New legislation, old tricks

The last few months have evidenced a new determination by the unions to press an old agenda in Enterprise Agreement making.

The key elements in this agenda are:

• Controls on manning
• Reduction in time for casuals to become permanent
• Limitations on flexibility provisions
• Limitations on when contractors can be used

The role of the union has been broadened. It is now:

• a bargaining representative by default if it has members on site
• capable of forcing Enterprise Agreement negotiations
• enjoying expanded rights of entry.

Yet still businesses fail to treat Enterprise Agreement negotiations as core business.

If I asked a manager to put in a $5 million capex – you can be sure in the thoroughness of the due diligence. You know every aspect of the spend will be considered. Yet not at an Enterprise Agreement level where outcomes are more fluid, less predictable and critical to the businesses success.

What are the things business must do?

• Develop its own log of claims – what it wants most to be a successful business.
• Cost each clause in the existing Collective Agreement – know its true cost.
• Carefully consider the future of the business – don’t permit increases in the redundancy cap if it will bite you in the future.
• Cost each of the unions claims, work out what are no goes, possibles and yeses.
• Lock in a maximum spend with your chain of command. Lock in what claims will never be accepted. Don’t ever breach or approach the no goes without fully briefing the CEO.
• Control the EA documents, minutes, agenda and further information provided. Always control the process – never react.
• Communicate what occurs in the EA meetings always copying in the union – this is not a breach of good faith bargaining. Immediately advise your supervisors and let them communicate directly with the shop floor.
• Gradually increase the pressure. Never let it go. It must increase if you want a result.
• Know your workforce and its capacity to take industrial action. If it is possible create sufficient stock or an alternative service response so clients don’t suffer and the business can continue to run.

Your employees will watch your actions. If it is reaction they will see weakness and smell opportunity. If they see command and control, openness, good communication and feel pressure they will respect the business more, see an outcome achievable through the business and not invest heavily in the union. The choice is yours – the new legislation does not prevent you from securing a good enterprise outcome.

Andrew Douglas is the founder, principal lawyer and managing director of Douglas Workplace & Litigation Lawyers. Andrew is an experienced commercial litigation and workplace lawyer, who acts both as a solicitor and advocate.