Yet again, the state wants to impose more time-consuming and
expensive legal processes upon both employers and unions.
The recently introduced Employment Relations Amendment Bill
makes inroads into collective bargaining reminiscent of the
pre-1987 arbitration system. There are two further areas where the
bill will open up union/employer relations to third party
Firstly, the Employment Relations Authority moves to the centre
of collective bargaining, getting further powers to interfere with
free collective bargaining and industrial action.
Secondly, the 63 amendments to the Employment Relations Act 2000
propose extensive alterations to current law.
This appears to be an unnecessarily elaborate make-work scheme
for employment lawyers to open up and increase their involvement
and influence in restricting collective bargaining.
The most significant changes for workers in unions involve partial
pay deductions for partial strikes and the requirement for advanced
written notice of the intention to strike or lockout and withdrawal
of such notices in writing.
The partial pay deductions for partial strikes change is most
likely to provide work for employment lawyers, some of whom were at
the forefront of the call for these changes.
The process requires expensive legal proceedings in the Employment
Relations Authority if unions are to challenge any deductions made
by employers who choose to exercise new rights to deduct from
wages. There are no rights for individual union members to recover
partial pay deductions.
The right to deduct will also give employers a tactical weapon
in collective bargaining. It is intended to have a chilling effect
on union members' willingness to take industrial action.
Because union membership and collective bargaining is now
concentrated primarily in the public sector cases are likely to
involve well- funded public sector employers trying out the new
The most significant change being proposed is the imposition of
a requirement for unions to provide written notice of intention to
strike and further written notice if they decide to withdraw the
notice. This allows a period of time for employers to influence the
work environment to avert the impact of all industrial action and
to start making pay deductions. The reason for the change does not
appear to relate to public interest requirements such as the strike
notice requirements in essential services such as hospitals.
Rather, its purpose appears to be to provide employers with an
added burden to place on unions during collective bargaining.
At first glance, the Bill appears to be of no significance to
the majority of workers who are not in unions and covered by
collective agreements. ( In 2011 only 13 percent of the total
employed labour force was covered by such agreements.)
But the amendments include repeal of the 30-day rule for new
workers whose work is covered by a collective agreement to come
under the collective when they start. It will enable employers to
offer individual terms and conditions that are less than those in
the collective agreement.
New workers will have to accept an individual employment
agreement to get the job. This removes two important benefits of
the law. The new workers lose the opportunity to start on the same
rates of pay and conditions of employment as staff on the
collective. Also, this will allow employers to engage new workers
on a three month trial period under an individual employment
agreement instead of starting on collective agreements that
don't contain such trial clauses. Even if the employee later
chooses to join the union and become covered by the collective
agreement it will be too late, they will remain trapped on the
three month trial period.
The changes appear driven by ideology and focused on further
reducing union involvement in the workplace. Explanatory notes to
the Bill claim it "... reduces unnecessary regulation."
and it will be "...removing or amending unnecessary and
After wading through the 63 separate amendments over 40 pages of
the bill, this statement is simply untrue. It is a regulating
amendment bill. The underlying purpose is anti-collective. It aims
to introduce further barriers to make collective bargaining an
unattractive and litigious option for workers and employers. It
will give employers further means to exclude unions and dominate
negotiations at the workplace.
This piece by Phillip appeared yesterday in the Otago Daily
Times opinion page.
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Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
This WHS decision clarified the interpretation of s 19 of the Work Health and Safety Act 2011 (NSW).
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