While there has been a decline in union membership numbers in recent years, statistics indicate that working days lost to industrial action (strike action) remains relatively high in Australia. For the year ending in March 2018, 137,700 working days were lost due to industrial action – this is a significant increase from 122,200 in the corresponding time last year.
This apparent anomaly seems to indicate that industrial disputes are becoming more intense as unions and employers seek to gain the upper-hand in collective bargaining negotiations.
Employees take industrial action to settle workplace disputes about working conditions. Industrial action can take many forms including employees not coming to work, fail or refuse to perform any work at all, delay, ban or limitation on the work they perform, and non-compliance with workplace policies and procedures.
As a result, industrial action by employees can be costly on both the business and your staff. Here are some practical tips for avoiding and managing the risk of industrial action:
1.Plan and Prepare
Disputes most often arise from a poorly planned negotiations strategy. Employers often enter negotiations with unions unprepared for the claims and ill-equipped to effectively respond to situations at the bargaining table. Employers are therefore advised to ensure they are fully aware of the issues the employees face in the workplace and the claims they are likely to encounter during negotiations. This can be achieved through consulting and surveying the workforce to understand their needs and interests. The data collected will enable you to effectively communicate and respond to claims. It is imperative that managers (those who will conduct the negotiations) are appropriately trained in negotiations. Alternatively, employers can engage expert negotiators to either advise or participate in the bargaining process.
2. Understand the principles of bargaining and be persistent in negotiating
Employers should avoid positional bargaining. This is a transactional process where a union serves a log of claims and the employer returns serve with isolated responses which is often met with adversarial and concessional bargaining. This process mostly results in collateral damage and deterioration of the relationship – which ultimately culminates in an industrial dispute.
Rather, parties should focus on interest-based bargaining where the parties engage in a process to identify shared or individual interests and attempt to recognise and find ways to balance these interests. This allows the parties to uncover ways, through the bargaining process, where each party’s interests can be met without any significant disadvantage to the other party. It is only through relational and co-operative bargaining that a dispute may be avoided.
Keep talking with your employees. Constant communication with staff in a clear and consistent style is essential. Open and honest communication will result in employees learning to trust the business and the pressures the business is facing. Telling employees about your aims and goals for the negotiations and the future will ensure they understand your position at bargaining – and that they do not only receive the filtered version of your position through their union representatives.
4. Manage relationship with suppliers and customers
Assess the risk of industrial action early and communicate your contingency plans to suppliers and customers. This requires such plans to be in place before the commencement of bargaining. There is nothing worse than having to make an industrial action contingency framework in the middle of a tense bargaining dispute.
5.Know when and on what to compromise
Don’t expect to win every single claim or to have every interest met. It is usually much better to grant concessions at the right time, and on the right matters than to engage in warfare with your own people. Whilst there might be a union involved, at the end of the day it’s about your relationship with your employees. Once industrial action begins, events tend to take their own course. Often personalities and egos on both sides are making matters worse and once this occurs, nobody knows where it will end.
About the author: Philip van den Heever directs the Commercial Law, Employment Law and Industrial Relations practice groups as Practice Lead and Matter Manager. He has over 16 years of commercial law experience in both South Africa and Australia. His deep understanding of commercial law allows him to wisely direct his clients to succeed in their business development.
 Australian Bureau of Statistics: Industrial Disputes, Australia – Mar 2018