According to the Shadow Minister for Workplace Relations, Brendan O’Connor, (collective) bargaining power has tilted too much in favour of employers. This would rankle many an employer who, amongst other things, would feel the intense irony of Labor asserting that its workplace law, The Fair Work Act (The Act) carries employer bias.
A key tenet of Shadow Minister O’Connor’s National Press Club speech is that employers are “gaming” the Act. He relies on the example of an employer that sought to outsource work and have the services performed by a third party. Hardly remarkable. So what might employers say about this? In what ways do unions “game” the Act? Here’s a short list. Some involve taking advantage of existing laws and are therefore legal. Some are not.
Unlawful picketing – the relatively slow, expensive and difficult legal process to remove an obstructive picket provides a union with massive leverage in bargaining or a dispute (such as was the case in the example cited by Shadow Minister O’Connor). The ends justifies the (illegal) means it seems.
Unlawful industrial action – often taken for short periods but with maximum impact knowing the employer is unlikely to seek meaningful redress because the cost, effort and ‘pay-back’ is not worth it.
“Subterranean” industrial action – mass sickies or “go-slows” which are often hard to prove as industrial action and again very potent.
Threats of industrial action – made in bargaining but often not followed through. Sure, it’s better to not have the industrial action, but the employer needs to assume it is happening and in turn that it won’t be able to meet supply needs. Try running an airline on this basis.
Minority interests rule – in a system aimed at ‘the collective’, it’s nonetheless very often the interests of a powerful minority in the workplace that dictate bargaining outcomes. True, the majority are often passive and hence you might say ‘in agreement’. But the reality is very different.
Agreements made without union involvement are undermined – agreements are technically made with employees. Many have union involvement. Some do not. As you can imagine, unions will often take every point and make every attempt to delay the making of a ‘non-union’ agreement whatever the consequences for the employees who have made the deal.
Taking industrial action without bargaining in good faith – because the law doesn’t require this.
Preventing legitimate change – using legal processes to stymie change, because the union and typically a minority don’t like it. Delay costs an employer money and/or progress and who knows what can be extracted from more time. Sometimes the change is for the better health and safety of employees and delay is potentially at their expense.
Bad employee behaviour is supported – not always, but all too often, where the behaviour is that of a loyal union delegate whose absence from the site means the loss of a vulnerable union foot soldier.
Am I generalising? Yes. Would there be plenty of employers and peers of mine who agree with the above assessment? Yes.
See our related blog Proposal to outlaw “unrepresentative” enterprise agreements – when will an enterprise agreement be undone? for additional commentary on the Shadow Minister’s speech.
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