Ports of Auckland management have called for facilitation, claiming the union won’t shift. By not shift they mean the union won’t sign up to a deal that allows the port to contract out whenever it likes.
This is an interesting situation. If it goes to facilitation an Employment Relations Authority member may be very reluctant to recommend a settlement with a no-contracting clause as that’ll be seen as interfering with management’s right to restructure their business. However if it looks like any settlement would be discarded for contracting immediately after it was signed there may be enough pressure on the authority to limit contracting in the settlement.
Of course a recommended settlement is non-binding but the next step is binding arbitration – that’s never been done under the Employment Relations Act. Usually what happens is the recommendation is accepted or a deal is struck before a settlement is recommended – that’s because a side that refuses a recommended settlement risks losing moral authority in the dispute. If I were MUNZ I’d accept facilitation but make it clear right from the start (and publicly) that they couldn’t accept a deal that didn’t exclude full-scale contracting as any such agreement wouldn’t be worth the paper it was printed on.
This is because if the union accepted a settlement with no contracting protections the company would then be free to contract out immediately and there would be no right to industrial action as such action is unlawful during the term of an agreement. Given the company’s recent behaviour I think it’s highly likely they’d sign and then restructure.
My instinct is that PoAL have been biding their time by pretending to bargain (known as surface bargaining) until they feel they can call for facilitation without being seen as the antagonising party. They’ll be betting on a weak authority recommendation in the hope that the union signs and they can then announce contracting out.
However I think that what will happen is either there will be a weak recommended settlement and the union members will refuse to sign (and why should they when such a deal would do them in?) or the authority member will put a no-contracting clause in the recommended settlement and the company will refuse to sign. I think the former is more likely than the latter.
If that happens and no deal is done outside of this process then the next step is arbitration (again, for the first time ever). I think it’ll go this way because while union members can’t afford to lose their jobs, the port management don’t care how much damage they do to the port so they’ve got no incentive to not let this play out all the way to the end.
If anything this dispute points to a flaw in the ERA in that the legislation relies on two parties to be restrained by self interest – workers don’t want to lose their jobs and employers don’t want to lose their business. Which means no matter how rough it gets there is always mutual self interest pushing the parties toward good faith bargaining. In this dispute the board and management don’t appear to have any care for the business whatsoever – which leaves them without any firm incentive to act in good faith. This would never have happened under the old arbitrated award system or alternately if the law included the right to take industrial action in response to contracting out.