CODE OF GOOD FAITH HOLDS KEY TO PEACEFUL RELATIONS
IT’S AN IDEAL SUBSTITUTE FOR STRIKE AS A SOLUTION TO EMPLOYMENT DISPUTES The Ministry of Employment needs to move fast to set it up and get it running.
Are strikes relevant in employment relations today? That’s the question when one looks at the Employment Relations Act (ERA) and recent union activities. One union recently demanded a five per cent pay rise for its members in its 2017 log of claims.
It threatened to go on strike because the employer said it could not afford it.
The union notified the Ministry of Employment that it was holding a secret ballot on whether to go on strike or not.
The ministry rejected the plan saying the internal processes in dealing with disputes have not been exhausted. The union then took the matter to court.
This idea of unions using strike threats to get what they want is an old style of trying to resolve disputes through militancy.
In the case in question, good sense prevailed. The union members, sensing that their demand was going nowhere, directly talked to the employer, bypassing the union officials.
The members and the employer settled for 2.5 per cent – the members ‘rationale behind it was that half a loaf was better than nothing.
The union had no choice but to withdraw the matter from court.
Now, it is understood that it is submitting the 2018 log of claims with 4.5 per cent pay increase.
One question that needs to be asked is on what grounds are the percentage pay increase claim worked out. It is hoped that these figures were not plucked from thin air?
Under the phased out COLA (Cost of Living Adjustment) used previously by the largest employer, the Government, COLA was based on the Consumer Price Index (CPI) and the Government’s ability to pay.
Even if it looked like a good process, it did not guarantee peaceful labour relations. It did not stop the union from taking its own militant position and strike threats.
One issue that is conveniently ignored by unions is whether employers can afford the pay increase sought. Some may have the capacity to pay. Others may not. They may be forced to lay off workers or could be driven out of business.
There should be a productivity or performance clause in any collective agreement. Any pay increase should be based on productivity.
In the event of a breakdown in talks and the possibility of a dispute escalating to strike threats the solution may be in section 152 of the Employment Relations Act.
It says in 152. - (1) “The Minister may direct the Board (Employment Relations Advisory Board) to develop a Code of Good Faith, the object of which is to provide guidance about the application of the duty of good faith under this Part in relation to collective bargaining.
(2) The Tribunal or the Court may, in determining whether or not the parties to a collective bargaining have dealt with each other in good faith in bargaining for a collective agreement, have regard to the Code.
At what stage of bargaining can a party give notice to strike or lockout? Can the union give the notice before the bargaining or during the bargaining?
After the bargaining, the law provides for the dispute to be referred to the Permanent Secretary for Employment however, parties are at liberty to file an action directly in the Tribunal or the Court?
So when the Court or the Tribunal makes a determination, can the union give a strike notice?
It should be noted that any notice to strike can be challenged in the court of law and injunction is the first remedy.
The question then remains to be answered. What is the purpose of any strike? Will any strike action serve the purpose?
Parties will never come to an agreement on certain matters; such as the demand in increase of wages so what happens in this case?
Will all cases end in strike notice? Is strike a reasonable form of action which the unions are pursuing in the interest of their members or is it for some ulterior motive?
The Ministry for Employment is yet to formulate a Code of Good Faith. This is the way forward - not amending the law to encourage strikes. This code is important because it has the potential to establish an environment that is conducive to stable industrial relations.
Strikes only achieve the following – they are disruptive, counter-productive and cause losses.
Last week, union representatives, employers and Government officials met with the International Labour’s Karen Curtis, ILO’s Chief of the Freedom of Association Branch under the International Labour Standards Department.
The right to strike by workers in the Essential National Industries (ENI) and changes to the employment law were discussed.
Rather than focusing on strikes, the parties should look at bringing to life the Code of Good Faith mentioned in the ERA.
The Ministry of Employment is yet to formulate a Code of Good Faith. This is the way forward - not amending the law to encourage strikes.