Interim Report
ACTU Executive Delegation to
US, Canada, UK and New
Zealand
1
Composition of delegation
Affiliates
• Joe De Bruyn
• Doug Cameron
• Susan Hopgood
• Jeff Lawrence
• Bill Shorten
• David Carey
• John Sutton
• Linda White
• Mark Lennon
ACTU
• Greg Combet
• Cath Bowtell
2
Context: Defect in Australian laws
1993: Shift in emphasis between bargaining and arbitration,
weak “good faith” provisions, and limited industrial
action.
1996: Reduced role of arbitration, reduced access to industrial
action, no good faith provisions increased role for
bargaining;
2006: All but abolished arbitration, all but abolished lawful
industrial action.
No institutional means to encourage employer to engage in
bargaining and reach agreement.
3
Importance of Collective
Bargaining
• Means to address power imbalance between workers and
employers including improving wages and conditions
• Australia’s laws breach fundamental ,internationally
recognised standards;
• Freedom of Association and Right to Bargain Collectively sit
alongside abolition of child labour, elimination of forced
labour and elimination of discrimination as the four core
labour standards;
• Political heritage
• North America Democratic values: freedom to associate and
act in concert to protect interests in the workplace
complements democratic rights as citizen in political
economy.
4
• EU: Social partnership
Economic/labour market
challenges
• Structural changes to economy;
• Sharper competition, trade exposure;
• Decline in manufacturing, growth of services
sector
• Reliance on resources sector;
• Ageing population, skills shortages, pressure on
hours, pressure on families; feminisation of labour
force;
• Smaller enterprises;
• Growth of non-standard employment.
5
Terms of reference
• Examine systems in the four countries;
Should industrial legislation policy include an
enforceable right to collective bargaining?
• If yes, model or models that would be suitable in
the Australian context, taking into account the
need to:
– promote effective and democratic unions;
– assist unions to build their capacity within the workplace
• Note that other issues related to IR policy
are for Congress
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Programme
•
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•
•
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Toronto 24, 25 April
Ottawa 25, 26 April
Washington 27, 28 April
London 2, 3 & 5 May
Brussels 4 May
Wellington 21 June
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People seen
Unions/peak bodies:
OFL, CLC, AFLCIO, CTW, TUC, ETUC,
ICFTU, NZCTU
Union lawyers:
Union organisers:
Academics:
Internal and external
Labour supporters:
Bureaucrats:
Tribunals:
Politicians:
Yates, Fudge, Vosko (Canada)
Compa (US)Ewing(UK)
(Ontario Health Coalition, ARAW)
(DTI UK, Dept. Labour NZ)
(Federal Mediation and
Conciliation Service, OLRB, former
NLRB (US), CAC, ACAS)
(NDP Canada, Labour NZ)
Research: Commissioned AIER/Monash plus desk research
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Report will address….
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1. The context for bargaining
• Looked at bargaining in 5 settings;
• The economic and labour market issues in each US, Canada,
UK, NZ, and EU;
• Trends in union membership, coverage of, and quality of
collective bargaining;
• The constitutional, legislative and political background to the
collective bargaining laws;
• The foundations of the bargaining systems; to whom the
laws apply, how they relate to other labour legislation; and
• An overview of the institutional support for bargaining in
each jurisdiction.
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2. The bargaining systems
The role of bargaining and of unions:
• in each system including the risks and opportunities
associated with linking collective bargaining with union
recognition, and with union membership (winner take all)
Initiating bargaining:
• who can initiate bargaining?
• the strengths and weaknesses of a representation threshold,
how is representativeness tested?
• the strengths and weaknesses of a ballot, card checks and
membership checks for determining whether a union is
representative.
