A team of academics is calling for a change to voluntary unionism. Instead of the present non-union default for workers, common in many countries, they would like to see a union default, and they have the support of some of the legal fraternity.
Professor Mark Harcourt from Waikato University Management School and former Minister of Labour Professor Margaret Wilson from Te Piringa Faculty of Law are two of the four academics investigating how a union default might work through legal regulation in a study funded by the New Zealand Law Foundation. The other two researchers are Nisha Novell a law student from Victoria University of Wellington and Dr Gregor Gall from the University of Glasgow.
In an article entitled “Implementation of a union default in New Zealand law as an antidote to rising income inequality” published in the March 2019 issue of the Employment Law Bulletin (LexisNexis), the team interviewed 42 employment law experts, 23 practising lawyers, mainly law firm partners, 11 legal officers, lawyers or equivalent in unions, five employment law or industrial relations academics, and three Employment Relations Authority (ERA) members.
Thirty (71%) of the interviewees liked the idea of a union default, 12 (29%) did not.
Professor Harcourt says for a long time there has been a belief that the rise in income inequality can be partly attributed to the decline in unions and collective bargaining, and research from other countries bears this out.
“We’ve worked out that nearly half of New Zealand workers want union membership but most work for a non-union employer with no union onsite they can join. Establishing and sustaining a union presence on sites is difficult and costly, and harder still if the employer isn’t supportive.”
He is proposing a new policy of default unionism, enacted in law, would help address rising income inequality, declining union membership and collective bargaining, but it was important to discover what lawyers and others working in the field thought about the idea and how it might be implemented.
Among the law practitioners interviewed, those who supported a union default said the most acceptable default would apply to new employees at sites that already had a collective agreement and union representation. At non-union sites, unions would recruit members and then approach the employer to negotiate a collective agreement. All employees covered by a new agreement would then be automatically enrolled as union members, but with the option to leave the union afterwards. If there were problems negotiating a new agreement within a set time-frame of, say three or four months, the Employment Relations Authority could arbitrate one and infer coverage from the composition of members thus far recruited, or some other criterion.
It was important to the legal experts interviewed that opting out of a union should be a simple process, but not all agreed on the time they should spend in a union before deciding not to associate. Some favoured 30 days, which would give new employees time to learn of any value the union might bring, while others said the choice to join or not should be from the start of employment. Another option was 90 days, if there were a trial period, and some argued for ‘no fees’ during any compulsory membership.
Despite widespread de-unionisation, surveys show roughly half of all workers across richer Anglophone countries, such as Australia and New Zealand, want to be union members but a majority cannot exercise their preference because they belong to a non-union workplace.
“At the moment inertia keeps people out of unions, but with a union default, inertia would be seen as an advantage,” Professor Harcourt says. “Moreover, a union default would become a perceived social norm -- what people deem to be the most prevalent or acceptable behaviour in a group situation, and which most people comply with.”
In the past, recruitment of members was less of an issue. Unions, once established, could negotiate closed-shop clauses in their collective agreements. Such a clause meant an employer agreed to employ only workers who were already members of a particular union or had agreed to join once employed.
In the study, opponents to a default scheme comprised three groups: those with concerns about the freedom not to associate, those who believed unions were generally unnecessary, and those who believed unions were disruptive. Some had concerns about implementation and about people being pressured to join and wondered how workers who wanted to negotiate their own agreements might fare. Even those who did not like the idea of a union default agreed it would increase membership and strengthen union bargaining power.
Most interviewees believed that regulation of a union default would not require radical changes to the Employment Relations Act or institutions that administer it.
Professor Harcourt says a union default would not automatically facilitate union effectiveness, but a larger, stronger union would help diminish employer resistance to union requests or demands.
“I’m aware people might say this is a backdoor route to socialism, an affront to individual liberty,” says Professor Harcourt. “But people would be able to opt out if they chose to. It’s not a closed shop we’re suggesting.”