New employee representation. Legal developments and New Zealand unions

Date01 April 2004
Published date01 April 2004
DOIhttps://doi.org/10.1108/01425450410511098
Pages203-223
AuthorMichael Barry,Robyn May
Subject MatterHR & organizational behaviour
New employee representation
Legal developments and
New Zealand unions
Michael Barry
Griffith University, Gold Coast, Queensland, Australia, and
Robyn May
Victoria University of Wellington, Wellington, New Zealand
Keywords Employee representatives, Trade unions, Legislation, New Zealand
Abstract Legislative protections supporting New Zealand’s compulsory arbitration system made
unions a vital part of industrial relations from 1894 to 1991. Following a dramatic shift to a more
deregulated labour market, the union movement suffered a sharp decline in influence and
membership during the 1990s. In October 2000 the Labour-Alliance Coalition that formed
government in 1999 introduced its Employment Relations Act that includes new protections for
registered trade unions. The early impact of the legislation has been to promote the registration of
a plethora of new unions. However, the new unions formed since the introduction of the Act
represent very few workers and have narrow interests. Although they exist formally as unions,
these organisations are more accurately alternative forms of employee representation that exist to
facilitate enterprise bargaining and, in some instances, to allow employers to frustrate the activities
of larger, established unions.
Introduction
During the debate surrounding the repeal of the Employment Contracts Act
(ECA) and the introduction of the Employment Relations Act (ERA) in 2000, New
Zealand’s employer and business groups criticised the new Labour Government
for drafting provisions that offered trade unions many new protections,
including extensive access to the workplace and a new requirement for
employers to bargain with unions in “good faith”. The critics of the ERA argued
that the legislation would return unions to the position of power they had
enjoyed prior to the advent of the employment contracts era, from 1991-2000.
During the long era of compulsory arbitration, from 1894-1991, New Zealand
unions benefited from a range of legal protections that included exclusive
coverage of defined categories of employees, compulsory union membership,
and guaranteed bargaining rights (Holt, 1986; Woods, 1963). These protections,
it is argued, created a union movement that was heavily centralised, poorly
organised at the workplace and dependent on the arbitration system for its
continued influence (Nolan and Walsh, 1994; Barry and Walsh, 2002).
For unions, the problem of state dependence became evident immediately
after a conservative government dismantled the arbitration system when it
introduced a new legislative framework for industrial relations in 1991. Under
the ECA, union membership and density plummeted, the latter falling from 42
The Emerald Research Register for this journal is available at The current issue and full text archive of this journal is available at
www.emeraldinsight.com/researchregister www.emeraldinsight.com/0142-5455.htm
New employee
representation
203
Received March 2003
Revised July 2003
Accepted August 2003
Employee Relations
Vol. 26 No. 2, 2004
pp. 203-223
qEmerald Group Publishing Limited
0142-5455
DOI 10.1108/01425450410511098
per cent in 1991 to 20 per cent in 1996 (Crawford et al., 1998). By 1999, union
density had reached a low of 17 per cent of the labour force. In the decade from
1989, total union membership almost halved, falling from 603,000 to 338,000.
What the employer groups that opposed the ERA feared was that the new
legislative protections might enable those unions that survived the
employment contracts era to reclaim the privileges they enjoyed during the
compulsory arbitration era.
In the short period since the introduction of the ERA there have been a
remarkable number of new organisations registered as unions. Yet, despite the
rhetoric and fears of the employer groups, it is clear that the legislation has not
produced any dramatic surge in unionisation. Rather, what is characteristic
about most new unions is their extremely small membership and limited range
of interests and activities. This paper seeks to examine the structure and
activities of the various types of new unions and to understand the motives for
their creation. The contention of the paper is that these new forms of employee
representation frustrate as much as they facilitate the objectives of the ERA,
which include the promotion of independent forms of representation that might
enable employees to bargain collectively to redress power inequalities inherent
in employment relationships.
This paper commences with an analysis of recent developments in employee
representation in order to contexualise the experience of New Zealand’s new
unions. The paper then discusses the research methodology and the overall
composition of new unions. Following this, the paper analyses the formation
and behaviour of new unions to assess their legitimacy and to determine their
strategic bargaining objectives. Before concluding, the paper compares New
Zealand’s new unions with alternative forms of employee representation that
have emerged in other jurisdictions to circumvent statutory recognition
procedures and to frustrate the activities of established unions.
Developments in employee representation
In New Zealand and Australia trade unions prospered for much of their history
under centralised bargaining structures and strong statutory protections.
According to conventional wisdom, these features of those countries’ unique
systems of compulsory arbitration gave unions little reason to develop a strong
presence at the workplace and thus made them dependent on the protections
offered by the state (Howard, 1977; Scherer, 1987; Woods, 1963; Holt, 1986;
Hince, 1993). As conservative governments systematically removed statutory
union protections, the focus of union strategy has shifted from traditional
servicing to the development of a new approach based on organising (Cooper,
2001; Oxenbridge, 2002; Griffin et al., 2002). Thus, while pervasive regulation
once guaranteed their continued development, in recent years antipodean
unions have grasped the need to develop responses to the same challenges that
confront their contemporaries overseas (Bacon and Storey, 1996; Peetz, 1998;
Carter, 2000).
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