Preparing for bargaining

Preparing for collective bargaining may include choosing and training the bargaining team, drafting a potential collective agreement, and setting up the bargaining process agreement.

Good preparation for collective bargaining helps the process go more smoothly, and efficiently and promotes better outcomes. Preparation should begin well in advance of collective bargaining, for example, organisations should factor bargaining into business planning and budgeting cycles.

Where employees are already covered by an agreement but that agreement is due to expire, bargaining can be started (by a union or an employer) at any time during the last 60 days of the agreement so preparation should start before then.

Preparation for collective agreement bargaining involves following some important steps in law as well as equipping the bargaining team with the knowledge to fully participate in the process.

Preparation includes:

  • understanding the issues and the people involved in the bargaining
  • making sure communication channels are open
  • putting in place a bargaining process arrangement that sets out the parties’ expectations of each other at different stages in the bargaining
  • drafting potential collective agreement terms and conditions.

Ratification process

At the start of the bargaining, a union must state what membership ratification process it will follow before it signs any resulting collective agreement.

Setting up the bargaining process agreement

One of the challenges in collective bargaining is managing the different expectations parties have about what conduct is appropriate. A bargaining process agreement (or arrangement) sets out the parties’ expectations of each other at different stages of the bargaining and the process for conducting the bargaining in an effective and efficient manner. This helps prevent problems coming up that unnecessarily distract or disrupt the negotiations.

The agreement includes:

  • advice about who will be the representatives
  • the size and make-up of the bargaining teams
  • the proposed frequency of meetings
  • the venue and who will pay costs
  • communications between the parties and with other parties (such as the people they represent, and media)
  • the provision of information and associated costs
  • managing disagreements.

The parties have to try their best to agree on the bargaining process arrangement as soon as possible after bargaining has been initiated. The Code of Good Faith in Collective Bargaining has a section on the bargaining process arrangement to help you reach agreement on the bargaining process.

Once the bargaining process arrangement is done, it’s time to start considering the claims made by the other party and the interests of your own team.

Information agreements

You don’t have to have an information agreement, but it can be useful. If employers and unions can agree on information to be provided on a regular basis, they don’t have to argue relevance on a case-by-case basis. An information agreement may need to be reviewed from time-to-time.

The following things can be included:

  • the stages in the bargaining process when information is likely to be required
  • the information likely to be “reasonably necessary” for bargaining
  • a list of items that could be provided and a timeframe for disclosure
  • costs associated with providing information and who will pay them
  • what information may be “reasonably considered” confidential
  • restrictions on the use of information (eg confidentiality agreements)
  • costs associated with an independent reviewer, should the need arise
  • procedures for resolving information disputes.

The parties can agree that they will keep their progress confidential at times. Reaching an agreement on what will be reported publicly and what will remain confidential sometimes helps things along, particularly if a range of options are being discussed.
You can use our resources and information about setting up the bargaining process and information disclosure .

UnionZ initiated collective bargaining with CompanyD after the current collective agreement expired. The parties were keen to get moving and felt they had a reasonable level of communication and trust, so they decided to miss out arranging a bargaining process agreement and get straight into bargaining.

After 2 weeks the union representatives were very happy. They thought they had an agreement they could take to their members for ratification. They approached Mary, CompanyD’s Chief Executive Officer, directly to arrange for the agreement to be signed. Mary was surprised; in their last report her negotiating team had told her that things were going well, but there were still outstanding issues that needed to be resolved before there was agreement. She double-checked with her negotiators, who said they had definitely not come to a final agreement.

Because there was confusion over who had taken the notes of what had been discussed and what decisions were made, and with no agreed ground rules to refer back to, the situation quickly dissolved into an stand-off. Unable to reach an understanding, the parties decided to seek help from Employment Mediation Services.

During mediation, CompanyD and UnionZ agreed that having a bargaining process arrangement with ground rules could have saved time and effort, and may have avoided the stand-off. Dave, UnionZ’s representative, said he hadn’t realised how miscommunication and misunderstandings could flare up because the ground rules weren’t in place. “Hindsight is a great thing but we should have waited before charging into the negotiations and agreed to the way we were going to negotiate,” Dave said.

The bargaining process arrangements could have included dates of meetings, expected timeframes for negotiations, when and how progress is recorded and reported, sign-off procedures, and how the parties would determine when they had finished bargaining.

CompanyD representative, Sue, said she had always thought the push to reach an agreement on how to negotiate was a little bureaucratic and over the top. “It was only after we couldn’t agree that I realised that it’s actually good business and common sense. The procedures don’t need to be rigid but we could have picked some informal but effective ways to improve communications. These could have included an agreed method to record discussions during the negotiations, signing off on a summary of the issues raised and decisions made at the end of each meeting, and emailing different versions of the employment agreement around with tracked changes and comments. We probably also needed processes in place to deal with disagreements or problems, and to make sure that everyone knew what would and wouldn’t be covered in the negotiations,” Sue said.

Mary said the experience had been a learning curve for everyone and they would certainly address this and be prepared next time around. “We did reach an agreement that we were all happy with. At the joint debrief we held after the negotiations, everyone agreed that we will definitely work out a bargaining process agreement before we negotiate next time.” she said.

Making best use of meetings

All steps in collective bargaining have meetings, for example, with the people you represent, the bargaining team during negotiations, and report-back meetings afterwards.

Managing meetings well shows respect for participants and the value of their time. Good meetings help make well-considered decisions and progress in the bargaining.

Each party should take notes in negotiation meetings and they should also record progress in meetings outside of negotiations.

Checklist for meetings outside the negotiation

  • Have an agenda –a good tool for keeping the meeting on track.
  • Cover what needs to be discussed, what needs to be done about it (and who will be doing it, if appropriate).
  • Provide information so they can make the necessary decisions.
  • Manage the meeting through a Chairperson.
  • Find ways to let everyone have a say.
  • Keep a record – simple formats work best.
  • Always recap and clarify decisions before the end of the meeting.

Clarify roles

Chairperson role:

  • creates an agenda, including items from participants
  • sets ground rules and ensure they are upheld
  • sets timeframe for discussion and stick to it if possible
  • agrees on a decision-making process (consensus/majority vote)
  • ensures you stick to the processes agreed.

Note-taker role:

  • decides a format for notes eg create headings: issue/discussion/agreement/timeframe/person responsible
  • puts a name, date and time on each notes page
  • works with the Chairperson to ensure accurate recording
  • checks back with participants for clarity as you go
  • sends out minutes (if appropriate).

You can use our information and resources to help you run effective meetings with your team during the bargaining process.

Drafting a collective agreement template

In collective bargaining, discussing the wording of clauses can take time, particularly if:

  • negotiating a collective agreement to cover a group of employees for the first time, or
  • negotiating replacements for clauses that have been too hard to understand or use.

Parties involved in collective bargaining must act in good faith and must include the legal requirements in their collective employment agreement.

In addition to recording terms and conditions, collective employment agreements can also state an organisation’s approach to employment relations and managing its people, and its business direction and strategies. For instance, a collective agreement may include joint work on improving productivity or workplace culture.

You can use our template to assist you to create a collective agreement [DOCX 105KB]. The template doesn’t replace negotiations, but rather provides a framework for a collective agreement, plus a range of draft template clauses. (Some of these clauses are mandatory and others may be a source of negotiation.)

The template should reduce the time taken to put together an agreement. This means the parties can concentrate on things that may need more attention in bargaining or are specific to the particular workplace (such as the structure of shift or roster patterns).

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