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Three models
North American: Recognition
– Majority support confers exclusive right to
bargain, and triggers good faith obligation
• UK: hybrid
– Recognition not essential, but majority support
can trigger compulsory bargaining procedure,
no good faith obligation
• NZ:good faith
– Good faith bargaining towards collective
agreement with registered unions on behalf of
its members
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Canada vs US
• Wherever employers can interfere in employee
free choice they do
Differences between laws that had impact
•
card check/ no ballot and clandestine
organising, ballots- time between calling ballot
and holding
– Instances of unfair labour practices-dismissal and
victimisation pre recognition, one on one meetings, (all pre
recognition) and surface bargaining, (post recognition)
– Remedies and expedited hearings and interim
reinstatement,
– Access to first contract arbitration
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North America
Exclusive recognition has three related concepts;
– Majority support precursor for collective bargaining,
must bargain through union to exclusion of any other
person or system (i.e. no individual bargaining)
– Recognition as precursor to members right to
representation (if fewer than 50% no right of single
members to representation)
– Recognition as means to determine union rights vis avis
each other (no demarcations)
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UK
Majority support not needed for bargaining, but can trigger
bargaining;
• Design flaws;
• small business exemption,
• previous recognition of “tame cat” union is bar to
recognition procedure,
• capacity for employer to challenge bargaining unit (so far
not abused);
• ballots even in face of majority support
– Single members have right to representation (some
limitations in statutory rights)
– Robust unfair labour practice and access and
communications during ballot, but not during bargaining
– No good faith obligation
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NZ
• Good faith obligation arises on making a claim by
registered union;
• good faith includes both mechanics of bargaining
and respect for representatives; (no
communications)
• Only unions can make collective agreements;
• Agreements do not cover non members- issue of
equal pay and passing on
• Multi employer bargaining available following
ballot of members in each workplace ;
• Arbitration in face of serious and sustained breach
of good faith, but not used -hurdle v high
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Collective bargaining in practice
• Common claims:
• No limits on common claims across more than
one employer
• Content of agreements: Minimum standards
underpin bargaining;
• Compulsory membership can be negotiated in
USA and Canada (not R to W states), bargaining
fees can be negotiated in NZ, and can be obtained
by law in Canada (Rand formula)
• Industrial action in support of claim:
• Formalities: duration, registration
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System design issues
Administration of the system:
– Composition, tenure, experience and procedural
requirements of the tribunal have a significant impact on
the effectiveness of the system; and
– Level of detail in the laws needs to be sufficient to guard
against “judicial activism” but not so complex as to
create opportunities for technical defects.
Guiding the judiciary:
• Risks and Opportunities associated with supporting
legislation with a Bill or Charter of Workers rights, or
social, economic and political rights.
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Building support
• Alliances and community building;
• Reinforcement through all areas of
employment regulation.
19
A model for Australia
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Principles
• A decent, relevant and secure safety net of pay and
employment conditions that is able to be adjusted to take
account of community standards;
• A system of collective bargaining, over and above the safety
net which is built on the assumption that parties will bargain
in good faith and uphold democratic values;
• No statutory individual contracts;
• An independent tribunal to maintain and improve the safety
net, to oversee the bargaining system and to guarantee fair
treatment in the workplace;
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Principles
•
Rights of union membership and representation. Law
should retain registration and eligibility rules, and
legislation should uphold the role of unions in a free
democratic society;
•
Protection from arbitrary or capricious decision-making,
and avenues for workers to have their day to day
grievances heard and determined;
•
Support for delegates in the workplace;
•
That rights and entitlements apply to all workers without
discrimination,
and
that
discourages
artificial
arrangements to exclude workers from the protections of
the system;
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The bargaining framework
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Representation
• Workers have rights to bargain (includes right to
take action) and to be represented;
• Union members have rights to representation in
collective bargaining, and a general right to
representation (grievances, discipline,
enforcement etc);
• Access to information in the workplace;
• Unions retain registration and coverage.
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Coverage of agreements
• Collective agreements generally cover all
employees in a business or related businesses;
• System must guard against artificial expansion or
fragmentation of workforce to be covered by
bargaining process and agreement;
• Unions can seek to bargain common outcomes
within their area of coverage.
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Coverage of agreements
• Multi-employer agreements should be available by
consent, or if certain criteria,
– The right of the parties to determine the level at which
they bargain;
- The need of low paid workers where a lack of bargaining
power at the enterprise level undermines their ability to
effectively bargain collectively;
- The community of interest of the employees;
- The community of interest of the employers;
- International Labor Organization principles and
conventions; and/or
- Any potential ,demonstrable, long-term negative impact
on the viability of an enterprise.
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• Industry Consultative Councils for industry level
consultation/negotiations eg OHS, skills and
workforce development, R and D.
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Parties
• Unions or workers should have a right to initiate a
claim to bargain (as do employers);
• There must be parties to an negotiation and an
agreement- no employer green fields agreements;
• The parties to the agreement should be those
parties who negotiate the agreement. Where a
union has a member, it should be entitled to
represent the member and be party to the
agreement; (cont.)
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Parties…
• Disagreements about who is a party to the
negotiations (including a single bargaining unit)
on which workers would be covered by the
agreement should be resolved by the AIRC,
having regard to history at workplace, community
of interests and need to guard against artificial
fragmentation of workforce;
• There can be collective agreements without a
union, the two streams of union and non-union
collective agreements should be simplified and
streamlined.
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Scheme of good faith bargaining
• The Act should encourage good faith bargaining;
• Voluntary bargaining, including industrial action, should be
available without recourse to the Commission;
• Where a party is not bargaining in good faith, the
Commission should be able to make good faith orders;
• Where a party opposes the making of a collective
agreement, the views of the majority of workers to be
covered by the agreement shall determine the issue;
• Where bargaining has failed, and there is no reasonable
prospect of reaching an agreement, or where good faith
orders have been breached, the Commission should be able
to arbitrate as a last resort to resolve the dispute.
