One Commissioner of the Fair Work Commission has taken a remarkably philosophical and sanguine view of what manipulation of the truth is acceptable without being categorized as a failure to undertake good faith bargaining in enterprise bargaining.
Commissioner Cloghan said of an employer’s criticism of the cynical conduct of a union “Contextualising the test for genuinely trying to reach agreement in terms of moral notions of lying, misrepresentation or misleading statements is, in my view, too narrow and focuses upon a moral principle rather than the totality of the MUA’s actions in negotiations.”
He observed that it would be “unrealistic to have ‘moral authenticity’ or a moral standard for bargaining representatives to be only genuinely trying to reach agreement by never telling a lie or not misleading or representing a position in negotiations”.
“In making this statement, I am not endorsing the view that lying or misrepresentation is justified – bargaining representatives have a general responsibility to tell the truth. However, in industrial disputes where the stakes are important for both sides and emotions can be strained, intentionally or unintentionally, lies, misrepresentation and misleading statements occur.
“Just as Oscar Wilde observed ‘the truth is rarely pure and simple’, lies, misrepresentation and misleading statements are also never pure or simple”.