayed at work, telling him she was busy just to get a break from it.

Colin asked for Belinda to approach the wellbeing team and arrange support. Two weeks later he saw the monthly wellbeing report had an allocation for Milly and rang Belinda. Belinda said she referred her and was happy she went.

The next day, the Head of People and Culture, Max, made an urgent appointment with Colin. Max told Colin that Milly had been referred to him for help and he had subsequently counselled Belinda about her language and style. Milly had played a recording of Belinda shouting at Milly. It contains swear words and was offensive.

Colin was startled it had not gone further than counselling. He asked why no warning, and Max said that was Milly’s preference. He asked, is Milly safe, should she keep working with Belinda? And finally, is Belinda being observed, trained or otherwise monitored for her behaviour?

Max said she had promised not to do it again and Milly said she was okay with that.

Colin saw Milly several times after that. After that she was different, her grooming was drab, she wore no makeup. She had previously been dressed immaculately and was made up like a model. She made no eye contact and appeared sad. He would ask her how she was and Milly would say, okay, but there were tears in her eyes. Each time he would check in with HR and Max would say she was fine, just adjusting.

Colin found out that Milly had not come to work and no one could find her. Her family were distressed and work colleagues were too.

Andrew Douglas: All right.

Nina Hioang: Gosh, that was a lot of people.

Andrew Douglas: There’s a lot of people in it, but were there prosecutable psychological hazards?

Nina Hioang: Yeah.

Andrew Douglas: Absolutely.

Nina Hioang: Yeah.

Andrew Douglas: Okay. I think this is sort of a live problem and it’s sort of drawn from about four or five examples that Nina and I have worked with, but the answer is Belinda’s behaviour, and even being demanding in the manner in which she’s doing, not allocating work in a way which was understandable, but being abusive and swearing, clearly psychological hazard land and Max’s failure to engage further made that an organisational risk of real substance.

Nina Hioang: But also, Belinda knew of her, about her struggles at home and she also didn’t do anything further with that knowledge.

Andrew Douglas: Yeah. So look, we’ll move a little bit further. What I can say at the moment is, Max as an HR manager was seized with an obligation based on his body of knowledge of what ought to have been done and didn’t do what he ought to have done.

Everyone knows that Milly will say that’s okay, but she’s an oppressed, damaged person. Everyone… Everyone will, in the case of Colin, the CEO, Colin is seeing evidence that a person is damaged. This is Birkin Suncorp stuff. He’s on notice under the obligations to monitor health, that something is not working, and he’s not getting the answers from Max he should be getting.

So he’s made the right inquiries, but he’s not getting the answers he ought to receive. So this goes back to our earlier cases. Yes, he’s made inquiries, but it’s nowhere near enough for what he’s doing. So if Milly had died and it was clear that work was at least partially causative, could anyone be prosecuted? And the answer is, undoubtedly, Colin–

Nina Hioang: Yeah, of course.

Andrew Douglas: -undoubtedly, Belinda, and possibly Max and the organisation, of course, because of attribution.

Nina Hioang: Yeah.

Andrew Douglas: Let’s go on. If Milly was alive but was receiving inpatient treatment at hospital for anxiety and depression, so diagnosable disease–

Nina Hioang: Diagnosable.

Andrew Douglas: Diagnosable disease for Victoria, could she bring a successful workers’ comp claim? 100%.

Nina Hioang: Yes, of course.

Andrew Douglas: If Milly said it was impossible to continue working for the business and when she raised swapping out of her job, Max had said there was no other role and Milly said that it’s unsafe, could she argue constructive dismissal, general protections or discrimination in the manner in which she was treated?

Nina Hioang: How is that constructive dismissal?

Andrew Douglas: Well, it is. So this is constructive dismissal because it is unsafe, it is impossible for her to continue in the role she’s directed to do, without adjustment.

Nina Hioang: But we’re not forcing her to leave the job.

Andrew Douglas: No, no, we’re forcing her to stay and work in an environment that’s impossible for her to stay. So I think it’s borderline constructive dismissal, okay? But I think it’s definitely discrimination, no adjustment.

Nina Hioang: Yes, I definitely think it’s–

Andrew Douglas: See, it works the reverse. Once you get general protections and discrimination because it’s unsafe, okay? So it’s a role that can’t be done. I’m directing you to do something you can’t do, and if you don’t do it, your job’s finished because it’s the only job. It’s constructive dismissal.

Nina Hioang: Yeah, but I don’t know if that would be as strong as the general protections, and I don’t know if the current Fair Work Commission would find that.

Andrew Douglas: Yeah. Well, they’d be wrong.

Nina Hioang: I think it’d be interesting.

Andrew Douglas: But it’s an interesting case, isn’t it anyway? Look, it was designed to agitate for you and I to disagree. Okay? Look, thanks very much.

Nina Hioang: Thank you.

Andrew Douglas: That was a lot of fun today. And I guess with our concentration on officer liability is one because there isn’t a clarity of law from the decisions. There’s been good judgments and good thoughts going in, so although I’ve been critical at the same time, it’s a great case and really interesting.

Nina Hioang: But the point is, it’s not going away.

Andrew Douglas: No.

Nina Hioang: Like it might seem repetitive, but it’s because the regulators and courts are focused on officers now.

Andrew Douglas: And it’s the thin end of the wedge. We’re seeing officers with specific responsibility for the damage that they’ve done being charged, but very shortly, because the legislation is clear, and that’s not only officer’s duties, but reckless endangerment, industrial manslaughter, they don’t require the person to have specific knowledge of the wrong, it is their role that creates the level of risk in it, okay? So we are going to start to see cases which expand upon objective knowledge and governance as being a breach, and I guess that’s my learning for the day.

Nina Hioang: Yeah.

Andrew Douglas: Particularly where the learning comes from a critical risk that the organisation knows is a critical risk and you don’t act upon it.

Nina, great to have you along, as always-

Nina Hioang: Yeah, thanks for having me.

Andrew Douglas: -and well done again for yesterday. See you later.

Nina Hioang: All right. Give us a thumbs up.

Andrew Douglas: Thumbs up, guys. Cheers.

Nina Hioang: Bye.

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