Closing Loopholes Or Throwing Lifelines…

This instalment of our series on the Closing Loopholes Bill considers new measures aimed squarely at union empowerment.

The Bill mandates rights for union workplace delegates that must be included in all Modern Awards and future enterprise agreements. As a minimum, these rights will be to:

represent members and non-members who are eligible to join the union;
• "reasonable" communication with members and prospective members;
• "reasonable" access to the employer's facilities; and
• for all except small businesses, "reasonable" access to paid (delegates) training.

The "loophole" these unprecedented new laws intends to close is unstated. Because there isn't one: this is a lifeline to provide unions universal representation in workplaces regardless of their declining membership or employee choice.

The context

We know that union membership has been declining in real terms over many years. It's hit an all-time low of 8.2% in the private sector.

Unions say they need more rights to arrest this decline. But it might also be true that the value proposition to prospective members is not attractive enough. Perhaps all employers aren't "bad" after all. Perhaps the strong suite of ever-growing individual rights (more leave, more protections against discrimination and harassment, robust safety laws, and well-resourced regulators) makes unions less relevant. Perhaps the positive employee engagement strategies many employers adopt mean unions are less needed. And perhaps the way some unions conduct themselves is unappealing to workers.

Whatever the cause, fewer and fewer employees across the labour market choose to join and be represented by unions.

This makes unions less relevant. Pretty much every unionised workforce comprises three groups:

Group 1: Union members who look to leadership from the union on most workplace issues.
• Group 2: People who want to make sure they are treated fairly and get good conditions, some of whom will be members of the union, but many will not.
• Group 3: People without interest in joining the union or participating in its activities. In some industries, a subset of Group 3 is those who join a union because they are coerced into doing so. "No ticket, no start", as they say.

The proportions of each group vary significantly across different workplaces.

Traditionally, unions engage with employers on behalf of their members. Falling membership means, even in unionised workplaces, Group 1 is commonly only a small proportion, well short of the majority. Unions no longer speak on behalf of enough people in workplaces to achieve their objectives. They no longer represent the majority for the purposes of processes like enterprise bargaining and raising workplace disputes. So, getting employee interest in union business, such as "union rights" clauses in agreements (aimed at delivering the type of rights the new laws will mandate), is getting harder.

This is why the statutory extension of workplace delegate rights to represent non-members (eligible to join the union but have chosen not to) is essential for them.

Unions would only need one member in any workplace to trigger these rights. With it comes a right to 'represent' and speak on behalf of all workers eligible to join the union (members or not) on any issue and to communicate with all such workers. Effectively, a right to intervene whether the employees directly involved want them to or not.

Why wouldn't you want to be a workplace delegate? Paid time during working hours to communicate and represent, and some additional time off for training with the union.

The reality on the ground

Unions talk about "campaigns" and "organising". What will the new laws look like on the ground?

Meet our example employer, FoodCo. The union endorses three union delegates representing different groups in FoodCo's manufacturing business: Daisy Delegate, Doug Delegate and Dave Delegate. Each delegate exercises their new rights as follows:

Daisy Delegate books a meeting room. She does so to make a call to a union official. She does this daily. Her supervisor asks her to do this during breaks, but that's not convenient for the union. The calls last up to 30 minutes. There's no apparent outcome other than FoodCo is down a worker on the production line. A cause for delay. A cause for overtime to be worked as a result.
• Doug Delegate also conducts regular ad-hoc meetings during the afternoon shift. He's been asked to do this in the tearoom, but there is no whiteboard there. So, the meetings occur in an office building on an adjacent site. Production is regularly interrupted. He's asked to work with the supervisor to conduct meetings in a less disruptive way. He does so for a few days and then returns to ad hoc meetings. He says this is the only way he can talk to workers. And sometimes he forgets to book the meeting room as is expected of anyone else. On one occasion, he wouldn't leave a room that management had already booked.
• Dave Delegate wants to meet with the two others for two hours. But he's on the night shift. So, he wants to meet with them as part of ordinary hours. This enables him to receive overtime. They want the boardroom, a speaker phone, and no other rooms booked nearby lest their calls can be overheard.

All this calls into play what's "reasonable". But "reasonableness" can only provide a partial answer. What can't be overcome is the regular attempts to press management's tolerance in the quest to assert "delegate rights", which is in and of itself draining and disruptive.

This will happen because the changes require employers to "deal with delegates" and "not hinder or obstruct delegates exercising their rights". Employers face liability for doing the wrong thing. There is no such sanction for delegates who overstep the mark in the exercise or purported exercise of their powers.

Sure, the scenarios above will not be universal. But neither are they fanciful: they are based on real disputes under union rights clauses in existing enterprise agreements. And there are countless other examples.

The upshot

Five key implications follow from these measures:

1. The ability of an employer to limit delegate time on union business (as opposed to what they are paid for) will be compromised. They will be paying employees whose attention will necessarily be diverted elsewhere and antithetical to the interests of the employer and, potentially, employees.
2. Expect to see more delegates on the floor. Working under union direction will be more fun for some Group 1 employees - especially if the boss pays.
3. Work will be more prone to interruption. Unions have the potential to have on-the-job discussions with employees during paid time.
4. Non-union members will be caught in the wash of workplace issues they have no interest in.
5. The question of whether and to what extent an employer can discipline an employee who misbehaves whilst exercising "delegate rights" will again arise - an issue ripe for union litigation against employers as they seek to press the boundaries in reliance on these new rights.

Where to from here?

That a broad legislative mandate is required to compel employers and non-members to recognise and deal with union representatives is telling of a much deeper problem for the union movement: that not enough workers want them involved in their affairs. How workers who have chosen not to be union members will react to this forced intervention remains to be seen.

Of course, unions will still want members; they are businesses, too, and that is how they make money. If past attempts to try and deal with that problem by stronger statutory rights (e.g. a right to meet in break rooms) is any guide, these representative rights are unlikely to win workers over to join them.

And what happens to freedom of association when a union can speak and agitate "on my behalf" even though I disagree with the union's position and I am not a member?

You know, the other side of freedom of association.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Mr Henry Skene
Seyfarth Shaw LLP
233 S. Wacker Drive, Suite 8000
Chicago
Illinois 60606-6448
UNITED STATES
Tel: [phone]
Fax: [phone]
E-mail: [e-mail]
URL: www.seyfarth.com/

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