In December 2022, the Fair Work Legislation Amendments (Secure Jobs, Better Pay) Act 2022 (Cth) was passed. A number of enterprise agreement and bargaining changes came into effect from the commencement date with more to come in June 2023.

While some of those changes are significant and the enterprise agreement-making process has changed, the art of negotiating an enterprise agreement (EA) still operates largely within the principles established over more than a decade.

In this article, we provide some useful tips for your business’ proposed negotiation strategy.

#1: Prepare a log of claims for the business

Some businesses view enterprise agreement negotiations as a ‘one-way street’, in which the business’ sole focus is to determine which claims can be accepted and which can be fended off.

However, negotiations should be viewed as a collaborative process, working both ways. Businesses should take the opportunity before starting negotiations to consider which EA terms work, which don’t, which are ambiguous or potentially incorrectly applied, and which can be amended to enhance flexibility, productivity, cost reductions, or a combination of these.

Improved employee terms and conditions should not necessarily be awarded without the business getting something in return. Our Workplace Relations Consultants are experienced in reviewing EAs and providing businesses with a valuable insight into which terms are no longer compliant with legislation, which might need to be added, and/or which appear to be ambiguous.

#2: Prepare for every meeting

Ensure you prepare before every negotiation or bargaining meeting. Consider every claim made by the other side, put yourself in a position where you can back up what you intend to say, and don’t be tempted to give a response that you have not had sufficient time to consider or look into.

Rushed responses can weaken your position and affect the reliability of future responses. Be confident in what you have to say and why certain claims cannot be accepted or adjusted.

Our Workplace Relations Consultants can assist with benchmarking exercises and/or providing you with insights into industry trends (which can be used to guide and/or support the business’ position on certain claims).

#3: Consider every claim (within reason) and explore alternatives

Don’t discount an employee/union claim before discussing the merits of the claim and the driving force behind the making of the claim.

The claim may have been made because of employees simply wanting better terms of employment. However, it may also be due to confusion or a lack of awareness of similar terms currently provided by the business, or by some managers incorrectly applying the current benefits, or an unawareness of why such a term cannot be provided or has not been provided in the past.

Discussing why a claim has been made, as well as possible alternatives, not only helps a business meet its good faith bargaining requirements but may assist in finding a mutually acceptable way forward – or explaining why the claim cannot be accepted.

#3: Keep cool, calm and collected

Negotiations can become passionate or fiery at times, especially if employee representatives have an audience and a point to prove. The most important thing is to remember that fighting fire with fire rarely improves the situation. It can distract you from what you’re there to do. It is also most likely a reaction which the protagonist was seeking in the first place.

Ensure you remain professional and on point. This will promote an appearance of strength and confidence in the business’ position. Our Workplace Relations Consultants are well acquainted with being ‘at the bargaining table’ and can lead discussions on the business’ behalf, should you wish.

#4: Draft with care

When negotiating over new or existing clauses, ensure you agree on the specific wording once you have agreed the general concept.

The difference between “The employer must…” and “The employer will endeavour to…” may seem insignificant at the time but is a key distinction in the event of a dispute. Therefore, it’s best to ensure you’re not just negotiating over principles but giving suitable attention to the intent of the agreed term and the specific wording that will be incorporated into the EA.

Our Workplace Relations Consultants are highly experienced in EA drafting and well aware of the pitfalls of a misplaced comma or unnecessarily prescriptive content.

#5: Get advice

Enterprise Bargaining is a skill that develops with practice. It may be something you engage in once every two to three years at the most. The process can be quite technical and terms such as ‘good faith bargaining’ are often misunderstood or even misrepresented.

The rules of engagement for the bargaining room are well-established. Make sure you understand in advance what should and shouldn’t happen once you embark on the significant exercise of agreeing terms and conditions for your employees for up to four years or even longer! Our Workplace Relations Consultants are here to help you confidently and successfully navigate what can be a confronting and potentially time-consuming and costly exercise.

How the Victorian Chamber can help

The Victorian Chamber has a team of Workplace Relations and Health, Safety and Wellbeing Advisors and Consultants. The team has an impressive background and a wealth of experience in enterprise agreement negotiations. From advising you on the process and strategising, to drafting clauses and/or sitting at the bargaining table as your lead negotiator, we can do as much or as little as you require.

For more information on how the Victorian Chamber can support your business or to access our consulting services call us today on (03) 8662 5222.