Monday, February 1, 2010

Ending the union "monopoly" on bargaining-what monopoly?

In 2008 National's workplace relations policy featured only five substantive items one of which was its policy of ending the "union monopoly" on collective bargaining, newly rephrased as "restoring" rights to bargain without belonging to a union. Non-union bargaining was of course a feature of the ECA - or more accurately non-union non-bargaining. Negotiating a non-union "collective" employment contract was primarily a tactic used by employers as a method of accessing the power to lockout small groups of unorganised employees to force a reduction in wages and conditions. However at,rather than speculate on what National might have in mind for the future, I want to address a slightly different question - is there anything in the current law that prevents non-union employees bargaining?

Let us assume that a group of employees wish to bargain and for the moment that the employer is willing to talk to them. To start with most employers already use "collective" terms of employment (or more accurately standard terms of employment/contract) which form the basis of their employment agreements. Employment documentation typically consists of such terms supplemented by a letter of appointment tailoring the employment to the individual employee. Functionally this starts to look pretty much like the arrangement that exists with a collective agreement - a basic agreement plus some individual terms.

There is of course no reason whatsoever that an employer cannot agree to negotiate the contents of its standard terms with its employees, and even agree that those terms be available and offered to all existing and new employees. Behold - the employees have now bargained without belonging to a union. Moreover as they are negotiating individual employment agreements for themselves the general duty of good faith would seem to apply to the negotiations.

So what's the downside?
(a) the specific bargaining in good faith provisions in Part V won't apply,
(b) they can't strike (or be locked out)- but were such a group even going to have the capacity to strike anyway?

Of course the employer may refuse to negotiate/bargain (unless the good faith provisions can be invoked to require this)and the employer may not agree to what is requested but that is not unusual in normal collective bargaining.

The point is that if employees want to negotiate/bargain their standard terms of employment there is no legal impediment to doing so and it is difficult to see what any "right" to bargain might achieve - except of course for the employer who would again be free to lockout small groups of employees - but I'm sure National don't intend that.

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