Originally Posted by
Chronic Snoozer
Nor does either side have to make concessions. There is however, the matter of capricious or unfair conduct.
The Fair Work website has some good information on bargaining requirements. Here is a link:
https://www.fwc.gov.au/good-faith-ba...representative
Here is what it says regarding refraining from capricious or unfair conduct:
The requirement in section 228(1)(e) ('refraining from capricious or unfair conduct ...') is intended to cover a broad range of conduct. For example, conduct may be capricious or unfair if an employer:
fails to recognise a bargaining representative
does not permit an employee who is a bargaining representative to attend meetings or discuss matters relating to the terms of the proposed agreement with fellow employees
dismisses or engages in detrimental conduct towards an employee because the employee is a bargaining representative or is participating in bargaining, or
prevents an employee from appointing his or her own representative.[8]
Whether conduct is capricious or unfair can only be ascertained by an examination of all of the circumstances in a particular case.[9]
Capricious is defined as 'guided by caprice; readily swayed by whim or fancy; inconstant' and caprice as 'an unaccountable change of mind or conduct…' in The New Shorter Oxford English Dictionary as cited in Liquor, Hospitality and Miscellaneous Union v Foster's Australia Ltd.[10]