A bill by any other name

The significant parts of the new legisla-
tion are probably not the elaborate and complicated rules relating to bargaining and good faith, but the parts that elevate or enhance the union position or standing in the labour market.
Clearly life under the Employment Relations Act will be different. How different requires range of answers because there won’t be universal effect.
Some workplaces will scarcely notice difference – others stand to be quite dramatically affected by the Employment Relations Act.
Where workplaces are substantially unionised now, there won’t be huge impact. Where they aren’t there may well be.
Take for example the total right of access by union organisers to any workplace in which there are people who are – or could be – members of that union.
This could see organisations having to put up with competing unions traipsing through their worksites trying to sell their wares and we can only guess the impact that might have on production.
One thorny question is which union – or more importantly, how many unions – can potentially cover site? The Bill provides no answer to this question. There are no built-in controls.
The only restrictions on union registration are formalities. If union’s membership rules cover company’s employees, the union is entitled to have access to them.
The fact that contract is negotiated for one group of employees does not preclude another union trying to negotiate another one for another group of employees doing exactly the same work.
An obvious and quite valid question is why would an employer want multiple contracts covering workers doing the same job? The answer is simple. They wouldn’t, but they would still need to go through the process of bargaining in good faith and incurring associated costs.
In essence those companies with little or no union involvement now may suddenly find themselves needing to learn how to deal with unionised staff and how to forge positive relationships with one or more unions.
This will be particularly true for many “small” New Zealand employers.
One feature of the ECA was that it removed the national award system that existed pre-1990s but many enterprises were too small to be effectively and economically organised by union.
Because it is unlawful to strike for multi-employer collective employment contract under the Employment Contracts Act, many small employers simply ceased to be unionised.
Ironically, it will be these employers who are most likely to be directly affected under the new legislation. This is because the Employment Relations Act will make it lawful to take strike action in support of multi-employer agreement.
Once again there will be economies of scale for unions trying to organise employees in number of small establishments principally by initiating multi-employer negotiations and “killing many birds with one stone”.
By now you are probably thinking where are all these unions going to come from?
It would be folly to think of trade unionism in the traditional New Zealand model. Trade union numbers shrank dramatically in the nine years since the Employment Contracts Act was passed in 1991. Many have ceased to exist while some have expanded. Trade union membership in the same period has fallen from about 50 percent to about 20 percent of the total workforce. There have been many amalgamations, but few if any trade unions have been established in the last nine years.
However, the configuration of trade unions will change rapidly under the Bill and we will see many more unions.
The Employment Relations Act will allow small groups of workers who can satisfy few simple administrative criteria to form and register union.
We will see boutique unions set up by employees working for different employers, but within tight geographical or enterprise boundaries. prime area for this is the retail sector where unions may be formed covering employees in individual shopping centres or even discrete business districts.
The ability to bargain in multi-employer context makes this perfect sense for unions. Many smaller employers have had little contact with unions in recent times and their workers were virtually untouchable – simply because they were too hard to organise.
If it does nothing else, the new law will see more new unions in future and some will be very well resourced.
There are many employers in New Zealand who will be challenged by the new environment.

John Button is consultant with human resource consultancy Greene Hanson.

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