Working to rules: Union head shares job-law concerns

By JIM EAGLES


Small business operators may be surprised to know that the head of the country's largest union sympathises with the fact that many feel nervous about taking on staff and getting caught up in the morass of employment law.

Andrew Little, secretary of the giant Engineering, Printing and Manufacturing Union, believes the legalistic approach now taken to industrial relations - and especially personal grievance cases - is a hugely retrograde step.

It is an issue he feels the union movement should take a lead on. "We've got to delegalise it and give both management and workers, through unions, greater scope to find solutions."

Little said he was not at all surprised that "a lot of employers take fright when it comes to having to manage an employee for misconduct or not making the grade because it has become such a difficult area".

Similarly, he said, "if small businesses feel anxiety about what they might be letting themselves in for if they employ someone I can understand it".

But, Little said, the problem was not caused by unreasonable unions but was a legacy of the legalistic approach introduced by the Employment Contracts Act.

"The whole area has become hugely tortured and I don't think that's good for anyone."

Little has particular knowledge of the problem for small businesses because a few years ago he actually represented an employer, a friend who owned a cafe, in a case he describes as "a classic try-on".

This involved a student who had worked for a time at the cafe then left, collected her holiday pay and went off on her OE. "She suddenly turned up 3 1/2 months later wanting to work and took a personal grievance case.

"The employer had done everything properly but she tried it on with the help of her boyfriend, who was a law student."

As is all too typical in personal-grievance cases Little advised the cafe owner to offer to make a small payment - "I think we went up to $150" - to make it go away. "She refused to deal and said she was going to carry it on but she never did."

In that case the employer was particularly lucky because Little did not charge for his services. "But I can understand the problems facing most small employers because they would probably have to pay $700-$800 just to have a lawyer look at it."

Little said that under the old Labour Relations Act that sort of thing would not have happened because lawyers were barred from taking part and such issues were dealt with by a pragmatic bunch of mediators, union officials and employer advocates who were "focused on getting a practical solution".

In addition unions used to have the view that "they wouldn't tolerate the try-on. . . The attitude was if it was a fair cop then it was a fair cop."

But today, he said, with lawyers involved and the process becoming increasingly legalistic, union members were often unwilling to accept that advice.

"One of the reasons this has happened is that the ECA extended jurisdiction to cover everyone with an employment contract, including people who could afford lawyers who looked at every T and every I and that ended up distorting the whole process.

"A lot of workers then saw, 'Oh, some guy got $50,000 for a personal grievance, I wouldn't mind $50,000,' and they started becoming more litigious.

"It has made things harder for unions because if we say, 'You haven't got much of a case here,' the members can go off and get someone else to bring an action on their behalf."

Unfortunately, he said, industrial relations law was now a lucrative industry with a good many lawyers and a huge array of so-called lay advocates making a fine living out of it.

In fact "production-line lay advocates" were now "the biggest fear small businesses have".

"Someone walks in off the street wanting to bring a personal grievance and they say pay me $50 and we'll share the spoils 50-50.

"They know pretty much what they can get - a minimum of $1000 to $2000 - because the employer would have to pay more than that in legal costs. So they can expect to pocket at least $500 just for writing a letter."

Little said he was aware of one such lay advocate a few years ago who claimed to be processing - "he described it as processing" - 100 to 150 grievances a week. "At $500 a time that's good money!"

That state of affairs was not good for anyone, including workers, because it could lead to workplaces not being properly managed.

"The people on the ground know what's going on and they aren't going to be very happy if the boss can't deal with someone who's letting the team down."

Unfortunately solutions were not easy to come up with but he said the union movement should try.

"This might be a bit provocative but I'm going to raise it with our union and the CTU that I think the union movement should take a lead on this whole personal-grievance jurisdiction."

One possibility, he said, was that workers and employers might be allowed to contract out of the personal-grievance provisions in the act. They might, for instance, agree to operate under a different regime which would be more pragmatic and less legalistic.

"The present system isn't working for anyone, so we've got to explore alternatives.

"What we need is what I had hoped might come from the introduction of the good faith concept: that we would develop a culture of deciding things on the basis of common sense which is what it should be about."