In the perfect business world we have continuing revenue growth, proportionate profits, highly loyal customers, and a workplace culture which is productive, vibrant, innovative, and flourishing. Like the impact of the Global Financial Crisis a small seemingly insignificant act of impetuousness, bravado, or a simple ignorant act can change that perfect business world in an instant, from which the recovery could be long, slow, costly, and may change the workplace culture forever.
Question: Just what do General George Custer and Sitting Bull have to do with our Industrial Relations situation in Australia and Bargaining for an agreement? Well Custer made some simple mistakes which we can help you avoid.
Picture 1: You catch an employee with their 'hand in the till.' You boot them out the door quicker than a Brett Lee bouncer. The next thing you know you have an unfair dismissal claim and with some bewilderment you contact your local lawyer who thinks you have water tight case. But have you??? Picture 2: You get a note of intent to bargain from your local union. But being the 'big man about town' you decide its time to make a stand and flatly refuse to enter into any sort of negotiations and suddenly it's 'Custer's last stand' re-enacted. But what exactly happened to General Custer at the Battle of Little Bighorn in 1876???
Our Unfair Dismissal Laws
Essentially incorporated businesses covered by the Fair Work Act 2009 ('the Act) and it's regulations plus all business located in Victoria, NT and ACT. South Australia, Tasmania, and possibly Queensland may soon need to work to the provisions of the Act if not incorporated. In essence while there are some exemptions from claiming unfair dismissal, the harsh, unjust, or unreasonable test come into play. Now that your 'Brett Lee bouncer' has had the effect of taking out the long established employee, and in your view it's a blatant case of serious misconduct. There is still a requirement even in the most obvious of cases in going through a process to establish that your termination was not harsh, unjust, or unreasonable.
In order to have a water tight case (if there is ever one as the odd bouncer can squeeze through the helmet grill) you must show you have engaged in a process. In this case this includes asking questions of yourself like:
Was there a valid reason for the dismissal?
Was the employee notified of that reason?
Did I give the employee an opportunity to explain?
Did I afford them an opportunity to have a support person present?
Was there a warning where the dismissal involved unsatisfactory performance?
Did the size of the business or the availability of Human Resource expertise have an effect on the dismissal?
Have I listened to the employee's explanation and have I genuinely followed up any explanation raised?
Does the 'punishment fit the crime?'
Does this employee's long history of good service warrant summary dismissal?
Even small businesses (definition under 15 employees) may not escape or be immune from unfair dismissal laws if an employee's length of service is greater than 12 months.
There is now a Small Business Fair Dismissal Code. In summary small businesses may need to show they have gone through a process to justify a dismissal and are not automatically exempt from an unfair dismissal application.
Tip: Duck the bouncer and sit back and contemplate your next move by asking yourself some of these basic questions. If in doubt ask someone who knows as the cost and time associated with these claims can be prohibitive.
Good Faith Bargaining (GFB)
Without keeping you in suspense, what was Custer's one major mistake?
Effective information and research.
For all the planning with the other military division Custer's information was wrong and it cost him dearly. His information gathered from his Indian Agents was inaccurate as to the numbers of Indians at Sitting Bull's disposal. Reservation Indians had joined for the buffalo hunt but clearly their intentions were different.
Remember it could take just one member of a union, or someone who does work covered by that union, for you to commence a bargaining engagement. GFB requires you to then engage on the basis of 'good faith', but it doesn't require you to come to an agreement. Say What!!
The following are the good faith bargaining requirements that a bargaining representative for a proposed enterprise agreement must meet:
attending, and participating in, meetings at reasonable times
disclosing relevant information (other than confidential or commercially sensitive information) in a timely manner
responding to proposals made by other bargaining representatives for the agreement in a timely manner
giving genuine consideration to the proposals of other bargaining representatives for the agreement, and giving reasons for the bargaining representative's responses to those proposals
refraining from capricious or unfair conduct that undermines freedom of association or collective bargaining
recognising and bargaining with the other bargaining representatives for the agreement.
The good faith bargaining requirements do not require a bargaining representative to:
make concessions during bargaining for the agreement
reach agreement on the terms that are to be included in the agreement.
Tips:
Unlike Custer know your 'enemy'. Work with the union or bargaining agent to achieve the most positive result for the employee and the Company, not the Union or bargaining agent.
Communicate with your employees. Find out what makes them tick.
Do your research. It cost Custer his life. Your research will make your agreement alive and viable. Analyse the areas that need improvement and categorise your items for the agreement. Identify those items that you may concede and also those that you will make your last stand with.
Communicate with your employees, continually
Never ever act dishonestly as it could not only land you your own costly battle of Little Bighorn in the courts, but it could also decimate your relationship with your employees and damage the workplace culture of the business.
Remember: The Union or the bargaining agents are NOT the enemy.
Some of Custers last words just before being killed, "Hurrah boys, we've got them. We'll finish them up and then go home to our station" Shortly after he was ambushed by those he was finishing.
(taken from 'I fought with Custer': Charles Windolph, Frazier Hunt and Robert Hunt)
How wrong can you be!!!!
If you would like further information on this article, or would like to discuss what it means for your business, please feel free to call me on 0432 822 667 or email me at colin@visionarysolutions.net.au
Colin Shaw Visionary Solutions www.visionarysolutions.net.au
