December 2012 Industry Update

Know your rights on pattern bargaining

There are concerns among employers in the construction industry about the legalities of pattern agreements. This issue is particularly prevalent in Queensland at the moment.

FWBC has created this article as a guide for employers and bargaining representatives to understand their workplace rights and obligations when it comes to pattern bargaining.

What is pattern bargaining?

Pattern bargaining describes a situation where bargaining representatives use a particular workplace agreement as a template to base other workplace agreements on - like cutting agreements from the same pattern.

The agreements contain common terms and conditions. Some examples are site allowance, travel allowance, meal allowance and working from height allowance.

Pattern bargaining occurs when a bargaining representative seeks to make identical agreements with two or more employers.

What is the effect of pattern bargaining?

If employees wish to take industrial action during a bargaining period, for it to be lawful it must be protected industrial action.

The preconditions for taking protected industrial action include:

  • an existing agreement has passed its nominal expiry date;
  • the industrial action is in support of a new enterprise agreement (or is in response to industrial action by the other side) and
  • the industrial action does not involve pattern bargaining.

Pattern bargaining is not permitted unless the bargaining representative is genuinely trying to reach an agreement in good faith with the employer. The factors to determine this are:

  • whether the bargaining representative is demonstrating a preparedness to bargain for the agreement taking into account the individual circumstances of that employer, including in relation to the nominal expiry date of the workplace agreement and
  • whether the bargaining representative is bargaining in a manner consistent with the terms of the agreement being determined as far as possible by agreement between that employer and its employees.

If a bargaining representative wishes to rely on these factors to prove that they are genuinely trying to reach an agreement in good faith, they have the burden of proving that the above factors apply.

Coercion

It is unlawful for a bargaining representative to organise or take action against an employer, or threaten to do so, with intent to coerce the employer to do something they don’t want to do – such as sign up to a pattern agreement.

What do I do now?

Fair Work Building Industry Inspectors are available to take your call seven days a week on 1800 003 338. We can provide you with advice and assistance on agreement making.

If there are any issues you would like to see us write about in the January 2013 edition of the Industry Update, please let us publicaffairs [at] fwbc.gov.au (subject: Industry%20Update%20article%20suggestion) (know).

Further information:

Fair Work Ombudsman Fact Sheet - Enterprise Bargaining

Fair Work Act 2009, s412

FWBC Fact Sheet – Coercion

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