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Some
of our key services
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Enterprise Bargaining in 2009
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Enterprise bargaining in 2009
New
rules for bargaining
From the middle of 2009, the rules regulating bargaining in the
workplace will change –
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The
distinction between employee collective agreements on the one hand and
union collective agreements on the other will fall away – there will
now just be Enterprise Agreements.
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Employers
must bargain collectively with employees whenever a majority of
employees in a workplace ask for this.
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The
bargaining, when requested, must be with employees or their
representatives (which may be unions or another agent such as a
consultant).
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The
scope for bargaining – the employees covered by a particular agreement
– must be set.
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The
parties must bargain “in good faith”.
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Bargaining
subjects are those relating to the relationship between employers and
employees, and between employers and unions – a wider formulation than
seen before.
What
are the implications?
With AWAs a thing of the past,
Enterprise Agreements will now figure as the main gateway
for
–
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employers
to customise their terms and conditions of employment in variation of
the applicable modern award; and
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employees
and their representatives to improve wages and working conditions.
The
result is that the parties will have greater need and incentive to
bargain collectively. In particular, employees who have in the past
worked under AWAs or perhaps had their employment terms set
unilaterally will be keen to trigger bargaining to see what it delivers
for them. Significant, too, is that unions will have easier access to
both the workplace and the negotiating process – they can come in
whenever an eligible member asks for representation.
The
likely impact: a distinct rise in the incidence of collective
bargaining and a greater presence of unions in the process as well.
Time
for some strategic decisions
How should employers react to the mid-2009 changes? Let things unfold
as they will, set out to
contain
unions or engage with them actively and constructively?
Unions,
too, stand at the proverbial fork: they can engage employers either
aggressively or cooperatively; the new scheme of things provides both
crowbars and bridges. Circumstances will dictate some strategies,
choices will determine others.
Containment
or aggression may work for some; it may even work for many. Our
interest, though, is in supporting parties keen to look beyond the
shifting political sands (what goes around comes around). We can assist
those who see in the new law a long-term invitation to seize on a
well-researched truth: great workplaces turn on great working
relationships between all stakeholders,
founded on trust, respect and good information flows. We are looking
for parties who take freedom of association seriously and want to
engage with one another productively over the long haul.
Where
we can help
For parties who want to prepare constructively for the new legislative
framework but are saddled with either poor or undeveloped relations
with their counterparts, we can help you -
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conduct
a facilitated relationship review with the key stakeholders: senior
management and employee representatives. We would suggest the parties:
debate what model they want to adopt in greeting the future, and why
they might want to do this; jointly assess the prospects for a high(er)
trust relationship; think about where bargaining sits in the larger
workplace dynamic, and how it should be geared and aligned if good
business and employee outcomes are the goal; plan and act accordingly.
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engage
jointly in training for bargaining. Better to have all parties equipped
with similar insights, skills and tools.
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meet
to settle a supportive bargaining protocol. “Good
faith” bargaining in itself is a guarantor of very little. Wilful
parties can frustrate the best legislative intent. A protocol developed
jointly and based on shared understandings and goals helps to carry a
productive process.
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bargain
in the spirit of your protocol.
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implement
and resource your bargain.
Feel free to contact us to work out the
best way forward.
Newsflash: Workshop on Making
Bargaining Work in 2009 - see here.
Training for Bargaining — Making
bargaining work
The problem with
conventional enterprise negotiations. Bargaining is often
a rough encounter. Union and employer representatives arrive with their
positions and predispositions, and play them out in what is often a
win-lose exchange. Narrowly conceived productivity gains are traded off
against wages rises to secure a deal. By the time the third and later
rounds of enterprise bargaining are underway, things are often
ritualised, fractious and unimaginative.
When things get difficult, conflict begins to escalate. Industrial
action is threatened or resorted to. Tribunals and courts become
involved, and much energy is expended downstream on dispute resolution.
