14/11/2012Bargaining Strategy, Bargaining, Negotiation

Threats can lead to counter-threats in an escalating spiral that can unhinge a negotiation and even destroy a relationship.

Threats are pressure and pressure often accomplishes just the opposite of what it is intended to do. Instead of making a decision to accept an offer put to it by the other side easier, it often makes it more difficult. In response to outside pressure, a union, a committee, a company, or a government may close ranks in response to a threat made against it.

Industrial Action

One form of threat is that of industrial action in pursuit of claims, most usually by employees and their unions, but occasionally by employers. Under the Fair Work Act 2009, industrial action is defined to include the following actions:

  • Employees performing work in a manner different to how it is normally performed
  • Employees adopting a practice that restricts, limits or delays the performance of work
  • A ban, limitation or restriction by employees on performing or accepting work
  • A failure or refusal by employees to attend for work or perform any work
  • The lockout of employees from their employment by their employer

Dealing with Threats

  1. Understand the motive
    Is this early in the negotiations, perhaps designed to stamp authority?
    Is this later when they have run out of options?
    What motivated the threat - a specific event, response to your offer?
    How frequently do they make threats – is this the first one, or do they tend to make frequent threats?
  2. Weigh up the consequences
    If they carried out this threat, what would it cost you?
    Can you afford to ignore the threat – does it lack credibility, or did they just make a mistake in the heat of discussion?
  3. Confront the threat
    Call it what it is - “Help me understand why you are making this threat?”
    An alternative response can be to step ‘over’ the threat, but indicate it won’t do anything to change your position. For example, “Whether you do that is your decision to take, but our response to your claim is based on [legitimate considerations]”.
  4. Physical Harm
    Threats can even be, and in our experience thankfully very rarely, in the nature of direct personal harm. In that case, the other party has totally lost legitimacy and possibly self-control, in which case we recommend withdrawal from the situation until the threat has been withdrawn or is no longer imminent.

For advice on how we can assist your business with negotiating enterprise agreements, including developing or responding to tactics, call us on 02 8907 3838.

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