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EBA Masterclass Part II: The Unbeatable Negotiation Strategy

Take Control of the Bargaining Process in Your Negotiation

The first article in this series outlined an estimated negotiation schedule (5 – 8 meetings from ‘cradle to grave’, one week to 10 days between meetings, a 2-3 month process) and tips on how to plan for success when negotiating an enterprise agreement. Part III will provide some killer hacks and tips on: 

  • documenting progress throughout the bargaining process;  
  • drafting your proposed agreement; and  
  • navigating through the Commission’s sometimes fraught approval processes to get your enterprise agreement ‘rubber stamped’.  

This article, however, will outline how you can ‘set the table’ at the initial meeting and control the bargaining process, right from the first moment. In my experience, EBA negotiations can be concluded relatively quickly or only after a long and drawn-out process, depending on the positions, relationship and compromising nature of the parties.  Please be aware, however, it is not uncommon for such a process to take significantly longer than the 2-3 months estimated above. 

Once you have implanted your three necessary planning steps outlined in Part I you are ready for the ‘Initial Meeting’. The initial bargaining meeting is usually held to meet with the trade union acting as the employee bargaining agent – and any Employee Bargaining Representatives (“EBRs”) you have been able to assist employees appoint – to discuss the framework of the proposed EBA. The three tips for the important initial meeting are: 

  • #EBAHack 1 – Step out your organisational objectives;  
  • #EBAHack 2 – Lay out ‘rules of engagement’ for expectations from the union during process; 
  • #EBAHack 3 – Use ‘backpay’ as an important bargaining chip. 

#EBA Hack 1 – ‘Set the table’ for the upcoming process

This introductory meeting is a perfect opportunity to step out your organisational objectives right at this early stage, to ‘set the tone’ and ensure the trade union (and EBRs) are cognisant of your focus and key items for the upcoming negotiation.   

For example, you might ‘kick off’ with something like:  

Management has indicated that as we will be going through significant change in the next 2 years we will continue to provide excellent pay rates to employees, but I must stress we require the employees to be responsive, flexible and adaptive to change.  We’re going to seek clauses in the agreement that provide this.”  

#EBAHack 2 - Nominate ‘rules of engagement’

Further, the initial meeting is also a good point to lay out ‘rules of engagement’ and what you expect from the union.  It is said employers get the union relationship they deserve. I have seen some disgraceful conduct from union organisers on site in Australian businesses (such as trespassing, being in ‘safety sensitive’ areas unannounced, swearing, threatening and belittling others etc.), and I suspect much of this is attributable in some ways to the company concerned allowing inappropriate conduct to escalate unchecked.  

Thus, the ‘rules of engagement’ discussion is crucial in setting out clear, documented, unambiguous employer expectations concerning important negotiation features such as expectations around:  

  • union right of entry (how it will be conducted and whether entry notices are required),  
  • union feedback meetings and  
  • union delegates attending negotiations (including whether such meetings will be on paid or unpaid time),  
  • work and deadline expectations for employees negotiating the agreement;  
  • union membership clothing and paraphernalia distribution etc..    

#EBAHack 3 – Put A timeline On the process

Part of the important ‘setting the table’ or voicing your expectations and desires for the upcoming process will be making crystal clear, right from the outset, the company’s expectations around efficient meetings, and a snappy process.  One good tip here is to reiterate to the union official concerned you want to finalise the proposed EBA negotiation as quickly and effortlessly as possible, and that if the agreement is concluded by a set date, you are willing to backdate the employees’ average annual wage increases from this date (i.e. the start of negotiations, or the date the proposed agreement was lodged with the FWC).   

As part of this approach you would also convey, however, that: if it isn’t concluded by a set date or even some other ‘red line’ is crossed (e.g. such as industrial action being taken against the company) management will be withdrawing this offer of retrospectivity and the longer the process is delayed and drawn out, the longer the employees have to wait for a wage increase.  

You should never, ever, make any commitments at this point that “of course backpay will be paid” as you create an atmosphere whereby there is no incentive for anyone to try and negotiate efficiently and sensibly and you will cost your company (and yourself) many wasted months and tens of thousands of dollars over pointless, ‘Groundhog-day’ bargaining meetings that achieve little.    

End the first meeting on a ‘high’ by thanking the participants for their attendance, exchanging and confirming contact details (and primary points of contact) and seeking to ‘lock in’ agreed meeting times for the next few meetings. Next article (the final Part III), we’ll go through how to swap logs of claims and negotiating out ‘ambit’ claims you are presented with.  

Workplace Wizards partners with employers throughout EBA negotiations to provide you the specialist strategy, legally-compliant documents required by law to be issued through bargaining, tactical tips (relevant to your industry and union organiser), bargain ‘in the room’ with you (if needed) and ensure you are meeting the legally-prescribed procedural and temporal deadlines.  

Contact me on 0458 6444 69 or mark@workplacewizards.com.au for a copy of our ‘EBA Planning for Success Templates’ or to get our specialist help. 

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