#BTColumn – Acting in good faith

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By Dennis De Peiza

In the practice of Industrial Relations, there is the expectation that coming out of any discussion, consultation or negotiation, the parties involved will commit to implementing or executing decisions or understandings agreed upon. Where there is a collective bargaining agreement, there is an even greater expectation that the terms and conditions of the agreement will be respected and not subject to manipulation or being unilaterally varied by either party; without the knowledge and consent of the other. The making of a commitment is basically a promise which is supposedly made in good faith. A breach in not fulfilling the commitment, calls into question the honesty, sincerity and credibility of the individual making the declaration.

In summarising the act of good faith, it basically boils down to being about the sincerity in the intention and is not about the parties misleading each other. In reaching decisions, and understandings and in the making of a commitment, there is always the implied intention of good faith. The problem comes when one party fails to deliver or execute, and moreover, resorts to finding excuses for their failure or inaction. This can contribute to the breakdown in the relationship between the parties, leading to a loss of confidence and trust. It is typically for this development to have implications for the state of communication which the parties subsequently enjoy.

Either the employer or employees can be justly accused of a breach of good faith within the workplace. Employees and the trade union representing them at the workplace, are known to voice their disgust over what is termed as the hidden agenda of the employer. This is where the employer stands to be accused of having questionable motives for their actions and acting in an unfair manner by not disclosing and sharing information that informs the decision-making process.

When a trade union as the representative of the workers meets with the employer and enters into negotiations at the bargaining table, or engages in any form of consultation, it is accepted that the deliberations are based on the spirit of good intentions. Good faith is therefore implied, and there is the belief that the parties would do nothing to undermine and compromise the deliberations. Moreover, it is expected that they will honour any commitments, decisions, and understanding that form part of the agreements reached. It is usually the case that the breach by the employer, which includes the government, lends to the creation of a hostile work environment. As a consequence, workers on the instructions of their trade union leadership, engaged in a form of industrial protest action; which more often than not, can escalate to that of strike action, which is usually a last resort.

While the focus of maintaining good faith may tend to be on the employer, it would be an error to assume that there is no implied duty of good faith on the part of employees towards their employer. Employees and the trade union also have a responsibility to disclose and share information with the employer, and to keep their end of the bargain. It is therefore expected that trade unions would act honestly, openly, and without hidden motives, behave ethically and raise issues in a fair and timely manner. Trade unions should not conjure the idea or in any way, be party to the undermining or sabotage of the agreement reached.

Government as the largest employer and employers within the corporate community are often accused of not fulfilling promises made, changing decisions and understandings without consultation, entering into an agreement with no intention of fulfilling the obligations, violating the basic principles of honesty in their dealings and of not disclosing and sharing information.

Most trade unions become incensed when management makes policies and implements them in a manner that excludes the involvement of workers and their trade union representative body. It is an insult when the employer engages in behaviour that shows no regard for the observance of good industrial relations practices and respect for the governing regulations. It is unjust and irresponsible for employers to believe that they can be dismissive and have the right to act as they please; because of their perceived right that they have the authority to do so.

Demonstration of acts of good faith will make a difference in workplace relations, communications and the work environment. It requires that there are honest dealings, acting fairly and justly, setting good examples, and exhibiting transparency and accountability. It is critical that there is good communication. There must never be the engagement of consultation just for convenience’s sake. Neither should there be the rushing of the process to facilitate the making of a decision, or for the purpose of satisfying a pre-determined decision. These are perfect examples of what bad faith is all about. 

(Dennis De Peiza is a labour and employee relations consultant.)