Scene Three – Negotiating Together
Actors:
Dave, Tu.
Setting:
Naturally Baking Limited – Dave’s office.
Dave
Thanks for coming in Tu. I’m pleased you’ll be representing us when we negotiate with the National Distribution Union for the staff collective agreement.
Tu
You’re welcome Dave, I’m looking forward to a bit of action. I understand the staff want to talk about their wages and some changes to the work conditions.
Dave
That seems to be the case. Look, what’s the difference between ‘negotiating’ and ‘bargaining’?
Tu
Negotiating is what happens around the table when the parties are talking about what they want in the agreement.
Bargaining is all interactions between Naturally Baking and the union for negotiating the collective agreement. So, it includes all letters, memos, emails, phone calls and so on relating to negotiations.
Dave
Okay, got it. I understand we must all act in good faith too. We mustn’t do anything to mislead or deceive one another. There are bargaining codes of faith in different industries. This article I got on good faith bargaining says:
[ Reading and counting them off on his fingers. ]
- The employer and union must try their best to agree to a process for bargaining.
- They must meet with one another to bargain.
- They must each consider and respond to one another’s proposals.
- They must recognise the role and authority of one another’s chosen representatives and must not act to undermine them.
- They must, on request, provide to one another any information that is reasonably necessary to support or substantiate the claims upon which their bargaining position is based.
- They are not obliged to come to an agreement as long as their failure to do so is for genuine reasons.
Tu
Yes, so you can’t discuss the negotiations with the workers. You must only interact with their union. Otherwise you may be seen as threatening, misrepresenting, or undermining the union. That’s not acting in good faith.
Dave
It also says that unfair bargaining is when you take advantage of the other party’s vulnerability.
Tu
Yes, but unfair bargaining is about the parties’ conduct during bargaining rather than the terms of the actual agreement that they reach.
When you and your workers are bargaining for IEAs both of you can choose who you like as your bargaining agents – a lawyer or anyone else. Or you can negotiate your own contracts.
It makes sense for you to give some thought to developing some protocols around negotiating individual employment agreements. These could be based on your industry’s codes of good faith. Maybe Business NZ could help you with that.
Dave
I suppose I should let people know before they start negotiating that they can chose a bargaining agent, in case they make a botch up of it. Then they could accuse me of unfair bargaining later because they didn’t understand the process.
Tu
Always pays to cover yourself, Dave. It’s good risk management.
Also, both the union and the employers have to provide information to substantiate their claims. For example we cannot claim that we can’t afford to pay the workers a pay increase unless we are willing to provide financial information to the union verifying that claim.
Dave
That makes things a bit tricky. What if the pay increase they are asking for is 10 per cent? We won’t be popular with other employers if we agree to that! And it would severely limit our expansion.
Tu
But, likewise, the union can’t claim a pay increase that’s more than inflation or the rise in the cost of living, without being able to provide us with information explaining why the increase is considered necessary.
Dave
What sort of information can the union ask us for?
Tu
Usually wages and salaries data, hours worked, insurance and pension plan information, seniority lists and personal information about employees.
Dave
What about privacy and corporate confidentiality issues?
Tu
The information can be given to an independent reviewer if you’re worried about the business being affected. They will decide about confidentiality and if the information substantiates the claim.
Also, bargaining information must only be used for bargaining and treated as confidential to the bargaining representatives.
Dave
So does that mean we need this information ready before we start negotiating? We don’t even know what they might ask for!
Tu
No, there is some common sense applied. A detailed information request must be written and a reasonable period of time given for reply. It must also tell you the claim it relates to.
But it may be useful to ask your administration staff to gather cost, profit, employment and wage data now. It may be useful to make comparisons in the negotiation anyway.
Dave
Okay, I’ll make a note of it.
I’m not happy about showing our hand so openly though.
Tu
It can stop a lot of roguish behaviour that used to waste time and create ill will that hung around after the negotiation.
Dave
So, how do we get this show on the road?
Tu
The first thing we need to do is give the NDU written notice that we wish to start the bargaining process. There is no collective agreement in place so either of us can start the bargaining process and we have no initial time restraints. There is only one union, and ourselves as the employer, which is less complex than multi-party bargaining.
Dave
So if all goes well we could have it all signed up on the day of negotiating?
Tu
It’s unlikely to be settled that fast. Usually we schedule at least three days for negotiating, with some days in between for communication, reflection and information gathering.
Also, a union cannot sign a collective agreement until all the employees covered by it have ratified it. The union may want stop work meetings to meet with the staff, discuss the claims and vote.
Dave
Seems like a lot of lost time.
Tu
Think of all the time it takes to negotiate each employment agreement individually with each employee. Add that time up!
Dave
Hmm, fair enough.
So when we get this collective agreement, that’s it? Nobody within the collective agreement can ask for different terms and conditions?
Tu
Well, not exactly. You and the employee can mutually agree to additional terms and conditions if they do not contradict the CEA.
Okay. Next we need to think about our negotiation strategy, style and ground rules. Can you read this information and give me a ring when you have some more questions?
[ Hands over some pages. ]
Dave
Yep, I’ll do that and get back to you.
