Initiation of or starting bargaining is a simple process for each party to follow
- Bargaining is initiated by a party sending a notice of initiation of bargaining.
- Each of the intended parties to collective bargaining must get (or give) a notice of initiation of bargaining.
- The parties to collective bargaining must include at least one union and one employer; other parties can be added after bargaining has begun as long as the parties agree (and all legal requirements are met).
- The notice of initiation of bargaining is a signed letter by the union or the employer that says that the party intends to bargain for a collective agreement. It also names the intended parties to bargaining and states who or what type of work the agreement is intended to cover (coverage clause). This is a legal requirement before bargaining can take place. The notice in writing can be signed by the union or employer, or their agent, initiating.
- The coverage clause is proposed by the party who starts the bargaining. This describes either the work or the employees, or both, that they wish to cover. The coverage clause is negotiable in the bargaining, for instance, a union may seek to cover managers and an employer may oppose this.
- A secret ballot of union members or employers must be held if more than one employer or union is named as a party in the notice initiating bargaining.
If this process isn’t followed, for example, a party sends a draft collective employment agreement instead of a notice initiating bargaining, then bargaining hasn’t been initiated.
Under the 2018 changes to the Act, unions can initiate collective bargaining 20 days ahead of an employer, which restores the Act as it was prior to 2015.
In the case of a single employer collective agreement between a union and employer, a union can initiate bargaining within 60 days of the expiry of the applicable collective agreement, while an employer can initiate within 40 days.
If there is more than one applicable collective agreement in force, the earliest date that a union can initiate bargaining is the later of two possible dates:
- Within 120 days before the date the last applicable collective agreement expires; or
- Within 60 days before the date the first applicable collective agreement expires.
For employers, the timeframes are 100 days and 40 days respectively.
An applicable collective agreement refers to an agreement which binds employees whose work is intended to come within the coverage clause for bargaining.
A union can initiate bargaining at any time. An employer can initiate bargaining but only if:
- there is, or has previously been, a collective agreement, and
- it covers some employees whose work is covered by the proposed collective agreement.
If a union or employer wants to initiate bargaining they first need to calculate the 60- or 120-day period by:
- working out who the employees are whose work is covered by the proposed collective agreement, and
- checking whether any of those employees are covered by a collective agreement and, if they are, then find out:
- when the existing collective agreement will expire, and
- how many days will pass before that date.
Process for initiating and responding to initiation of bargaining
|Party initiating||Party receiving notice of initiation|
|If a union is initiating multi-party bargaining, they must ballot their members before initiating bargaining.
Draft a notice initiating bargaining: a signed letter saying:
This can be signed by the employer or agent for the intended party or parties. You can use a draft notice for advocates to send to an employer when they initiate bargaining.
|If an employer is initiating multi-party bargaining, unions may ballot their members after receiving the notice of initiation.|
|Forward the notice to the other party or parties. If this is the first time you have initiated bargaining with that party, providing them with supporting information can be helpful for understanding the process before negotiations begin.||Read the notice carefully; if the notice is confusing, ask the initiating party to clarify.
The coverage clause is negotiable in the bargaining so any issues a party has with it can be looked at during bargaining rather than during the initiation of bargaining process.
If the other party asks for clarification, provide this to them.
Let all employees (even if they’re not union members) who might be covered by the coverage clause know as soon as possible after getting the notice and not more than:
You can use a draft notice for staff to advise them of initiation of bargaining.
|If a union gets a request to consolidate bargaining, within 30 days of getting the request they must either:
If all the unions agree to the request then each notice is consolidated into bargaining for a single collective employment agreement.
If an employer has had notices initiating bargaining with similar coverage from more than one union, the employer can request each union to consolidate the bargaining. The employer must request consolidation within 40 days of receiving the first notice.
Employers must bargain for multi-employer collective agreements (MECAs) where initiated
Under the 2018 changes to the Act, employers can no longer opt out of bargaining for a multi-employer collective agreement (MECA).
While the Act now requires an employer to enter into MECA bargaining and, in doing so, bargain in good faith the Act does clarify that a genuine reason for not concluding a MECA may include opposition to concluding a MECA if this is based on reasonable grounds.
This means that MECA bargaining could result in a single employer collective agreement without breaching the duty of good faith.
This reverts the Act to the position held before 2015, which requires an employer to enter into multi-employer bargaining when they receive a notice of initiation.
Tools and Resources
Collective Employment Agreement Template - DOCX 107KB
A framework for a collective agreement, plus a range of draft clauses. Currently being updated to reflect the Employment Relations Amendment Act 2018.
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