It shouldn't be that way.
A different approach.
Employer and unions have shared as well as competing interests. The
challenge of the bargaining process should be to expand the common
ground and manage the differences intelligently. The emphasis should be
upstream – on preparation
for bargaining and dispute prevention.
Interest-based (as opposed to positional) bargaining techniques have
been developed to turn the bargaining process from a testy trade-off
into a mutual gains event. CoSolve
has a process designed to foster this result.
Training for
Bargaining - how does it work? Parties serious about a new
approach would engage CoSolve
for a two-stage process. Firstly, well in advance of the first round of
bargaining, union and management negotiators would participate in joint
training in interest-based bargaining. The object is to learn the
rationale and techniques of 'value creation' rather that 'value
claiming' in the bargaining process.
Secondly, the parties would meet for a facilitated workshop on a common
approach and ground rules for the pending negotiations. The workshop
would cover both content and process: the business environment, the
strategic plan of the business, union and employee perspectives and
expectations, broad issues for negotiation, possible choke-points,
information-sharing for negotiation, a timeline for and the logistics
of negotiation, rules of conduct, how to deal with any disputes, media
and public relations, and the like.
The workshop would conclude with a joint minute of what was agreed on
both process and content. The exercise is aimed at enhancing the
chances of achieving the optimum enterprise agreement, namely one that –
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is arrived at
through efficient negotiations;
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represents a
fair, realistic and durable balance of interests; and
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is achieved
without cost to the parties' long-term relationship.
CoSolve is often
retained by the parties to facilitate the bargaining process itself, in
a manner consistent with the approach and objectives of the training.
Facilitating Enterprise Bargaining
In most cases, parties will negotiate their agreements without any call
on outside resources. However, there may be circumstances where it
makes sense to use, by consent, the services of a dispassionate and
independent facilitator. This open-textured process may help where –
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the
issues are complex or the stakes high;
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a
third-party presence promises to make the negotiating process more
constructive and efficient;
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a
process combining negotiation, mediation, problem-solving and
facilitation is indicated;
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past
conflict has damaged the trust relationship between the negotiators; or
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negotiations
are at an impasse and a fresh perspective may deliver a break-through.
The
facilitator may help in the general preparation for bargaining,
including information-sharing and fact-finding. During the bargaining
exchange itself, the facilitator may act as mediator, reality-tester
and option-provider, amongst other things. Public communications may
also be handled through this office.
Our objective is always to search out and promote shared interests and
therefore mutual gains. We recognise, though, that there will regularly
be moments of hard bargaining in any negotiating situation. Some
interests simply compete, most notoriously when the wage-profit cake
needs to be cut. Here our job is to help the parties manage the
conflict as intelligently as possible –
to arrive at realistic outcomes without first having to go over the
brink.
As
in mediations, the facilitator does not make decisions on substance and
cannot bind the parties to a particular outcome. It remains for the
parties to make the own deal.
Ongoing
Consultation - Boosting Employee Contribution and Rewards
Bargaining
over the work-wage deal typically monopolises the attention and
energies of the key workplace figures. This is not surprising, as money
counts in anyone's language, and the prospect of a strike or lockout
always concentrates the mind. But bargaining –
especially in an adversarial setting –
turns largely on value claiming and not value creation.
Businesses
are not grown during the spike of activity that bargaining represents,
but courtesy of the steady, ongoing network of workplace processes and
relationships. How can these processes and relationships be improved?
Employee interest needs to be attracted and talent tapped - for mutual
gain. That's the hallmark of the learning organisation. Properly
designed and properly functioning consultative processes can be the
best delivery mechanisms for effective employee participation in
pursuit of these goals. But then the foundation of trust must be
developed, and so too a clear business understanding amongst employees
and their representatives, and for that matter managers as well.
Consultative bodies must be properly empowered and resourced; the right
balance struck between effective consultation and efficiency in
decision-making; the necessary skills sets cultivated, and the
cross-over to the bargaining process carefully engineered.
