All workers should be concerned about proposed Employment Relations Act amendments

Tuesday May 28th, 2013

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 capture.

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 restrictions.

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 burdensome requirements".

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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