WORKING TOGETHER

LABOUR ON EMPLOYMENT RELATIONS
September 1999

WORKING TOGETHER: LABOUR ON EMPLOYMENT RELATIONS
Labour believes that legislation governing employment relations should recognise the interdependence of workers and employers; promote and sustain economic growth; and assist in achieving a fair distribution of resources.
Legislation should also recognise that the balance of power or influence between workers and employers is not equal. Labour believes that the best way to redress this imbalance is to encourage the collective organisation of workers and to foster collective bargaining as a preferred means of establishing the rights and obligations of workers. These beliefs are shared very widely internationally and form the basis of core ILO conventions.
The current ECA does not and can not achieve these objectives because it is based on the philosophy that market power should determine all outcomes. Labour's policy is founded on the understanding that employment relationships are not just contractual, but are human relationships and should be treated differently.
Labour will therefore replace the ECA with new legislation which:
ü Promotes collective bargaining
ü Recognises unions
ü Ensures union membership is voluntary
ü Is consistent with I.L.O conventions
The legislation will also recognise that because union membership will be voluntary, not all workers will wish to join a union or be covered by a collectively negotiated agreement.
The legislation will give individuals the choice of an individual employment contract but Labour will ensure that individuals have adequate protections to negotiate individual contracts. These protections will include a more comprehensive minimum code of workers' rights (including minimum wages, holidays, access to grievance procedures etc.), the promotion of safer workplaces through better occupational safety and health legislation and systems for enforcing these rights.

Employment Relations Act
Labour will, as a top legislative priority, introduce new industrial relations legislation. The working title of the new legislation is the Employment Relations Act. Its objectives will include:
· Establishing an employment relations framework which provides for the orderly conduct of relations between workers and employers. The legislation will be consistent with the major ILO conventions and require both unions and employers to conduct their collective relationship in good faith;
· Promoting collective bargaining between employers and unions;

ILO Conventions and Freedom of Association
Labour's legislation will be written to be consistent with the core ILO conventions, particularly conventions 87 and 98, which require there to be freedom of association for all workers and employers. This means that the legislation will stipulate that:
· there must be no discrimination against workers on the grounds of their status as union members. In the case of a complaint of such discrimination, the onus of proof should be on the employer to show that discrimination has not occurred;
· there should be no interference by other parties in the affairs of unions or employer organisations.

