EBA Bargaining Stage 4 – Top 3 Tips to Secure an ‘In Principle Agreement’ and Consider Drafting

In the previous articles I provided tips on how to plan for EBA negotiation success, how to ‘set the table’ at the start of the negotiation and control the process, and then how to trade claims and ‘maximise the pie’ when trading claims (see previous articles at my HR Daily Community or www.workplacewizards.com.au/blog). This article is how to take the various claims which have been agreed in-principle, and transform them into agreement clauses.  An introduction of individual clauses towards the end of the negotiation process is a good way of beginning to get some agreement terms agreed to, which reduces the work at the drafting stage.

In some instances, agreement drafting will require little work, simply changing some numbers or minor wording.  In others, significant re-drafting will be required to ensure the inserted wording (such as in a ‘Dispute Settlement Procedure’ or a ‘Classification Review’ clause) significantly changes the understanding and application of the clause and, by implication, the agreement itself. 

The final bargaining meetings are usually concerned with providing a draft to the union, jointly discussing amendments from the last agreement and demonstrating where agreed issues have been inserted into the proposed agreement. Depending on how pernickety the particular organiser is concerning the proposed agreement wording, it may only take around two meetings to agree on an agreed draft, or significantly longer.

As practical and sensible HR managers your urge will understandably be to modernise an out-dated, vague and horribly convoluted ‘legacy’ EBA to be short, sharp, clear and concise. However, reject the temptation to cut! There is a rash of inexperienced union officials learning their craft at present and “change equals loss”. You might be changing the most out-dated and innocuous clause but, for them, not knowing the background and reasoning for such a clause in the agreement (that was the last organiser who is now in Parliament!), its removal might equal a diminution of members’ entitlements. Thus, unless you want to ‘poison the well’ and make this last bargaining stage unnecessarily difficult, be sure you explain changes to the official, and ensuring he/she is ‘on the bus’ regarding the change not being a reduction in terms. Failure to properly do so will result in a timid, greenhorn organiser resisting you at every clause, afraid to report back to an Industrial Officer at head office with a range of changed (reduced?) clauses they don’t understand.

Smooth their path, and your own, by only changing what is needed, or making changes that you know they fully understands and will be able to clear with their IO.  Make the changes you need, clean up the clauses you must, and move to agreed ‘final draft’ of the proposed agreement as quick as you can.

I am often questioned that the above approach – with a negotiation over ‘claims’ and the funnel, and then moving later to clause wording – is duplication and both claims and wording should be tackled in one hit. ‘I’ve drafted the agreement we want, it is far superior, ill put it on the table meeting 1 and discuss that’.

If you have a good organiser and a developed relationship I can see how this would be a valuable time-saving strategy. However, such a process is to be avoided otherwise as it inevitably gets ‘bogged down’ insofar as the organiser involved will be in meetings 1 and 2 head down, flicking through the draft, focussing on words not claims, and becoming fixated on what specific words have been replaced, and why! All this is going on when you really want to be talking aspirations and claims, establishing eye contact and rapport, and building the foundations, not fixating on why clause 36.2(ii) has “will” instead of “shall”. Save yourself the pain, ensure the first half of the negotiation is claims-based.

How did you find this article? What prevented (or assisted) you in getting to an ‘in principle’ agreement?

Workplace Wizards partners with employers throughout EBA negotiations to ‘close out’ negotiations and draft, review and finalise proposed EBA wording. Email mark@workplacewizards.com.au for previous articles in this series or to find out more.

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