The Public Service Association has demanded that the government “come clean” after indications from Public Service Minister Judith Collins that it may be considering ways to limit the impact of collective bargaining and strike action in the public sector.
The union has sought “an urgent assurance the Minister will not be restricting the fundamental right of workers to collective bargaining and the right to withdraw their labour”, describing this as “a concerning escalation in this government’s anti-worker agenda”.
It appears, however, that a proposed approach has not yet been settled on, with Minister of Workplace Relations, Brooke van Velden saying that this was not something she had been focussing on and that she had not been “putting forward anything to stop sector bargaining”.
In an environment where workers and unions may perceive their rights to be under attack, this is an issue that will require very careful consideration, and dare I say it, genuine stakeholder engagement and public debate.
As the PSA has said, freedom of association and the right to bargain collectively are fundamental cornerstones of our employment law framework. They are also enshrined in international labour conventions, including the Right to Organise and Collective Bargaining Convention 1949, which New Zealand has ratified.
Interestingly, New Zealand is one of very few member countries that have not signed up to the Freedom of Association and Protection of the Right to Organise Convention 1948. This is largely because of the restrictions contained in the Employment Relations Act 2000 (and its predecessors) on the right to strike, principally by requiring that it relate to collective bargaining. The Convention does not limit it in this way.
Whilst the reasons for not signing up to this Convention may be unrelated, the fact that New Zealand has not done so may be viewed as providing government with more room to move, should it wish to impose additional constraints in this space.
Looking at the options and their implications, the starting point must be an acknowledgement that strike action is supposed to create disruption for employers and to be coercive in nature. It also provides the only real leverage that unions have in a bargaining context. Therefore simply banning it is neither realistic nor right. The solution must relate to how bargaining can be brought to a conclusion when the parties cannot agree and/or how these processes can be more efficiently managed.
One option that already exists is Final Offer Arbitration which is provided for by law within the policing workforce. This occurs when the parties cannot themselves reach agreement and the matter is referred to a third party arbitrator to make the decision. The catch is that the arbitrator is required to choose one or other of the parties positions, rather than seek a compromise between both. This is intended to up the stakes and force both parties to a more realistic approach at risk of losing it all.
Constabulary employees within Police are prevented from striking by law, so this approach ensures that a resolution will, at some point, be reached in the bargaining.
Another option is to enable easier access to facilitated bargaining and for the Employment Relations Authority to be able to make a binding recommendation if the parties cannot agree. Facilitation is already provided for under the Act but the threshold for accessing it is high and it generally only results in a non-binding recommendation, that the parties are able to reject.
Mediation provided by MBIE is not new and is often used in this context, however having a panel of mediators specifically trained in collective bargaining may assist.
If the primary concern of government is the level of disruption when strike action occurs, imposing a mandatory term of 3 years for collective agreements would reduce the frequency of bargaining and therefore the “noise”. This presents challenges in anticipating what level of salary increase should be provided for in years two and three, but this is not insurmountable and generally levels out over time.
As an alternative to pre-setting rates of pay for out years, a mechanism could simply be agreed, for example basing it on the CPI or Labour Cost Index. An independent panel of experts could also be convened to determine pay rates if the parties themselves cannot agree.
It may also be possible to “centralise” bargaining, particularly in the public sector where the Public Service Commissioner is already responsible for bargaining and delegates this responsibility to public sector agency chief executives. Instead of doing so the Commission could negotiate on behalf of all agencies, including on the basis that one “mega” multi-employer agreement be entered into.
This has the attraction of achieving process efficiency and consistency of outcomes but if all public service workers covered by the bargaining went on strike together, the level of disruption would be massively magnified.
A variation on this would be to settle a standard form public sector collective agreement at outset with all relevant unions in an attempt to limit what needs to be re-negotiated on an annual basis.
Returning to the right to strike, imposing further restrictions is likely to be viewed as totalitarian and undemocratic. This right is already circumscribed by the requirement to give notice in essential services and the fact that it can only lawfully occur during collective bargaining (except in limited situations where there is a serious health and safety risk).
There are also obligations on unions in the health sector and within Police, to cooperate in ensuring the maintenance of life preserving services to the public during any periods of industrial action. Government could potentially look at whether any similar “cooperation” arrangements could be introduced in other public sector contexts, however the justification in health is to save lives, not simply to avoid disruption.
There are a range of options, none of which are likely to be embraced by unions. However one thing is clear, imposing a blanket ban on collective bargaining across the public sector, or stripping away the fundamental right to strike, will not create the “calm” or settled industrial environment that the government is seeking.
Originally published in The Post
