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Good Faith and the Fair Work Act: Its Potential, in Light of the New Zealand Experience

Published online by Cambridge University Press:  01 January 2023

Shaunnagh Dorsett  and
George Lafferty
Shaunnagh Dorsett
Affiliation:
Faculty of Law, University of Technology, Sydney
George Lafferty
Affiliation:
School of Management, University of Western Sydney
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Abstract

This article addresses the potential of the Fair Work Act’s good faith bargaining provision to enhance good faith bargaining and employment relationships, using New Zealand’s good faith provisions under the Employment Relations Act 2000 as a comparative frame of reference. It explores the limitations of the Fair Work Act’s compliance-based approach to good faith, which consists mainly of the parties presenting a legally defensible appearance of not acting in bad faith. In contrast, the New Zealand legislation aims to suffuse good faith with considerable content and definition, enabling parties to the employment relationship to extend good faith well beyond bargaining. In contrast to the Employment Relations Act, the formalistic, procedural approach promoted by the Fair Work Act is unlikely to encourage a significant cultural change towards meaningful good faith principles and practices.

Keywords

Australian workplace relationsFair Work Act Australiagood faithlabour lawunion-management relationsNew Zealand workplace relations
Type
Symposium: Assessing the Fair Work Act
Information
The Economic and Labour Relations Review , Volume 21 , Issue 1 , October 2010 , pp. 53 - 67
Copyright
Copyright © The Author(s) 2010

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References

Anderson, G. (2006) ‘Transplanting and growing good faith in New Zealand labour law’, Australian Journal of Labour Law, 19 (1), pp. 1–29.Google Scholar
Attorney-General and Minister for Families, Housing, Community Services and Indigenous Affairs (2010) Discussion paper: Leading practice agreements: maximising outcomes from native title benefits, available: http://www.ag.gov.au/www/agd/agd.nsf/Page/Indigenouslawandnativetitle_Nativetitle_Nativetitlereform#governance [accessed 1August 2010].Google Scholar
Burnside, S. (2009) ‘Negotiation in good faith under the Native Title Act: A critical analysis’, Land, Rights, Laws: Issues in Native Title, 4 (3), pp. 1–16.Google Scholar
Cooper, R. and Ellem, B. (2009) ‘Fair Work and the re-regulation of collective bargaining’, Australian Journal of Labour Law, 22 (3), pp. 284–305.Google Scholar
Cox, A. (1958) ‘The duty to bargain in good faith’, Harvard Law Review, 71 (8), pp. 1401–1442.CrossRefGoogle Scholar
Department of Labour (2009), The Effect of the Employment Relations Act 2000 on Collective Bargaining, Department of Labour, Wellington.Google Scholar
Duvin, R. P. (1964) ‘The duty to bargain: Law in search of policy’, Columbia Law Review, 64, pp. 248–292.CrossRefGoogle Scholar
Freeman, R., Boxall, P. and Haynes, P. (eds) (2007), What Workers Say: Employee Voice in the Anglo-American Workplace, ILR Press, Ithaca and London.CrossRefGoogle Scholar
House of Representatives (2008), Explanatory Memorandum, Fair Work Bill, Parliament of the Commonwealth of Australia, Canberra.Google Scholar
Knowles, A. (2003) Reviewing the Employment Relations Act, Business New Zealand, Wellington.Google Scholar
Lafferty, G. and Kiely, P. (2008), Employment Agreements: Bargaining Trends and Employment Law 15, Industrial Relations Centre, Wellington.Google Scholar
Lee, M. (2005) ‘Crafting remedies for bad faith bargaining, coercion and duress: “Relative ethical flexibility” in the twenty-first century’, Australian Journal of Labour Law, 18 (1), pp. 26–52.Google Scholar
McAndrew, I. (2006) ‘Employers, unions and workplace partnerships in New Zealand’, New Zealand Journal of Employment Relations, 31 (3), pp. 51–65.Google Scholar
McAndrew, I. and Penn, S (2003) ‘Collective bargaining under the ERA 2000: Report of a workshop on negotiation’, New Zealand Journal of Industrial Relations, 28 (2), pp. 170–182.Google Scholar
McCallum, R. (2000) ‘Trade union recognition and Australia’s neo-liberal voluntary bargaining law’, Relations Industrielles/Industrial Relations, 57 (2), pp. 225–251.CrossRefGoogle Scholar
McClelland, R. (Attorney-General) (2008) Speech at the Negotiating Native Title Forum, Brisbane, available: http://www.attorneygeneral.gov.au/www/ministers/mcclelland.nsf/Page/Speeches_2008_FirstQuarter_29February2008-NegotiatingNativeTitleForum [accessed 1 August 2010].Google Scholar
Ministry of Health, District Health Boards, New Zealand Council of Trade Unions (with health sector unions) (2007), Health Sector Relationship Agreement, Ministry of Health, Wellington.Google Scholar
Rathmell, A. (2008) ‘Collective bargaining after WorkChoices: Will “good faith” take us forward with fairness?’, Australian Journal of Labour Law, 21 (2), pp. 164–199.Google Scholar
Telstra Corporation Limited (Telstra), Australian Council of Trade Unions (ACTU), Australian Communications. Electrical and Plumbing Union, Community and Public Sector Union, Association of Professional Engineers and Scientists Australia (2009) ‘Telstra and communications industry unions agree on important principles’, media release, 1 July.Google Scholar