Unions and Union Membership
Union membership will be voluntary with workers free to join or not join any union. Membership of a union will in itself authorise that union both to represent a worker individually and to represent all workers covered by the collective agreement in relationships with employers and the labour institutions.
Unions will be able to gain legal recognition by applying periodically to operate under the Act. The application will be granted following the submission of a statutory declaration stating that the union is a democratic organisation of workers which is financially accountable to the members, independent of employers and has appropriate rules.
The legislation will not be prescriptive, but will require that a union is a corporate body and has a rule determining how collective agreements it negotiates are to be ratified. Unions will be permitted to have rules requiring that membership be maintained during the initial stages of bargaining.
Access
Unions will have the right to gain access to places of employment to discuss union business with members, to provide information to workers about the benefits of union membership and to recruit new members.
This right will be subject to certain constraints based on the principles that workers have a right to privacy and that employers are entitled to ensure that work is not unreasonably interfered with.
Union members will have the right to attend two union meetings each year without loss of pay, providing the union has given proper notice to the employer and suitable arrangements have been made to ensure the employer's business is maintained during the meetings.
Collective Agreements
This legislation will promote collective bargaining as the preferred means of determining wages and conditions and will provide that once an agreement is in place any relevant worker who subsequently joins the union will be covered by that agreement.
Collective agreements will be defined as being agreements negotiated between unions and employers on behalf of a group of union members. Only unions and employers will be able to be parties to collective agreements. Such agreements will be able to cover any issues the parties agree to, but all such agreements will be required to:
· contain procedures for the settlement of disputes and personal grievances;
· contain coverage provisions which ensure that the agreement covers:
(a) workers who are members of the union and their positions; and
(b) workers in positions covered by the agreement who subsequently join the union;
· be in writing;
· contain a means of bringing the agreement to an end within three years;
· contain a procedure for dealing with new matters.
Collective agreements on their expiry will remain enforceable by the union for a period of up to 12 months providing a notice initiating bargaining remains in place.
Collective bargaining will generally be initiated by a union filing a notice with an employer. That notice will be required to identify the workers on whose behalf the union is negotiating, and the work they undertake. Unions will be able to file a notice at any time within 60 days of the expiry of an existing collective agreement or at any time if no collective agreement exists.
Employers will have the right to initiate collective bargaining where there is an existing collective agreement which is within 40 days of expiry, if the union has not filed a notice.
For the purpose of legal interpretation and enforcement, any collective agreement shall be required to be signed by a duly authorised union official and an authorised employer representative.
The Duty to Act in Good Faith
Labour's legislation will impose a duty on both unions and employers to conduct their collective relationship in good faith. While that will be of particular importance during negotiations, the duty will apply at all times. It will require both parties to be honest in their dealings with each other.
Specifically in relation to bargaining, the duty will include:
· An obligation to meet and consider any proposals made by the other party;
· An obligation to respect the choice of representatives and/or advocates;
· An obligation to provide information necessary for the purpose of bargaining.
The duty to act in good faith will not imply a duty to settle a collective agreement.
Negotiations for a collective agreement will be deemed to have commenced on the filing of the appropriate notice. The legislation will also include provisions setting out the conditions under which negotiations are deemed to have been finalised or have broken down for the purposes of determining the application of the good faith bargaining duties.
The Department of Labour will play an active role in promoting good faith and the Employment Tribunal will have specialist mediators with appropriate background and training, whose role will be to facilitate good faith bargaining. All parties to collective bargaining will have the right to initiate mediation. The duty to act in good faith will ultimately be enforced by the Employment Court, which will have the power to impose a wide range of remedies including economic sanctions
Dependent Contractors
Labour will ensure that all relevant aspects of the legislation cover the relationship between employers and dependent contractors including the right to be covered by collective arrangements.
Multi Union Bargaining
Labour supports moving in the direction of more comprehensive enterprise bargaining around key issues on a worksite, rather than encouraging the proliferation of individual or collective contracts on a site.
To enable this to occur Labour's legislation will provide that if there is more than one collective agreement covering workers on a site, then a notice filed to renegotiate an agreement which is within 60 days of expiry, may include notice to incorporate into those negotiations the renegotiation of other agreements which are within 120 days of expiry.
Similarly, if at least one notice to bargain has been filed, any union not covered by the notice, which has an agreement which is within 120 days of expiry may file a notice to be included in joint negotiations.
If an employer is served a notice by a union wishing to renegotiate an existing agreement, and that employer has workers covered by other collective agreements which are within 120 days of expiry, the employer may notify the workers and unions involved on the site that they wish to reduce the number of collective agreements by incorporating the renegotiation of some or all of the agreements which are within 120 days.
To ensure that the multi union negotiations have priority, any union that chooses not to participate in such joint negotiations will forfeit the right to bargain to renew their existing agreement, until such time as the earlier negotiations have been settled or abandoned.
Multi-Employer Bargaining
Under current law multi-employer contracts are permitted but there is no right to strike in support of such contracts.
Labour's legislation will ensure that unions have the right to initiate claims for, and to strike in pursuit of, a multi employer agreement providing that their members within each of the individual enterprises involved have given majority support for being involved in multi employer bargaining.
A multi employer notice will be able to be filed providing at least one of the agreements which is being sought to be renegotiated is within 60 days of expiry, and the notice may include unions and workers covered by existing agreements which are within 120 days of expiry.
The application of good faith in multi union or multi employer bargaining
Once unions have agreed to become part of multi-union and/or multi-employer negotiations then each union will be bound in matters relating to the negotiations by the decisions of the majority of union members involved in the claim.
