Power imbalance in employment relationship under the fair

power imbalance in employment relationship under the fair

power disparity does not capture the moral problem raised by inequality in uncertainty about its future, the National Labor Relations Act was limited to Did Small Business-Owning Households Fare During the Longest U.S. Economic Expan- . that time with respect to the future balance of power between unions and. When an employee feels strongly that there is a power imbalance with his or her A good way to start is by understanding the employee's feelings. The employee also starts looking at the relationship with the supervisor in manager -- no matter how reasonable and fair -- may be rejected out of hand. developed under the project heading Employment Relations Matters. In a precursor to the White Paper, New opportunities Fair chances for the future, the. Cabinet country to country reflecting the balance of power and distribution of.

power imbalance in employment relationship under the fair

Under the ERA, non-union individual employees must have a written employment agreement. Their individual employment agreement cannot be changed by their employer unilaterally. Non-union employees can choose not to engage a bargaining agent and choose not to be part of collective bargaining. This guarantees freedom from involvement in strikes and lockouts that go with collective bargaining.

All of these ERA individual rights will be lost if an ECA or Workchoices employer-run, non-union collective bargaining system is reintroduced. Under the ECA, employers could use lockouts and corporate power to coerce unrepresented individual employees into collective contracts without bargaining. Non-union employees were effectively made captives to employer-dictated collective contracts in Australia under Workchoices in It is also likely that ERA protections that exist around individual bargaining, such as the implied mutual duty of confidentiality and the obligation to act in good faith, would also go.

The majority of the workforce is no longer interested in old policy arguments about freedom of association and voluntary union legislation.

Interest has shifted to legislation that political parties promise will guarantee the non-union employee majority their rights and protections when they negotiate with their employer individually.

By initiating collective bargaining with non-union employees, employers will be able to demand sign-or-leave collective contracts under the threat of lockout. This will force non-union employees into collective processes to join and bargain in association with other employees against their wishes.

Australia's Workchoices system permits employers to run collective bargaining processes that unions are outlawed from operating and for which the unions can incur massive fines if they do operate. Under Workchoices, a non-union employee can be coerced into attending employer-run meetings and employer-run majority vote balloting of those employees who the employer has compelled to participate in collective bargaining.

Unlike the Workchoices' protections from compulsion to pay union bargaining agents, there does not appear to be any protection from coercion to pay a fee to a non-union bargaining agent selected and approved by the employer.

But in either case, if a deadlock ensued, then the disputants had to submit to an external settlement of their quarrels. Thus, the scheme theoretically endorsed regulation of industrial conditions by a commercial free-for-all limited by the law of private contract and by the newly evolved legal and economic concepts associated with collective action, and finally, by the forceful imposition of a solution agreed to by neither party to the dispute.

The second oddity of the conciliation and arbitration system was the enforcement paradox identified and explored by Creighton Under conciliation and arbitration strike action was for all practical purposes unlawful, with the potential to attract a wide range of civil penalties or statutory sanctions, yet industrial action continued unabated.

Potential sanctions were rarely utilised in practice, leading to a dichotomy between the availability of sanctions and the willingness of participants in the industrial arena to use them. Consequently, the role of strikes within conciliation and arbitration was incongruous. Strikes were unlawful but rampant. This led Creighton Further, increasingly globalisation and economic integration demanded that the insular approach of successive Australian governments to labour relations be abandoned in favour of increased engagement with the international community in economic matters Creighton The perceived need for change within the Australian labour relations system led to the passage of the Industrial Relations Reform Act Cth.

Conciliation and arbitration was modified substantially to include free collective bargaining with an express right to take industrial action see McCarry Through these amending Acts, bargaining was altered from an incidental element of conciliation and arbitration, existing in the form of over-award bargaining, to a central plank of the new voluntary collective bargaining model, with industrial action assuming a central role as a potential weapon available to both employers and employees in collective bargaining.

The role of industrial action within this collective bargaining model was very specific. Employers, employees or employee organisations could engage in industrial action in support of their claims in relation to a collective agreement applicable at a single enterprise or business, or in support of their claims in relation to an individual Australian Workplace Agreement AWA. Unprotected industrial action left participants open to potential injunctive, common law or other liability, depending on the willingness of the target employer to pursue a common law claim.

