3. Legal Framework
An employer’s understanding of the legal framework which underpins the collective bargaining process is now, more than ever, crucial. Many questions arise during a typical bargaining process, particularly where there is protected industrial action and the need for the employer to embark upon other operational change during the negotiation process. These operational changes are often independent of the negotiation process, for example, roster changes or some form of restructure.
An employer needs to understand the full range of options at its disposal in an environment where unions and employees are able to take legally protected industrial action. Can the employer’s offer be made direct to employees? If so, when? Is the threatened action protected, ie, legal? Can the union propose an agreement of different scope to that ‘set’ by the employer? Can we communicate with employees directly to dissuade them from taking industrial action? There are many questions like these that can and do arise. But the employer needs to know which questions to ask!
The recent experience of another employer bears out the benefit of this knowledge. The union put in place certain bans on the employer across a number of sites. Those bans were what are known as ‘partial work bans’ under the Fair Work Act 2009. A ‘partial work ban’ enables an employer to pay employees proportionately less for the work performed (based on a reasonable estimate of what work is performed) or, more fundamentally, not pay the employees at all.
This option is not a lock out (which carries many a negative connotation for employers) but has a strong impact (because employees can choose whether to lift the bans and therefore work, or keep the bans on and not be paid). Whether or not the union in question was ‘cognizant of’ this aspect of the law, the employees were quickly frustrated by the prospect of receiving no pay – a response, it seems, they were not expecting.
4. Communications Strategy
There are two aspects to the development of an effective communications strategy being the internal (employees) and the external (customers/suppliers and the general media). Both elements deserve much thought from those employers involved in a high stakes bargaining scenario.
The enterprise bargaining ‘dispute’ often represents the fight for leadership of the workforce. Indeed, it is the primary vehicle for a union to legitimise its ‘leadership’, mandated by a legal process which entrenches certain union rights. Too many an employer yield to this leadership ‘play’ and allow the union to be the sole or key repository of information when it comes to the negotiation process. So employees are ‘taught’ that it is the union that delivers the employees its wage increase – not the employer who, of course, signs the cheque.
Other employers recognise that whilst it is difficult to ‘win’ what amounts to a communications battle, they nonetheless refuse to yield the space on a matter of principle. Having decided this, careful thought is put into the message to employees and the execution of that message. Above all, the message must be accurate, honest and translate into language that employees understand. We are dealing with questions of trust and nothing the employer should do or say should violate this important value.
Unions are quite adept at ‘spin’. Employers are often reactive to a smart union-driven media campaign. So employers are often pilloried in the media for refusing to negotiate or refusing to meet demands for ‘fair’ pay. They are well advised to adopt a more proactive campaign themselves. Thus, the need for ‘productivity’ and the efforts made by the employer to seek these through long winded negotiations become the theme which the union must then respond to.*