Policies promoting enterprise bargaining in Australia are often associated with collective bargaining. However, collective bargaining does not accurately describe a range of enterprise bargaining ...activity and some Australian researchers have instead used the term collective agreement-making. The Fair Work Act 2009 signifies a substantial consolidation of enterprise bargaining practices by instituting a single collective agreement-making process, which this article examines through formalistic legal analysis. The analysis explores the ways enterprise bargaining practices under the Fair Work Act are allowed to diverge from collective bargaining. This article contributes to our understanding of collective agreement-making processes by explicating two important dimensions of variation: how employees are represented and how terms of agreement are derived. Whether collective agreement-making under the Fair Work Act's procedures aligns with collective bargaining is found to depend upon the choices of individual participants, particularly employees' choices between five broad representative forms and bargaining representatives' conduct, especially the employer's. In extreme cases, there may not be any employee representation, and employers may exploit the legal meaning of 'agreement' to avoid meaningful negotiation and instead pursue employee acquiescence in a voting procedure.
This Article critically evaluates the recent trends in Italian industrial relations in order to highlight the clash between Italian constitutional principles and the autonomous development of ...self-regulation as for the relationship between representation, conflict and collective agreement. By conducting a comparative analysis with the Swedish model, the article argues that the constitutional principles of the Italian system of industrial relations conceive the collective agreement as a contingent element in the relationship between representation and conflict, whereas the Fiat case (2010) and the latest interconfederal agreements (2013 and 2014) place it at the centre of such a relationship. The Swedish model, instead, regards the collective agreement as a central mechanism through which the signatory trade union trades social peace with privileged rights of representation in the workplace. Through the prism of the Swedish model, the article suggests that Italian industrial relations are turning towards a restrictive system centred on the collective agreement, in which however the obligation of social peace is not exchanged with any strengthening of union representation in the workplace.
The Labour Relations Act 66 of 1995 unequivocally promotes the policy choice of majoritarianism, in furtherance of orderly collective bargaining and the democratisation of the workplace. The ...majoritarian model aims to minimise the proliferation of trade unions in a single workplace and to encourage the system of a representative trade union. Section 18(1) of the Labour Relations Act enables majority unions to enter into collective agreements setting thresholds of representivity for the granting of access, stop-order and trade-union leave rights to minority unions. In furtherance of the majoritarian framework, collective agreements concluded between majority unions and employers can be extended to non-parties to the agreement in terms of section 23(1)(d) of the Labour Relations Act provided specified requirements are satisfied. In Police & Prisons Civil Rights Union v Ledwaba 2013 11 BLLR 1137 (LC) (POPCRU) the Labour Court was required to consider if the collective agreements concluded between the employer and the majority union could be relied upon to prohibit the minority union from securing organisational rights. In so doing, the Labour Court had to reconcile the fundamental principle of freedom of association and the right to fair labour practices (to organise and engage in unfettered collective bargaining) within the context of the majoritarian framework. The Labour Court in POPCRU held that the collective agreement concluded with the majority union must have preference over the organisational rights of minority unions, in keeping with the principle of collective bargaining hierarchy and the legislative framework. This case note argues that, while the finding of the labour court in POPCRU is correct on the facts and is in keeping with the principle of majoritarianism, the legislative model may no longer be suitable within the context of the current socioeconomic and political landscape. Strike violence, loss of confidence in existing bargaining structures, and the alienation of vulnerable employees from majority unions has resulted in minority unions taking up the cudgels of frustrated and disempowered employees, as witnessed in the Marikana experience. The note suggests that in the light of the changing dynamics of the collective bargaining environment, it may be time to revisit the majoritarian model.