Such orders were discretionary, enabling the AIRC to consider all relevant industrial factors before making a direction under the section. The process outlined had two important features. First, the protected action model facilitated industrial action by parties to collective bargaining in a relatively straightforward, accessible manner. The process was not perfect. It had attracted ILO criticism over excessive restrictions on the form, content and voluntariness of bargaining ILO, and extensive litigation over aspects of the operation of the provisions in practice.

The second feature of note is the substantial inbuilt flexibility which enabled the AIRC to supervise all forms of industrial action falling within the federal system. The combination of accessible protected action and inbuilt flexibility for dealing with unprotected action were factors that helped to create a relatively stable workplace relations system.

One indicator of this stability is Australian Bureau of Statistics ABS data showing the number of working days lost to industrial disputes in Australia. From an historical high reflected in the figures when there were working days lost per employees, the number has steadily declined whereby there were days lost in and only 32 days lost in ABS Although the number of working days lost per employees increased slightly in and to 53 and In terms of potential economic disruption from industrial disputation, Australian employers had rarely fared better.

Despite the reduction in working days lost to industrial disputation, the federal coalition government has consistently pursued a legislative agenda designed to restrict protected action. However, it was not until the federal coalition government gained control of the Senate in Julyafter re-election in Octoberthat it was able to pass its amendments through Commonwealth Parliament. The first attack on industrial action came with the passage of the Building and Construction Industry Improvement Act Cth which outlawed all unprotected industrial action in the building and construction industry within the limits of Commonwealth jurisdictional competence, imposing hefty fines on individuals or organisations acting in breach of the ban.

This legislation was followed by the Work Choices Act.

Shifting balance of power in employment relations

The Work Choices Act, while stopping only just short of an outright ban on unprotected industrial action, has substantially restricted the availability of protected action, removed the discretion of the AIRC in decision making and mandated AIRC orders against unprotected action.

The overall effect of these changes will be twofold. First, the bargaining power of employers as against employees or employee groups will be increased, and second, the protection of the public against any adverse consequences from industrial action will be elevated above the interests of the bargaining parties. The paper will now discuss the changes introduced by the Work Choices Act, focusing on how the changes to the law have shifted the balance of power in collective bargaining in favour of employers and how the changes have distorted the concept of the public interest.

power imbalance in employment relationship under the fair

Part 9 consolidates and amends pre-existing WRA provisions covering protected action, AIRC orders and strike pay, providing comprehensive coverage of all industrial action occurring within the federal system. This object had no pre-existing WRA equivalent and provides insight into the focus of the Work Choices Act amendments.

Initially, the object recognises a right to take industrial action for the purposes of collective bargaining, enshrining recognition of the right to take industrial action as a component of collective bargaining under the WRA.

The Economic and Labour Relations Review

A Right to Take Industrial Action? For the majority of employees, a job is their main asset, leaving them vulnerable in collective bargaining, with little leverage to use as a bargaining tool as against an employer. However, while the legislative objects now formally recognise the role of the right to take industrial action within collective bargaining, the industrial action provisions within the WRA have been considerably restricted.

Legislation recognising the right to take industrial action, while suppressing the right in practice, is not new. The phenomenon has been noted in Canada by Weiler Before the passage of the Work Choices Act Australian law had already been the subject of international criticism for imposing excessive obstacles to the free exercise of the right to take industrial action ILO As all unprotected industrial action in Australia may attract common law and statutory liabilities, the scope of the protected action regime denotes the scope of the right to take industrial action in the federal system.

The Work Choices Act has impacted the protected action regime by reducing the scope of conduct falling under the protection, burdened the process for engaging in protected action with a compulsory secret ballot and increased the circumstances in which protected action may be brought to an end. Access to protected action Under the WRA, access to the protected action regime is only available in the context of negotiations for a workplace agreement.

Pre-existing exclusions from protected action have been retained by the Work Choices Act, whereby protected action may not occur during the suspension of a bargaining period sif it involves persons who are not also protected persons in that particular industrial action sif parties have not complied with AIRC orders or directions sif union action has not been duly authorised by the relevant committee of management s or where the employer parties have not genuinely tried to reach agreement ss1 a.

