Statutory Union Recognition in North America and the UK: Lessons for Australia?

By Chris Briggs

Freedom of association, the right of employees to freely choose union representation and collective bargaining, is a human right under international law.

Across the OECD, one of the key components of bargaining frameworks is legal systems underpinning the right of employees to freely choose to combine and bargain without employer interference. Australia, by contrast, has a ¡®voluntary¡¯ system allowing both employers and employees to pursue their preferred bargaining arrangement ¨C individual, non©\union or collective

bargaining. Whilst in theory this maximises ¡®choice¡¯, in practice even if an overwhelming majority of employees prefer collective bargaining, employers can and do refuse to respect their choice and use tactics widely prohibited in other bargaining systems to induce or coerce their employees into signing individual agreements. Employers can legally discriminate against union members, refuse to bargain with employee representatives, offer jobs contingent on signing individual agreements and lockout employees to coerce them into signing non-union agreements. Consequently, the Workplace Relations Act (WRA) has repeatedly been named in breach of international

conventions on freedom of association.

In that context, a policy debate is building inside the union movement as to whether Australia should enact a system of statutory union recognition (SUR) as exist in most other English-speaking nations with decentralised bargaining systems. Under SUR, union recognition is legally mandated where an independent public institution determines there is majority support for collective bargaining. Employers are legally required to bargain with legitimate union representatives. The process is designed to allow employees a genuine choice as to whether they wish to be represented by a union. The SUR systems of the United States, Canada and the United Kingdom are examined here as a contribution to this debate.

The analysis is framed by three questions.

1. What are the lessons on how best to construct a SUR system?

2. What are the contextual factors which might mediate the impact of SUR?

3. What are the common structural properties of SUR ¨C its inherent strengths and limitations?

(Workplace Research Centre, University of Sydney)