Fair Work Commission

Positions & interests

When bargaining for an enterprise agreement, parties usually approach the negotiation process with a list of positions or claims, rather than a list of interests that underpin them.

Example

For example, in an enterprise bargaining negotiation a union may put forward the position (claim) of a 5% pay rise. The employer may say they cannot afford this increase in wages.

In an interest-based negotiation the union would explain the underlying reason for the claim, such as the rent increases experienced by employees who live locally. The employer would explain why they could not afford to pay the 5% pay rise, such as the entrance of a new competitor offering services to clients at a lower rate than currently charged by the employer.

Together they would identify some options that could meet both parties' interests. They might arrive at a lateral solution that involves a lower increase to the base rate, a redoubled effort to differentiate the quality of their offering to the client, and an agreement that the gains from additional profitable sales will be shared with the workforce.

The Commission's New Approaches: Cooperative and productive workplaces jurisdiction provides parties with tools to approach bargaining from an interest-based perspective, and seeks to minimise the amount of disruption and disputation that can accompany traditional bargaining techniques.

What is interest-based bargaining?

In interest-based bargaining, the parties to a negotiation approach the process by identifying their individual or shared interests, rather than focusing on their positions or log of claims.

Some interests are shared, some are different, and some are conflicting. Successful, productive negotiations recognise and find ways to balance these interests.

By identifying individual or shared interests, the interest-based bargaining process uncovers ways that each party's interests can be met without disadvantaging the other party.

Interest-based bargaining processes are usually facilitated by an independent person, and generally open with discussions around an issue and each party's interests. Joint problem solving sessions follow, and decisions are made by the whole group following assessment of each option against a set of agreed criteria.

Sub-groups to progress a particular issue may be formed, but information is shared and final decisions are made by consensus. Options are assessed against criteria developed by the broad negotiation group, and may be trialled before they are fully implemented.

What is traditional bargaining?

In traditional bargaining, sometimes called adversarial or positional bargaining, the parties generally prepare separate opening positions, or 'logs of claims'.

These positions will usually be developed by each party in consultation with its membership or constituency. The claims are often inflated, or 'ambit', with an expectation that the final outcome will be less than the position put to the other side.

Negotiations will progress through a series of offers and counter offers. Each side will have private meetings to discuss offers and concessions, and information is not generally shared. Facilitators or external parties, including the Commission, are usually only brought into the negotiation during a impasse in the process.