Can unions resurrect glory days with friendly legislation?
OPINION: Workplace Relations Minister Iain Lees-Galloway has signalled that the changes to employment law are intended to ‘‘strengthen collective bargaining, lift union numbers, and ultimately lift wages’’.
The question, though, is whether this is too little, too late?
Union participation rates in New Zealand are now down to around 15 per cent, compared with 40 per cent in 1990 prior to the introduction of the Employment Contracts Act.
It is widely accepted that the Employment Contracts Act broke the back of the union movement and it is uncertain whether it can now recover.
The Employment Relations Amendment Bill seeks to increase union membership by requiring every new employee to make an active choice as to whether or not they wish to join a union.
Employers will be required to provide all new employees with a form that they have to complete, stating their choice.
If they fail to complete the form, their details may be passed on to the union regardless.
The bill also provides that unions may require employers to distribute information to new employees about the role and function of the union.
There are virtually no constraints on what might be included in such information packs, other than that the content cannot be defamatory or confidential.
As a result, we are likely to see unions aggressively ‘‘pitching for business,’’ and in many instances competing with other unions for members.
Union rights of access to workplaces are also bolstered by removing the obligation to seek the employer’s consent and give prior notice.
This means that union officials can simply arrive and require access, which the employer will have to allow, unless it can demonstrate that this will result in unreasonable disruption to its business, or a threat to health and safety or security.
Such rights of access can be for purposes relating to any union business, including recruiting new members.
Union delegates in workplaces will also be allowed reasonable paid time off to represent employees, for example, in collective bargaining or disciplinary matters.
These changes are sure to make unions more visible.
However, the lift in union membership that the legislation is designed to achieve will only occur if employees believe that the value they get from being a union member is worth the cost of union membership. This is typically around $500 per year.
How, then, do unions create that point of difference and be seen to be adding value?
One approach is to work collaboratively with employers in the manner of business partners.
Many unions do this very successfully with win-win outcomes for both the employer and employees.
But there is a risk of being seen to be in bed with the employer and not strongly enough advocating in members’ interests.
The opposite approach is an adversarial and combative one, which often puts employees off. Unions face a difficult balancing exercise in this regard.
The other challenge for unions is that employees may want to see runs on the board before joining.
This is a catch-22 because the most significant role of unions is to negotiate collective agreements and pay increases for members.
Where membership numbers are low, unions generally do not have enough leverage to compel employers to offer more than what they are comfortable with.
The amendments in the area of collective bargaining, including the obligation to conclude a collective agreement, will make some, but not much, difference in this space.
The change that will have the most impact in this area is the removal of the right to make deductions from pay in partial strike situations.
This means that employees can engage in ‘‘nuisance’’ strike action such as working to rule, or refusing to attend meetings or complete paperwork, and suffer no adverse consequences.
Because of this, partial strikes can go on for months with very little that the employer can do about it other than to lock out or suspend striking workers.
So, there is a real opportunity here for unions to recapture the initiative and momentum in industrial relations.
They have been given the tools, but will need to be smart about how they use them, because if membership numbers do not grow under this legislation, they may never recover in New Zealand.
Susan Hornsby-Geluk is a partner at Dundas Street Employment Lawyers. www.dundasstreet.co.nz