| Volume 23 Number 2 | June 1998 |
Special Symposium:
Contemporary Issues in Industrial Relations - Some American Answers
Special Symposium: Contemporary Issues in Industrial Relations - Some American Answers |
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Professor Dannin defines the symposium as "cutting edge U.S. research on issues of contemporary concern to New Zealanders", and introduces the various contributors to this edition of the Journal.
Professor Bingham's article surveys the salient legal developments regarding nonunion employment arbitration in the United States and briefly examines the ongoing policy debate and resulting self-regulation efforts among members of the dispute resolution community. It also summarises the author's empirical research regarding the relative success of employers and employees in employment arbitration awards decided before the recent initiation of efforts at self-regulation. The study finds that repeat-player employers do better in employment arbitration than employers engaged in only one arbitration in the period sampled and that employers do better when they are arbitrating claims pursuant to a unilaterally imposed contract created by a personnel manual.
As increasing numbers of employers and governments in industrialised nations hasten to "Americanize" their economic policies, labour laws, and union-avoidance strategies, it has become critical for unions in other countries to learn what they can from the organizing experience of the U.S. labour movement. Most research on factors contributing to U.S. organising decline has focused on the role played by factors external to the labour movement such as global competition, de-industrialisation, changes in workforce demographics, new work systems, deregulation, aggressive employer opposition, and weak and poorly enforced labour laws. U.S. unions, however, have greatly contributed to their own decline by having failed to aggressively organise when they had the power and opportunity in the 1950s and 1960s, and then continuing to fail to commit the resources and strategic initiatives necessary to win the more hostile organising climate of the 1970s and 1980s. Ms Bronfenbrenner's research over the last ten years has shown that unions can significantly improve their organising sucess, even in the most hostile organising climate, when they rely on a comprehensive union building strategy. These findings have important implications, not just for the U.S. labour movement, but for unions in other nations as well, as they struggle to regain lost membership and power.
Virtual organisations replace traditional, unitary business forms with contractual relationships. They allow management to shift costs to third parties and, therefore, give management maximum flexibility in response to market changes. However, Ms Dickerson argues that management can control the virtual organisation only through dominance over suppliers and workers. That, in turn, may have suboptimal results, not only in each relationship, but also in society at large. Management that exercises power can, and has incentive to, act opportunistically. When suppliers and workers respond in a similar manner, this can lead to a mass defection towards a new commercial norm that condones opportunism.
A variety of legal doctrines assist employers in the United States to obtain control over the inventions, knowledge, and other creative products of their employees. These doctrines are found in the laws of patent, trade secrets, non-competition agreements, and copyright. In all four areas, ownership of employee creative products is determined by multifactor factual inquiries involving the nature of the employment relationship and the circumstances surrounding the creation of the product. Ms Fisk argues that these multifactor inquiries pursue flexibility at the expense of predictability. The expense and unpredictability of litigation lead employers whenever possible to determine rights by contract and, when disputes do arise, it is likely that parties resolve them informally. Yet concern about the risk of employer overreaching in drafting such contracts has prompted courts and legislatures to create rules limiting their enforceability. Ms Fisk concludes that this reintroduces the problem of uncertainty that the contracts were supposed to avoid.
Professor Gross examines historical views as to the purposes of a national labour policy and argues that in a just society there would be no "throw-away people" and, in a democracy in particular, all individuals must matter if they are to live fully human lives. Given this, the sole or even primary purpose of a national labour policy should not be to increase worker productivity and employer competitiveness, but to achieve human dignity, solidarity, participation and justice for all parties at the workplace and in their larger communities. Professor Gross concludes that the great labour battle of our day is whether labour policies which foster democratic, humane, and just workplaces will ever be realised in a world now "bedazzled" by market values.
Professor Key outlines three issues that have arisen under Title I of the Americans with Disabilities Act of 1990 (the "ADA"), and which have sparked heated debate among courts, litigants, and the Equal Employment Opportunity Commission. These issues have resulted in confusion and uncertainty as to the proper application of the ADA. The first involves the effect of corrective measures, such as medication or assistive devices, on the determination of whether a particular impairment substantially limits a major life activity and, thus, whether a person is considered to be protected by the ADA. The second pertains to the question of whether a person who is HIV-positive, but asymptomatic, nevertheless has a disability. The final issue addressed is the effect, if any, of an application for or receipt of Social Security disability benefits on a person's ability to subsequently bring an action under the ADA. To receive Social Security disability benefits, a person must demonstrate total inability to perform all the essential functions of a particular job. Associate Professor Key concludes the United States Congress had the means to avoid these controversies when the ADA was initially enacted and should have done so at the time.
Associate Professor Kim presents empirical evidence directly contradicting a crucial assumption made by Richard Epstein and other defenders of the at-will rule in employment: the assumption that employers and employees understand the basic legal rules governing the employment relationship. Based on this assumption, Epstein argues that silence in the face of the at-will default rule is evidence that both employers and employees prefer at-will arrangements. Associate Professor Kim's study challenges that assumption by documenting widespread misunderstanding of the at-will rule in a survey of hundreds of American workers. These workers consistently overestimated their rights, believing that they were legally protected against arbitrary and unjust discharges when in fact they can be dismissed at will. Associate Professor Kim concludes that this information failure casts doubt on the ability of workers to protect their interests in the bargaining process, and undermines the traditional economic argument that the prevalence of at-will contracts in the labour market represents an efficient outcome.
Efficient provision of public services entails minimisation of cost for a given level of service output. The greater part of cost in services is usually due to labour. One of trade unionism's basic aims is said to be the elimination of rivalry among workers for jobs and pay, sometimes described as "taking labour out of competition," to reduce downward pressure on wages. Mr Sawicky argues that the fragmentation of workplaces through out-sourcing, contracting out, down-sizing, or otherwise seems to shift the competitive balance of power further away from labour, as smaller contingents of workers are obliged to deal with no less omnipotent managements. Thus privatisation, in the form of contracting out for services by government, is naturally viewed as a threat to trade unionism and labour standards in general. Conversely, the interests of labour have been sen as inimical to efficiency and to the interests of programme beneficiaries. Mr Sawicky offers reasons why the conventional conflict of interests may be exaggerated, if not mis-characterised altogether, with particular reference to social services. He suggests how unionised public employees can and must become a force for good government.
November 1997 - March 1998
Erling Rasmussen and Ian McIntosh
A round-up of recent New Zealand industrial relations events from November 1997 to March 1998.
Information on recent, non-indexed NZJIR issues can be found by clicking on the appropriate links below.
Volume 23, Number 2 - June 1998
Volume 23, Number 3 - October 1998
Volume 24, Number 1 - February 1999
Volume 24, Number 2 - June 1999
Volume 24, Number 3 - October 1999
Volume 25, Number 1 - February 2000
Volume 25, Number 2 - June 2000
Volume 25, Number 3 - October 2000
Volume 26, Number 1 - February 2001
Volume 26, Number 2 - June 2001
Volume 26, Number 3 - October 2001
Volume 27, Number 1- February 2002
Volume 27, Number 2- June 2002
Volume 27, Number 3 - October 2002
Volume 28, Number 1- February 2003
Volume 28, Number 2- June 2003
Volume 28, Number 3- October 2003
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