Workplace negotiation - Research Paper Example

?Sta y collective bargaining systems have proved to be quite ineffective in promoting the widespread practice of collective bargaining in many industrialised countries. Therefore, these systems have failed to advance the benefits of collective bargaining for workers and employers. The success of negotiations in the workplace is usually depended on the willingness of the parties to arrive to commonly accepted solutions, meaning that the decisions made should respond to the interests of all participants. The collective bargaining systems have been introduced in order to help towards the improvement of communication between employers and employees – referring to both the private and the public sector (Adams 1999). However, the above target is not always achieved. In this way, the value of collective bargaining, as a tool for communication/ cooperation in regard to the employers’ and the employees’ rights is reduced. The reasons for the failure of statutory collective bargaining systems in promoting collective bargaining are presented and analyzed in this paper. Reference is made, as indicative examples, to two Anglo-Saxon countries, US and Australia. It is proved that the statutory collective bargaining systems in countries with common legal environment are likely to present similar weaknesses; the characteristics of a country’s legal framework are therefore of critical importance for the prospects of the particular country’s statutory collective bargaining systems (Davidov 2004). However, the influence of the local social ethics and culture should not be ignored. Workers are likely to join the unions in order to be able to bargain more effectively for their rights/ interests (Davidov 2004). However, in most cases, their expectations are not met, a phenomenon common for employers who, by their side, are often opposed to unionism and collective bargaining. Similar approaches have been introduced in Anglo-Saxon countries regarding the form and the promotion of their statutory collective bargaining systems. In the case of USA, the protection of unionism has been set as a priority by legislators. It seems that the threats against unionism have been considered as a significant obstacle for the successful development of collective bargaining in the particular country. This fact is revealed in the Wagner Act of 1935, the legislative text incorporating the criteria for the establishment and the expansion of collective bargaining in USA. The above Act has a critical weakness: it emphasizes on the process of establishing a relationship between the union and the worker – meaning that the employees recognize a particular union as their representative in the bargaining process – and on ensuring that the bargaining process begins (Cox et al. 1950, p.389). No reference is made to the principles or the methodologies on which the collective bargaining process will be based. In this way, it is possible that violations of the rights of either of the parties are taken place since no standards or requirements are set for the development of the process (Cox et al. 1950, p.389). The above phenomenon is, still today, a key characteristic of the collective bargaining process in USA showing the gaps of the legislation in the specific field. In accordance with Cox et al. (1950) the above trend could be possibly explained by the following fact: since their appearance, unions have managed to increase their power. In fact, the growth of unions has been continuous and impressive causing strong pressures to the markets globally. For this reason, it is implied that no support is required to the collective bargaining process, as a procedure in progress; rather, emphasis should be made on the protection of the process as a tool for communication between employers and employees. In other words, since trade unions exist in a particular country and since the access of employees to them is secured, then no further action should be taken for the promotion of unionism and collective bargaining. This is the idea on which the statutory collective bargaining systems in USA are based. The above system has been proved rather ineffective; indeed, in cases where the unions participating in the collective bargaining process do not have the economic power to press the employers for a fair arrangement of their disputes with employees, the solution of the court is often chosen. In the study of Cox et al. (1950) reference is made to the Inland steel case. In the above case, the employer, Inland Steel Company, had refused the right of the union, the United Steelworkers of America, to participate in a collective bargaining process regarding the retirement plans of the firm’s employees. The case was brought before the Courts. It was decided that the firm’s argument for non-power of the union to participate in discussions related to the employees’ pensions should be rejected; it was held that no such right should be prohibited to the specific union since ‘pension’ belongs in the same framework with ‘wages’, a fact that justified the involvement of the above union in the collective bargaining process. The dispute was resolved in favor of the employees, however, the case revealed the gaps of the existing legislation; the term ‘organization for bargaining’ as mentioned in the Wagner Act (Section 8) should be alternated supporting more effectively the collective bargaining process. The weaknesses of the statutory collective bargaining systems in USA are reflected in the following phenomenon: for the period between 1993 and 2003 about 22,633 workers – at an average level – were given by the Court the right to ask for compensation by their employers for having faced discrimination in the workplace because of their participation in unions (Gall 2009, p.20). The specific fact proves the lack of effectiveness of collective bargaining systems, which, if they were appropriately adjusted, could have managed to attract the interest of employees and persuade them to be positive towards collective bargaining. Similar weaknesses can be identified in the legislation regulating the collective bargaining process in Australia. In the above country, different legal texts can be used for identifying the criteria and the methods applicable on the collective bargaining process. In 20th century, the collective bargaining process in Australia was mainly based on the Conciliation and Arbitration Act of 1904. The specific law was effective in regard to the common collective bargaining process but it was proved inadequate in order ‘to cover the