A point that was overshadowed in the poli-
ticking surrounding the Act is that employers are still very much masters of their own destiny.
Organisations cannot be forced into agreements unilaterally as they could in the days before the Employment Contracts Act.
For many, the strategy will be to maintain the status quo and keep changes to minimum – in other words not creating self-fulfilling prophecy of radical change accompanied by doom and gloom.
Yes, there are some significant differences in the new environment. Many companies had individual agreement structures by default – simply by refusing to engage on collective basis. The new law won’t allow people to avoid discussing collective agreements, but neither does it prohibit pursuing individual agreements.
If employees expect change then employers are entitled to ask, “Change to what?” and “What benefits do staff expect to receive?” In this new environment, you can add new performance measure – managing expectations.
Managers must maintain strong leadership roles and should define and control contract initiatives so they are not seen as defensive or reactive. There will be an impact on morale and workplace relations also and holistic approach needs to be applied to an organisation’s overall HR strategy.
For example there are four obvious, if somewhat simplistic, strategies – each with associated costs and benefits. For instance promoting one collective agreement and one union can provide increased stability and consistency. relationship develops that can raise understanding and help facilitate change – on the other hand it can legitimise the role of an external third party in the workplace relationship.
Actively avoiding collective process might reinforce direct relations with staff but may carry the costs of establishing and maintaining suitable environment.
Encouraging competition between unions and collective agreements might achieve greater concessions in bargaining but it can be disruptive, polarise staff and see greater levels of demarcation.
Adopting healthy disinterest in collective structures without actively avoiding them can and does work. Under the ECA many entered into collective arrangements knowing they could offer alternatives whenever it suited them. The same tactic now could be seen as lack of leadership.
The role of unions and collective agreements is only part of the equation in the choice of employment relations strategies. Other considerations include legal and political factors, organisational performance and staff perceptions.
For instance reinstatement is once again primary remedy for personal grievances claims of unjustified dismissal but the approach this time round will need to be quite different.
The last time that was legislative feature was between 1987 and 1991 and the right to take grievance was limited to union members or those people covered by registered award or agreement. Ironically, the unions’ effective monopoly to act on behalf of employees meant they often moderated claims for reinstatement – there were two main reasons.
Often the person dismissed did not sit comfortably in the organisation – with management or colleagues and the union was not interested in pursuing reinstatement if their members did not support it.
The second reason was the union’s relationship with the employer. There is always need to demonstrate give and take and degree of understanding of each other’s concerns and motivations.
The last thing an employer wants to do is reinstate someone they’ve dismissed – aside from the direct challenge to their right to manage, they also have to deal with the problem that led to the dismissal in the first place.
The ECA made lawyers common place in disputes of this nature and they understand these pressures on employers and will claim reinstatement to increase the price of settlements. Lawyers do not have an ongoing relationship to maintain with the employer so there is no quid pro quo.
The flow-on effect is that unions will have less scope than ever to moderate as they will want to demonstrate their relevance and effectiveness to members. In this situation both the company and union have lot to lose if reinstatement is achieved. This will have very large impact on employment relations strategies and practices.
Many companies will be able to, and no doubt will, ?box on’ relatively unchanged for some time. But the reality is the current laissez faire employment relations environment has changed and will not return in the foreseeable future. The result is that any HR initiatives need to be more coordinated.
Conrad Siers is consultant with human resources consultancy, Greene Hanson.
