Crafting Remedies for Bad Faith Bargaining, Coercion and Duress: 'Relative Ethical Flexibility' in the Twenty-first Century
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The Workplace Relations and Other Legislation Amendment Act 1996 (Cth) deleted the former statutory requirement that employers and employees must bargain fairly and in good faith with each other. Nevertheless, notions of bargaining in good faith, unconscionability and fair dealing continue to figure in the legal and industrial strategies of the parties, and in decisions made by the Australian Industrial Relations Commission and the Federal Court. Indeed, both employers and unions, usually repeat players, have sought arbitral remedies from the commission to counter perceived unfair bargaining conduct, as well as remedies from the court to stop or punish alleged coercion and duress in bargaining. The focus of this article is to uncover the practical operation and interaction of the relevant provisions and the efficacy of the available remedies, not only for the parties concerned, but for industrial strategies in general. It is argued that the commission and the court construct these provisions and remedies in ways that support employer strategies and interests to the detriment of unions and employees, thus shifting the balance of bargaining power even further in favour of employer parties. It is far easier for employers to limit the ethical flexibility permitted to unions and employees in bargaining, than it is for unions to compel employers to bargain fairly
Australian Journal of Labour Law
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