In the case of a multi employer claim being lodged involving an absolute majority of the unionised workforce on each of the enterprises involved, the duty to act in good faith will require that negotiations of the full detail of the claim proceed in the same manner as would a single employer negotiation.
In any other multi-employer case the duty to act in good faith will imply a duty to attend meetings with the other parties to seek agreement on the proposed scope of the negotiations. At the request of any of the parties cited in the claim, these meetings could be required to be held in the presence of a mediator with the brief to facilitate an agreement on the scope of the negotiations. In this situation negotiations would proceed only when agreement is reached on which employers will be involved. Employers who do not agree to participate in further negotiation will not be guilty of a breach of good faith merely because they have not agreed. In determining whether the parties have conducted themselves in good faith in attempting to get agreement on the scope of the document the courts will take into account:
· The proportion of any employers' workforce which is involved in the claim; and
· The extent to which there is a legitimate community of interest between the employers cited.
Settlement and Ratification
All collective bargaining settlements will be subject to a ratification procedure which will be determined by the rules of the union. In the case of any agreement involving more than one union or employer, ratification will require a majority from the union members involved.
Employment Relations Education
Effective collective bargaining in good faith demands informed employee representatives with special organising skills, who understand the need for co-operation in the workplace. Labour therefore supports employee access to paid education leave for the purpose of employment relations education including education on the new concept of good faith bargaining.
Employees in collective arrangements will be entitled to half a day of paid leave per person per year, which may be pooled. Labour will provide a centrally administered contestable fund with transparent criteria and will consider applications for funding to assist in the provision of employment related education.
Individual Contracts
Workers will be free to bargain for individual contracts if they choose to do so, and will retain the current protections in terms of access to personal grievance and dispute procedures and will be required to be given a written contract. Individual employment contracts will not be allowed to be inconsistent with an applicable collective agreement.
If they choose, individuals may appoint a person to represent them in negotiating their contract. In addition, employers will be required to be 'good employers' and to ensure all employment relationships with individuals are based on 'trust and confidence'. Workers will also be protected in law from unfair individual employment contracts. Nothing in the legislation will prevent a person representing more than one individual in negotiations for individual contracts.
Personal Grievance Rights
Personal grievance rights for all employees will be retained, as will enforcement procedures. Any probationary arrangement for a new employee must be codified in the relevant employment contract or agreement and will not override personal grievance procedures. If an employee seeks reinstatement it shall be the primary remedy.
Right to Strike and Lock-Out
Labour recognises the right of workers to strike and employers to lockout, as per ILO conventions 87 and 98, as fundamental.
Current rights in relation to strikes and lockouts will generally be retained, so that such action will be able to be taken in pursuit of a collective agreement, which has expired. Further investigation will be made into the issue of liabilities incurred during strikes and lockouts.
Labour will however provide that:
ü In the case of negotiations for a collective agreement where none presently exists, there will be a statutory period of forty days at the beginning of negotiations which must be free of strikes or lockouts;
ü Employers may not lawfully lockout workers who are not part of the collective bargaining. Specifically, employers will not be able to require workers not involved in the relevant collective bargaining to perform work which would otherwise be performed by workers involved in a strike or lockout. The right of the employer to suspend workers where normal work is not available because of a strike or lockout will remain;
ü Employers will not be able to dismiss workers simply because they are taking part in a lawful strike or are affected by a lockout;
ü Workers involved in negotiations for a multi union or multi employer agreement will have rights to strike in pursuit of those agreements similar to those that apply to other bargaining. Agreements that have been brought into negotiations via the 120 day rule will be able to be suspended to the extent necessary to allow lawful strikes and lockouts.
Pickets
The law as it relates to the granting of injunctions to stop industrial pickets will be brought within the legislation and the Employment Court will be given jurisdiction to determine any such proceedings.
Essential Industries
Essential industries will be more tightly defined to ensure the definition only applies to industries where the supply of the good or service is necessary for public health and/or safety. A notice period for strikes or lockouts will be retained for those industries. There will be a requirement to act in good faith during that notice period in an essential industry. This will include the duty to notify the mediation service, within the Employment Tribunal, of the proposed strike or lockout. Mediation should occur before any injunction action is heard by the Employment Court. This will ensure that dispute resolution is available and taken up during the notice period for strikes in an essential industry.
State Sector
The legislation will apply to the state sector on the same basis as it does the private sector. As a policy principle Labour will encourage the use of collective bargaining by state agencies. Labour will ensure that with regard to the state sector the duty to act in good faith will require individual state employers to act in a manner which is consistent with agreed state sector income strategies.
Institutions
Labour will retain the Employment Court and Tribunal and will ensure that the resolution of employment related matters remains within a separate employment law jurisdiction.
Labour will ensure that all the existing institutions are adapted to the objects of the new legislation. Appropriate changes will be made to structures, processes, personnel and training within those institutions in accordance with those objects particularly to support the good faith bargaining jurisdiction and encourage a less legalistic approach to dispute resolution. This will require additional resources being applied particularly within the Employment Tribunal, in order to ensure the availability of an effective mediation service.
Transition Arrangements
Labour will ensure that transition arrangements are put in place which protect the status of existing contracts providing that any such contract that has an expiry date more than three years after the date of the introduction of the legislation will be deemed to expire three years from that date.
With respect to any contract entered into after 1 January 1999, the legislation will also contain a mechanism via which on the application of either the employer or the union representing the workers involved, and after a ballot of the affected union members, the contract may be deemed to expire on 1 July 2001.

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