needs of collective bargaining at enterprise level’ (Creighton 2011, p.116). The above problem was resolved through a series of agreements, the Australian workplace agreements (Creighton 2011, p.116) that supported the collective bargaining process within enterprises. In 2009, the Fair Work Act 2009, helped to address all issues related to collective bargaining being applicable on disputes developed at all business levels – including large corporations. In accordance with Creighton (2009) the above law gave to the Australian legal system a competitive advantage towards the other Anglo-Saxon countries, such as USA and UK, especially in regard to the law regulating the collective bargaining process. The value of the Fair Work Act of 2009 can be made clear if compared when the past laws on collective bargaining in Australia. As noted above, the establishment of collective bargaining in Australia has been related to the Conciliation and Arbitration Act of 1904. However, the above Act has certain weaknesses – quite important. Primarily, industrial action was not legally justified; even if such activities were allowed, still, the law considered them as unlawful. At the next level, the referral of a case to the tribunal could not denied by either of the parties; this means, that if one of the parties decided to refer a case to the tribunal, the other party was obliged to accept the particular process (Creighton 2009, p.118). Another weakness of the above Act was the following one: there were cases where the parties reached an agreement, but still they had to ask the tribunal to verify this agreement; i.e. their dispute was referred to the tribunal without their consent and without such need to exist (Creighton 2009, 118). In this way, the credibility of negotiations as part of the collective bargaining process was clearly doubted. A series of legislative texts were introduced for facing these problems (such as the Industrial Relations Act of 1988 and the Industrial Relations Reform Act of 1993, in Creighton 2009, p.120). The problems in the development and the verification of the collective bargaining process could not be controlled. The first important effort for reforming the collective bargaining systems in Australia reflected in the Workplace Relations Amendment Act of 2008. The above Act did not abolish the requirement of no-disadvantage test for collective agreements (Creighton 2001, p.123). The Fair Work Act of 2009 has effectively addressed all problems related to the collective bargaining process in Australia. Despite the fact that the above legal text was primarily introducing for offering full coverage to the collective bargaining processes developed at enterprise level, it also helped to the improvement of the performance of these processes as related to different organizational levels. The benefits of the above law could be described as follows: a) three categories of collective bargaining agreements were established: the single enterprise agreements, the multi-enterprise agreements and the Greenfields agreements (Creighton 2001, p.126); the first two types of agreements are developed between employers and employees while the third one requires the participation of employers and trade unions – i.e. employees do not need to participate in the relevant negotiation; by choosing the form of agreement most appropriate to their dispute, employers and employees can reach more effectively an agreement; b) despite the fact that the above law recognizes the right of the employer to initiate the bargaining (in section 173), it still provides to employees and unions the option to press the employer for proceeding to collective bargaining – in case that the employer is negative to the specific process (sections 236 & 240); the option of the industrial action is also available to employees and unions for pressuring employer to participate in a collective bargaining process (Creighton 2001, p.126), c) even if collective bargaining as a tool for communication between employers and employees is a collective process, it is fully covered in all its parts by the FWA, at such level that it can be characterized as both a collective and an individualistic process (Creighton 2001, p.143) – meaning that it protects the rights not just of employees as a group of persons but also as individuals, d) the Fair Work Act secures the power of unions to participate in negotiations with employers for supporting the rights of their members (Creighton 2001, p.143) The development of collective bargaining systems in countries worldwide has not been equal. In regard specifically to the Anglo-Saxon countries it has been proved that their decisions related to the collective bargaining process are highly influenced by their legal tradition. At the same time, the social and cultural ethics have been also proved as influencing the legislative choices of countries. The above fact has been made clear in the case of Australia. Even if the specific country is based on the Common law, as all Anglo-Saxon countries, still it has been differentiated from the other countries using the same legal framework, as for instance the USA, the performance of which in establishing effective collective bargaining laws has been reviewed in this paper. Under these terms, it could be stated that the collective bargaining systems cannot be considered as de facto (i.e. necessarily) ineffective in supporting the collective bargaining process. Rather, the performance of these systems depends on the willingness of the local political and judicial authorities to proceed to the necessary changes for supporting more effectively collective bargaining as a key element of industrial relations. References Adams, R. (1999) Why statutory union recognition is bad labour policy: the North American experience. Industrial Relations Journal, Vol 30, No 2, pp.96-100 Cox, A., Dunlop, J. (1950) Regulation of Collective Bargaining by the National Labor Relations Board. Harvard Law Review, Vol. 63, No. 3, pp. 389-432 Creighton, B. (2011) A Retreat from Individualism? The Fair Work Act 2009 and the Re-collectivisation of Australian Labour Law. Industrial Law Journal, Vol. 40, No. 2, pp.116-145 Davidov, G. (2004) 'Collective Bargaining Laws: Purpose and Scope', International Journal of Comparative Labour. Law and Industrial Relations Vol. 20, pp. 81– 106 Gall, G. (2009) Statutory Union Recognition Provisions as Stimulants to Employer Anti-Unionism in Three Anglo-Saxon Countries. Economic and Industrial Democracy, Vol 31, No 1, pp.7-33 The Fair Work Act 2009 The Wagner Act of 1935 Read More