Good Faith Bargaining Downunder

Pam Nuttall
Auckland University of Technology – Faculty of Business & Law

Breen Creighton
RMIT University

May 17, 2011

Abstract:

The purpose of this article is to examine the provisions that have been adopted by the Australian and New Zealand legislatures to encourage good faith bargaining and to attempt an assessment of the extent to which those measures have achieved, or have the potential to achieve, their objective. For almost a century the two jurisdictions uniquely relied on compulsory conciliation and arbitration rather than collective bargaining as the principal means of regulating terms and conditions of employment. With the shift to greater reliance on collective bargaining and individual employment contracts, good faith requirements have been viewed as a means of ensuring continued collective coverage and the maintenance of union density. Detailed analysis of the statutory provision and their interpretation is set in the context of a brief historical overview of the preceding conciliation and arbitration regime, followed by some tentative conclusions about the efficacy of statutory regulation as a vehicle for promoting good faith bargaining.

Good Faith Bargaining Downunder

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