Several employers in the tertiary education sector are already looking to implement the government’s proposed employment laws, before Parliament has passed them.
Normally, during each set of negotiations, Tertiary Education Union (TEU) members and their employers agree on a process arrangement, outlining how the bargaining will take place.
Clause 11 of TEU’s generic bargaining process arrangement says that bargaining will be deemed to be concluded when a new collective agreement is signed.
However, several employers now want to amend that clause, saying that although there is a requirement to conclude bargaining under the current legislation, it does not apply in the proposed new law.
Those employers want the process arrangement to allow the new law to apply to bargaining if Parliament passes the statutes.
Under the current law, the parties involved in collective bargaining negotiations must keep bargaining and conclude a collective agreement unless there is a “genuine reason based on reasonable grounds, not to do so.”
This means employers and unions have to continue to bargain in order to try to reach an agreement, even after they disagree.
Unfair proposal
The government now plans to repeal this requirement, allowing employers to end negotiations without any agreement.
Last year, the Department of Labour criticised the government’s proposal in their
Regulatory Impact Statement stating ‘this proposal may encourage poor bargaining behaviour (such as surface bargaining), when one party has no intention of concluding an agreement and does no more than going through the motions to avoid a breach of good faith complaint.’
However, whatever the two parties agree in the bargaining process arrangement will override the law, which is why, employers are keen to soften the requirement to conclude bargaining in the process arrangement ahead of the proposed law changes.
The government has not even introduced its proposed employment laws into parliament yet and there is no guarantee that they will pass.
We are advising everyone negotiating a collective agreement over the next few months to reject any attempt to introduce these new employment laws.
Even if the law changes we will be seeking commitment to employers continuing to bargain until an agreement is reached.
If employers do not have a duty to bargain, they can walk away from their employees easily. Fewer collective agreements will exist and more disputes between employers and employees will arise.
Irena Brornes is the National Industrial Officer of the Tertiary Education Union
