Thursday, November 27, 2008

New laws change the way the workplace works

Forward with Fairness has finally arrived.  At 613 pages it will take some time to digest the implications.  First impressions reveal something new and unexpected.

The legislation introduces a concept into workplace relations that will probably change the nature of work regulation in fundamental ways.

Until now, industrial relations law governed relationships between employers and employees.  This is retained.  The new bit is that the law will also cover relationships between employers and unions.  This is very different and unanticipated.

Until now, unions derived their legislative authority through their representation of employees.  The essence of employment law is the relationship between employers and employees.  The union role, when authorised, was to act for, and on behalf of, employees.  Employers dealt with unions because they represented employees.

But with 85 per cent of private sector employees not being union members, union authority in most workplaces has been marginal and even questionable.  This has long been a union complaint and they have sought a renewed role and authority.

Forward with Fairness seems to creatively deliver this new role.  Under the legislation unions have statute authority independent from that of any union membership they may have in a workplace.  The legislation, in effect, assumes that employers and unions have a "relationship" that is separate to that of the employer's relationship with employees.

This is surely a new legal concept.  It's hard to know what it means.

Employers have always accepted that they have a relationship with employees.  After all they have contracts with employees that create the relationship.  Unions may sometimes be involved in employee contracts but only by authority of employees.  There is no "stand-alone" contract needed with unions.

Suddenly this new legislation seems to be imposing an employer-union relationship when no contract exists between them.  In this respect the legislation is highly interventionist.

When combined with the additional new requirement to "bargain in good faith", employers may be staring at a legal squeeze that has not before been experienced.

There are perhaps parallels to the earliest days of the Howard government.  With all the best of intentions, industrial relations legislation had clauses prohibiting discrimination.  Over time these provisions took on completely different meanings to that in common use.  "Anti-discrimination" became a technical, legal tool in industrial relations disputes.

The same thing is likely to happen again.  Through legislative assertion that employers have legal relationships with unions with whom they have no contract, employers will find themselves in technical "disputes".

It's likely that failure to engage with a union will constitute a dispute.  This is a new legal game with strange, unpredictable and unknown managerial implications.

Commercially this heralds uncertainty not before seen.  Presumably attempts to create productivity benefits for businesses, employers and the economy through enterprise bargaining will involve an enforced engagement with unions.

This may be a good thing and, when the detail of the legislation is applied, it may reveal simplicity not clear in the broad concept.  Whatever is revealed this is highly creative legislative design.

It seems that workplace relations is about to undergo a degree and direction of change not anticipated 12 months ago.


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