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Industrial action
• Legally protected industrial action should be
available during bargaining, without the need for
a secret ballot;
• As a matter of good union practice, unions should
not take action unless it has been democratically
endorsed;
• Protected industrial action should not be
undermined by use of external replacement
labour;
• The law should also protect meetings to prepare
for bargaining, political protest, fair provisions re
OHS, and allow workers to protest breach of
statutory duties.
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Good faith bargaining
• In determining whether to make a good faith
order the Commission should consider the parties’
conduct re negotiations including:
– whether each party has agreed to meet at reasonable
times and attended the agreed meetings;
– whether a party has refused or failed to negotiate with
one or more of the parties;
– whether a party has refused or failed to negotiate with a
union which is entitled to represent an employee(s);
– whether each party has complied with agreed negotiating
procedures;
– whether a party has capriciously added or withdrawn
items for negotiation
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Good faith bargaining
– whether each party has provided relevant information
and documents;
– whether a party has engaged in conduct designed to
undermine the bargaining right of another party;
– the views of the bargaining parties;
– where it is a matter contested between the bargaining
parties, the level of support amongst employees for the
collective bargaining process.
• Good faith does not require a bargaining party to agree on
any matter for inclusion in an agreement or require a party
to enter into, or prevent a party from entering into, an
agreement.
• Pursuit of common claims and outcomes is not a breach of
good faith
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Good faith orders
Where there is a failure to bargain in good
faith the Commission should have
discretion, subject to legislative guidance,
to grant orders to do, or stop doing certain
things.
Commission should to be able to make
remedial orders to restore status quo to
mitigate breach of good faith.
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Good faith orders
The orders might relate to:
• Orderly
bargaining
(meetings
schedules,
exchange of information and proposals, adhering
to undertakings and requiring parties to attend
conciliation proceedings;time limits etc);
• Respect for representatives (prohibiting action
that undermining the collective bargaining
process; or the the representative role of another
party; or that disadvantages workers or
discriminates on union membership).
35
Types of orders
– Orders to meet, exchange documents, respond to
proposals, adhere to commitments;
– Refrain from actions undermining collective bargaining,
or a negotiating party, or discriminating against a party
for collectively bargaining or being a union member or
being represented; amongst employees for the collective
bargaining process
– Ascertain level of workplace support , (in accordance
with procedures outlined under “majority support”);
36
Types of orders (cont.)
– the taking of, suspension, or deferral of industrial action
(having regard to the right of parties to engage in
protected industrial action and that the taking of such
action is not of itself contrary to bargaining in good
faith); and/or;
– preservation of the status quo.
37
Majority support
• Where orders sought, and where a party contests the level
of workplace support for collective bargaining, the
Commission should be required to make good faith orders
designed to promote the making of an agreement where the
Commission is satisfied there is majority workplace support.
• Commission has discretion as to how is tests majority
support.
– E.g. Petitions, resolutions passed at workplace meetings,
evidence from employees or their representatives, levels of
union membership, results of employee ballot.
• Commission can order ballot,only if the Commission is not
satisfied by any of the foregoing measures, and only where
the Commission has contradictory evidence before it.
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Rules relating to Agreements
• The matters to be included in an agreement should be for
the parties to agree subject to agreements meeting a
genuine “no disadvantage test”;
• Agreement should be by valid majority;
• Parties should be bound by agreements and not able to opt
out. The system should guard against workforce or
corporate restructuring to avoid agreements;
• Agreements should continue for their term, and beyond
until terminated by the parties or replaced by another
agreement.
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Last Resort Arbitration
• Where bargaining fails and there is no real prospect of
reaching agreement arbitration should be available as a last
resort.
• Workplace Determination would generally only occur:
– where there is a risk to the safety, health or welfare of
people affected by the bargaining dispute; or
– where there is a risk of significant damage to the
economy or an important part of it; or
– it is otherwise in the public interest for the Commission
to make a Workplace Determination.
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Last resort arbitration
• A breach of good faith bargaining orders
could trigger the commencement of an
arbitration of a bargaining dispute.
• The no disadvantage test would apply to
last resort arbitration.
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Supporting Collective Bargaining
The system should recognize the role of delegates in
bargaining.
• Authorized delegates should have rights of access to and
communication with workers, inspection of the workplace
and documents, and reasonable time off associated with
their representative roles.
• The Commission should be able to make orders to ensure
delegates can perform their representative roles.
• Commission should be able to issue interim remedial orders
where there is prima facie evidence that a delegate has
been subject to unfair interference or disadvantaged for
performing their role
42