CoSolve
has a wealth of comparative and local experience in this area, and is
well placed to help stakeholders serious about co-operation and
contribution to achieve a really competitive and rewarding edge.
Relationship-Building
Initiatives (RBIs)
- developing or restoring
workplace relations
What is a Relationship-Building Initiative? An RBI is a carefully
structured and independently facilitated process designed to help
employers, employees and their representatives review their
relationship, identify strengths and weaknesses and set common goals
for a more productive future
When would this process be used? To rebuild a relationship damaged by
past conflict, or to change an under-performing relationship into a
productive one. The intervention of professional and impartial
facilitators often helps the parties deal with the legacy of past
industrial strife, overcome personality differences, settle
long-standing grievances and review dysfunctional employer-employee
practices and structures.
In
practice, and RBI is often used to get relations on a sound footing
before commencing bargaining for the next collective or enterprise
agreement.
How
is the process initiated, and then run? Stakeholder consent to the
process is the starting point. The facilitators then meet with the
parties, usually separately, to scope the issues and agree the optimum
process.
The form of process will vary from case to case, but the
problem-solving approach remains the same. A standard initiative would
be built around a structured event, with key union/employee and
management representatives meeting under independent facilitation over
several days at an appropriate venue. There they would engage one
another in accordance with a prepared program. The typical outcome
would be an action plan on the way forward, coupled with monitoring and
review steps.
In some cases, however, the intervention would not take the shape of a
concentrated event but rather a series of structured engagements. The
end product would be similar, though: consensus on an action plan for
managing change and improving relations.
Co-operative
Change Initiatives (CCIs)
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aligning business plans with employee interests
What is a Co-operative Change Initiative? A CCI is a structured and
independently facilitated engagement between workplace stakeholders.
Its wider goal is to align employee and industrial relations with the
corporate business plan. Its immediate goal is to win consensus on
change issues at the workplace. A typical CCI will involve a mix of
needs analysis, objective setting, joint problem-solving, mediation and
negotiation. A CCI is designed to promote the achievement of clear
business objectives while meeting employee needs. It stands in contrast
to a more traditional approach, where plans for change are summarily
announced and the ensuing conflict dealt with on a reactive and ad hoc
basis through the courts or tribunals
When would this process be used? A CCI makes sense when –
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significant
business restructuring is required;
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the
restructuring entails major alterations to work practices or conditions
of service, and the changes are hard for employees and unions to
accept;
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there
is a basic rationality to the proposals on change; it is in the
long-term interest of the organisation, the employees and their unions;
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there
is flexibility in the plan.
How
is the process initiated and conducted? As with Relationship-Building
Initiatives, stakeholder consent to the process is the starting point.
The facilitators then meet with the parties, usually separately, to
scope the issues and agree the optimum process. The form of process
will vary from case to case, but the problem-solving, consensus-seeking
approach remains the same.
Investigations
& Fact-finding
Controversy
in the workplace is a fact of life. And when an issue does arise, there
are typically opposing views over what precisely is at stake, what's
causing it, who's to blame and what's to be done. There may have been
allegations of harassment, that a management style is damaging
shop-floor relations or that a work arrangement is an unnecessary
burden. Very often the grievance is accompanied by a demand that
someone or something has to go. Recriminations abound, internal
investigations become bogged down and litigation is threatened or
initiated.
CoSolve
is able to intervene in these circumstances and provide an objective
investigation of the facts and surrounding circumstances, and to draw
conclusions that may assist the parties. Very often we are also asked
to go further - to mediate and problem-solve issues. And, in the event
of a persisting problem, it's not uncommon for us to be requested to
propose recommendations on a resolution, or even to arbitrate an
outcome.
Our
experience shows that a credible and independent investigation process
will generally be able to cut swiftly to the chase, isolate what counts
and point the way to a solution.
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