Further, three new exclusions from protected action have been included: The High Court held that protected industrial action could not be taken in support of uncertifiable claims, which were those claims which did not pertain to the relationship between an employer and an employee see Johns While the decision in Electrolux excluded all such claims from protected action, the changes introduced by the Work Choices Act evince an intention on the part of the federal coalition government to closely control the content of certified agreements, and consequently, claims that may be supported by protected action.

This change will enable the Minister, without direct parliamentary scrutiny, to interfere in the content of agreements made by parties in a freely negotiated bargain. This is demonstrated in the likely inclusion of unfair dismissal as prohibited content.

Agreement over termination of employment is a matter directly at the heart of the employment relationship, yet parties will not be able to seek agreement that termination of employment be carried out in a fair manner because of the federal coalition government opposition to unfair dismissal protections.

The second new exclusion from protected action is pattern bargaining. Pattern bargaining involves the initiation of simultaneous bargaining periods at different businesses, enabling co-ordinated protected action to occur in pursuit of similar terms and conditions in workplace agreements covering workers doing similar types of work. Pattern bargaining enables trade unions to seek comparative wage justice for their members across different businesses, but has been attacked by the federal coalition government on the basis that each individual workplace should negotiate agreements on a site by site basis, reflecting the needs of that workplace.

As pattern bargaining is essentially a course of otherwise acceptable conduct rendered illegitimate if engaged in across more than one set of negotiations, the practice is hard to define. A person seeking two or more agreements with common wages and conditions where conduct extends beyond a single business will be engaged in pattern bargaining, and therefore excluded from protected action, unless it can be shown that they are seeking to include national standards set by the AIRC or are genuinely trying to reach agreement at a single business.

The factors that suggest that a negotiating party is genuinely trying to reach agreement at a single business are: The provisions are interventionist and discount the benefits of comparative wage justice for employees and benchmarking for employers. Further, they will be very difficult to apply in practice, particularly in sectors where similar sets of employment conditions are usual across the sector for example higher education.

The new provisions clearly state that all industrial action that occurs before the expiration of the relevant instrument will be both unprotected and unlawful. This may result in more protracted periods of collective bargaining and industrial disputation. The technical process that must be undertaken before parties can engage in protected action operates to delay the exercise of the right to take industrial action, imposing an administrative burden on access to the right.

Further, under the WRA, a failure to strictly adhere to the technical process will render subsequent action unprotected.

Shifting balance of power in employment relations | Otago Daily Times Online News

Therefore, it is important that any obstacles to protected action be industrially necessary and that the process be as user friendly and accessible as possible. Prior to the passage of the Work Choices Act, parties who wanted to engage in protected action had to initiate a bargaining period, make a genuine effort to reach agreement with the other party and then provide three days strike notice, setting out the nature of the intended action.

This applied unless the action was in response to protected action taken by the other party. This process remains, however employee negotiators or employee organisations now have the additional requirement, if they initiate protected action, of a compulsory secret ballot of potential strike participants.

The secret ballot provisions are set out in Division 4 of Part 9. The negotiating party that initiated the bargaining period may apply to the AIRC for a ballot order. Once a ballot order is made, the ballot must be conducted by either the Australian Electoral Commission or an independent ballot officer approved by the AIRC s The persons that are eligible to vote will depend on whether the applicant for the ballot was an employee organisation or an employee negotiating party.

For union collective agreements, only members of the employee organisation, employed by the relevant employer on the day the ballot order is made, and who may be subject to the proposed agreement, are eligible to vote and engage in protected action s 1 a.

For employee collective agreements, the employee negotiating party must first demonstrate to the AIRC that they have the support of a prescribed number of relevant employees before the AIRC will make a ballot order s 4.

The rationale for the introduction of compulsory secret ballots is encapsulated within the object of Division 4: These assumptions ignore the difficulties of undertaking successful industrial action without the support of those directly affected.

Accordingly, the motivation behind the changes as they pertain to union protected action appears to be political, rather than industrial. Despite this, the application of the ballot process in practice may not prove to be an overwhelming obstacle for unions to undertake protected action. Employee organisations generally have sufficient organisational and financial strength to bear administrative and cost burdens.