Employees appear as relatively passive figures in most analyses of the Fair Work Act's collective agreement-making process because official bargaining representatives negotiating in formal meetings ...have been the focus of attention. This article re-examines how the Act structures employee participation in the agreement-making process, with a particular focus on the degree or depth of employee input and influence over the agreement's terms. Drawing on Flanders' 'political view of collective bargaining', the formalistic legal analysis indicates that the Act facilitates different kinds of employee input and influence at different stages of the agreement-making process. The article concludes that employee input through a yes/no vote to be bound by an employer's proposed agreement is prioritised the Act. While the legitimacy of an agreement is premised on this level of employee input, the Act allows employee influence over the terms and content of an agreement to vary considerably between cases.
Although Malaysian laws generally do not explicitly discriminate against women in employment, such discrimination does occur. The Federal Constitution, being the supreme law of Malaysia, provides a ...guarantee of equality in employment. However, Article 8, which prohibits gender discrimination in employment, refers to public services. In the case described here a stewardess worked for a private airline and the courts determined that constitutional protection did not extend to her. It would appear that the Malaysian court's strict interpretation of Article 8 renders valid the term of a collective employment agreement requiring a stewardess to resign if she becomes pregnant. This paper examines the interplay between an employment contract, a collective agreement, employment law and the constitutional rights of Malaysian citizens.
Dialogue is considered to be the opposite of rhetoric. This is true, especially when it comes to social dialogue, meant to prevent conflicts and to ensure social peace. But is social peace a goal? ...And which are its particularities when it comes to public servants? The paper aims to analyze the participation of public servants to social dialogue and their right to collective bargaining, under Romanian law. There are taken into account, in a comparative context, the success of collective bargaining, which is the conclusion of collective agreements, and the failure of collective bargaining, which leads to the possibility of strike. The paper contains a number of de lege ferenda proposals, meant to create a special regulation of social dialogue in case of public servants, and to eliminate the application of common law in this regard.
Due to the late start of industrialization and development of a working class and democratization in Turkey, all the labour and democratic rights gained through class struggle elsewhere in Europe ...were introduced in Turkey by the state. This saw the detailed framework of Turkish industrial relations being defined by law, with trade unions not challenging the limits to enhance their rights. Previous collective labour acts had been criticized for decades as a heritage of the 1980 military coup. Following amendments to the 1982 Constitution in 2010, a new collective labour act, the Trade Union and Collective Agreement Act (TUCAA), was adopted in 2012. In this article, the Trade Union and Collective Agreement Act will be examined from the perspective of the triad of the right to organize, the right to bargain collectively, and the right to strike, with the main changes also being reviewed in a general comparison with the previous acts. Reprinted by permission of Sage Publications Ltd.
The presented study clarifies in detail the questions of the collective agreement law in Slovakia, where the author pays a special attention to following essential areas: I. Historical background of ...the collective agreement law on the territory of Slovakia, II. Constitutional basis of the collective law and its basic characteristics, III. Collective agreements and IV. Collective disputes.
Zusammenfassung
Die Politik strebt eine Stärkung der Tarifautonomie durch eine Stärkung der Tarifbindung an. Die vorliegende Untersuchung zeigt anhand einer Analyse von Ergänzungs- und ...Haustarifverträgen in der Metall- und Elektro-Industrie, dass es unterschiedliche Formen von Tarifbindung gibt, die mit einer unterschiedlichen tariflichen Regelungsbreite und mit unterschiedlichen Kostenniveaus verbunden sind. So kam es durch Ergänzungstarifverträge zu Ersparnissen von durchschnittlich 5,8 %, wobei die Spanne der monetären Abweichung vom Branchentarifvertrag zwischen Mehrkosten in Höhe von 8,6 % bis hin zu Einsparungen in einem Volumen von 33,9 % lag. Andererseits gibt es tarifungebundene Betriebe, die sich eng am Branchentarifvertrag orientieren, möglicherweise sogar enger als Betriebe, die über Ergänzungstarifverträge vom Branchentarifvertrag abweichen. Wenn die Politik Tarifbindung stärken will, sollte sie auf die gelebte Tarifbindungspraxis Rücksicht nehmen.
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