Unfair Dismissal Lawyers Melbourne

EBA Masterclass Part III: Negotiating the Ideal EBA

Negotiate the Best Enterprise Agreement for Your Organisation

In the previous two articles – see here and here – we provided tips on how to plan for EBA negotiation success and then how to ‘set the table’ at the start of the negotiation and control the process to maximise your chances of success. This article will give you key insights in how to trade ‘log of claims’ items and ‘maximise the pie’ at the bargaining table.

The early meetings in an EBA negotiation are usually concerned with discussing the ‘log of claims’ received from the relevant trade union (or the site ‘wish-list’ from employees acting as their own bargaining agents).

This document is a historical one, from when a trade union seeking an award would serve a “log of claims”, or a statement of desired terms and conditions of employment, on an employer or an employers’ organisation. The rejection of this log by the employer was ordinarily sufficient to create an industrial ‘dispute’. In order to assist in ensuring the employer rejected the log of claims (and thus triggering a ‘dispute’), the log of claims would usually contain a range of fanciful claims which the union sought – such as 15% average annual wage increases. This was referred to as ‘ambit claims’.

In order to fight ‘fire with fire’ management should have their own ‘management log of claims’ which they have carefully developed relevant to their organisational needs (see article 1 in this series). Thus, the early meetings in this process are involved in discussing the ‘union log’ and stepping the union and employee bargaining reps (“EBRs”) through the organisation’s own log of claims. By the end of Meeting 3 you should aim to have complete logs of claims from both sides, and a commitment from the parties that the claims in the logs of claims will be the only claims introduced throughout the negotiation.

The next set of meetings (say 4 to 7) are usually concerned with reaching agreement on some aspects of the logs of claims. In our experience, working through the logs of claims should be performed with a ‘funnel’ approach. That is, the wide ambit of claims is reduced by first dealing with the matters that are perceived by your organisation to be minor or less-costly to operations. They can be agreed to or traded for the more minor employer claims. Through controlling the process you then direct negotiation to the second ‘tier’ of claims, which your organisation considers to be more of an imposition on your operations, but have not been identified as the most significant or costly claims. Lastly, these most costly or most significant demands are tackled, which will likely constitute the most difficult items to negotiate.

It should be noted that depending on the number of items in the logs of claims to be agreed upon, and the willingness to compromise between the parties, it may take you significantly longer than five or six meetings at this stage to reach agreement on the key items which will be drafted into the proposed agreement. Our top three tips during this mid-point of the negotiation include:

EBA Hack #1 – Pick the Low-Hanging Fruit First

Don’t begin by tackling the most difficult claims, as the process will inevitably break down at a very early stage. Adopt the funnel approach as outlined above, which builds rapport between the bargaining participants, shows a demonstrated willingness to negotiate and resolve issues between them, and assists prepare the parties for the resolution of the more difficult claims which lay ahead.

Your bargaining position when discussing (and rejecting claims brought, or pushing for your claims to be accepted) will be strengthened by data and figures, such that you can put a number or evidence to support your position. The rejection of a claim with “this has to go, it cost us $300K last financial year” sounds a lot stronger than “this should go, it probably costs us a heap of money”. Plan, cost and persuade!

EBA Hack #2 – Establish Rapport and Own The Process

Negotiation is a ‘give and take’ process that, when conducted well, leaves all parties feeling good about the result they have created (they have ‘skin in the game’ in American parlance) and committed to achieving the deal they have worked so hard to achieve. This commitment achieved through much discussion, bargaining, education, influencing and it takes place often without the assistance of an impartial third party. The participants have to ‘own the process’.

Take the time to try to achieve a proper result. Condensed processes such as “we’re meeting the union and will knock it over in a day-long meeting” or “we’re having two half hour meetings and that’s it” aren’t conducive to enabling this commitment to be built and isn’t the most fertile environment for a successful outcome to bloom. Follow our suggested negotiation schedule for the best chances of this process to ‘bear fruit’ (see earlier articles).

EBA Hack #3 – Give a bit to get a bit

Don’t categorise everything as ‘high importance’ or ‘crucial’ and disregard everything presented from the trade union or EBRs as ‘impossible’ or ‘too expensive’. Employers have to be realistic about why claims have been forwarded, whether there is merit in incorporating the claim (or at least the sentiment behind the claim) in some way, and an honest and open (that is, with other management input) about what change is achievable at the bargaining table and what may need to be incorporated/conceded.

To this end, managers might learn much from an ‘principled negotiation’ theory, which is in essence the application of relevant information-sharing, creative exploration of concepts/claims, and working toward mutually beneficial solutions. See “Getting to Yes”  (Fisher and Ury, 1981), and the ‘Seven Elements of Principled Negotiation’, for this stage of industrial negotiations and working through the multitude of proposed claims.

How did you find this article? What did you do in your EBA negotiations that enabled you to trade/negotiate claims and achieve a positive outcome?

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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