The sudden need to negotiate wages may spawn the rise of third-party bargainers. But the jury is still out on their merits. Brad Hatch reports.
Companies have often been unhappy about unions operating as the' 'third party" in negotiations between employers and
But under the new industrial relations laws, the "third party" in the form of an individual bargaining agent paid anything from $150 to $750 or more per hour - could become a regular part of discussions about pay and conditions.
Australian Industry Group (AiG) chief executive Heather Ridout says the new legislation is likely to lead to the growth of a fee-for-service employment advice and advocacy industry, run privately and comprising former lawyers, human resource managers, mediators and even former union officials.
From an employee's point of view, Ridout says, workers can benefit greatly from having a professional do the talking.
"It is probably a good idea to keep (employees) away from the bargaining table but we don't want to turn into a lawyer's society," she says. "Not everyone can afford that luxury. There are access and cost issues that need to be considered."
According to the office of the Federal Minister for Employment and Workplace Relations, Kevin Andrews, an agent does not have to be a professional or lawyer.
"An agent can be mum, dad, a family friend, a union official or anyone you trust," a spokesman for the minister says. "Once you appoint an agent the employer is obligated to deal with them."
Opposition Leader Kim Beazley has ridiculed the idea that workers could appoint anyone they trusted - for example, their accountant to be their bargaining agent in negotiations with their bosses.
"Does the minister expect nurses, social workers, cleaners, bricklayers and apprentices to all bring their accountants?" Beazley asked in federal parliament earlier this month.
"Minister, to assist in negotiations, should Australian workers also bring along their butlers to help them make the tea?"
The managing director of the Sydney-based Resolution Centre, Katie Graham, says “it is nonsense to say that a worker and employer come to the negotiating table with equal bargaining power".
Graham says good agents have a sound technical knowledge and are more likely to get results. Low skilled workers, women and those whose first language is not English are likely to benefit greatly from having an agent.
"Agents are already seen in negotiations over chief executives' remuneration," she says. "More mid-level employees will start to hire professionals as their mouthpiece in complicated employment contract negotiations.”
An agent's role can be either hands-on or advice only, but Graham says the key is knowing the available alternatives.
"If you have a strong and aggressive personality then perhaps negotiating yourself will work," she says. "However, doing your own dirty work can give the impression that you don't trust your employer."
The chief executive of the Australian Human Resources Institute, Jo Mithen, says there is little detail in the legislation about the rights and responsibilities of an agent.
"They will need a clearly defined role and structure," she says. "I'd hate to see the growth of people being churned by shonky operators."
In a recent survey of 800 AHRI members, 86 per cent supported the idea of an individual being entitled to appoint a third party to represent them.
“In the short term, human resource professionals might come under pressure to deal with a number of requests from agents wanting different things," Mithen says. "This would be a potential headache for the HR department".
It is hard to imagine those being offered a take-it-or-leave-it position being able to bargain, even with the best representative doing the talking, Mithen says.
Under the changes, unions will still be able to negotiate, but Ridout says: "Unions will need to change their approach by taking on individual cases rather than their ideologically driven collective approach.”
The Association of Professional Engineers Scientists and Managers Australia already takes this approach, offering members assistance in employment contract negotiations. But chief executive John Vines is concerned about the growing number of under-resourced individuals trying to bargain alone.
"Unless the skills shortage continues, which is unlikely, workers will not have the necessary power to bargain individual pay and conditions," he says. "In the majority of cases, individuals prefer to be armed with the facts and do the negotiating themselves."
A specialist industrial relations partner at legal firm Holding Redlich, Charles Power, says the proposed workplace laws will make it harder for trade unions to represent employees in negotiations.
He says the laws will prompt an industry for former HR managers and union officials offering their services as bargaining agents. However, in most cases the costs for low-wage employees to engage their lawyer or accountant as agents would be prohibitive.
The legislation has scant detail on the role and responsibilities of agents but the government is expected to stipulate, in regulations, requirements such as good conduct and behaviour as prerequisites for appointment as bargaining agents.
"These might exclude union officials who have been involved in illegal industrial action," Power says.
ACTU policy director George Wright says the idea of bargaining agents is a "furphy".
"The idea that you can correct the imbalance in market power by having an expert speak on your behalf is ridiculous, especially for take-it-or leave it job offers," he says.
Wright says there are already many consultants helping business "put everyone on Australian Workplace Agreements" and this is the more likely outcome of the new laws.
Wright says that many employers don't like employees seeking to alter employment conditions. "Telstra offers individual contracts where terms of employment must not be altered," says Wright. "That is not in the spirit of negotiation."
The head of the department of management at Monash University, Julian Teicher, thinks unions should assume the role of bargaining agents. He says an agent could have an impact on the power relationship between employer and employee.
However, Holding Redlich's Power says employee agents would be constrained in collective bargaining because if an employer receives a request to "meet and confer" it is only required to meet the agent during the week immediately before the day employees will vote on the agreement.
He says that if there is a dispute about whether such a request has been made, the employee's agent must ask the Employment Advocate to issue a certificate confirming the request has been made. "The advocate appears to have discretion as to whether or not to issue such a certificate - all within seven days," he says.
Teicher says the proposed legislation will lead to growth in common law agreements rather than AWAs and professional agents will be essential in this new "legalistic environment".
While mum and dad might have saved some money on the new Honda, they are not the best people to negotiate your employment conditions because there are too many variables and industry standards about remuneration and conditions," he says.
This data will become less accessible as the new workplace system evolves and is shrouded by confidentiality: common law employment contracts will "lock up" information about pay and conditions.
"It will be difficult to gauge industry standards," he says. "Bargaining agents can garner this information from an informal network where a dialogue about confidential employment minima can be disclosed."
The director of recruitment company Manpower Australia, Sheryle Moon, says workplace experts should be certified and qualified.
"They not only need to understand the legislation but should be familiar with the nuances of negotiation as well," she says.
"People go to an accountant for expert taxation advice. It is highly likely that advice on employment conditions would be of equal importance. Employers might also consider outsourcing their negotiation obligations and the agreement-making phase to an external firm in order to alleviate the pressure on HR managers."
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