Establishing the Right to Bargain Collectively in Australia and the UK: Are Majority Support Determinations under Australia’s Fair Work Act a More Effective Form of Union Recognition?

Abstract The optimal legal and institutional framework for facilitating workers’ access to collective bargaining is a central issue for labour law. Since 2009, Australian labour law has adopted a novel approach to the issue of whether workers should have the right—and employers, the obligation—to engage in collective bargaining. The Fair Work Act 2009 (Cth) (FW Act) seeks to promote collective bargaining in good faith at the enterprise level, by empowering the Fair Work Commission (FWC) to facilitate good faith bargaining and the making of enterprise agreements. One of the key mechanisms available to the FWC is the power to make a majority support determination (MSD), in situations where an employer refuses to bargain and a majority of the relevant employees want to bargain collectively. The making of an MSD then triggers a number of other obligations (including the good faith bargaining requirements) and opens the way to other forms of FWC involvement in the bargaining process. An MSD has the effect of compelling an employer to bargain collectively where it has previously refused to do so. The MSD process is therefore akin to the statutory union recognition procedure operating in the UK and the long-standing union recognition processes that apply under Canadian and US labour laws. However, the Australian iteration of these legislative attempts to address the problem of employer resistance to bargaining is distinctive because it gives the FWC considerable flexibility in the method used to determine majority support for bargaining. For example, the FW Act allows for—but does not require in all cases—a ballot of employees to be conducted in order to determine the level of support for collective negotiations. Other means of establishing employee support, such as petitions, are also permitted. This potentially avoids some of the problems that have affected ballot-based union recognition systems. This article focuses on the operation of the MSD mechanism over the period 1 July 2009–30 June 2015. The article provides some background to the development of the MSD provisions in the FW Act by the former Labor Government. This is followed by an examination of the MSD provisions in the overall context of the FW Act bargaining regime, and their operation in practice, including some comparisons with the main elements of the UK statutory union recognition procedure. The article concludes with some observations about the effectiveness of MSDs in comparison with the statutory recognition procedure in the UK.

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