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DR: INDUSTRIAL DISPUTE RESOLUTION ASSIGNMENT : Dianne Allen .... p. 1
INDUSTRIAL DISPUTE RESOLUTION: ISSUES, TRENDS AND IMPLICATIONS
INDUSTRIAL DISPUTE RESOLUTION: ISSUES, TRENDS AND IMPLICATIONS
Dianne Allen, October 1997
Contents INDUSTRIAL DISPUTE RESOLUTION: ISSUES, TRENDS AND IMPLICATIONS .......... 1
ABSTRACT ............................................................................................................................... 4
1. WHAT DOES THE STUDY OF DISPUTES AND DISPUTE RESOLUTION HAVE TO
SAY TO THE CONTEXT OF RESOLVING INDUSTRIAL DISPUTES?................... 4
1.1 In looking at the causes of dispute as applied to the workplace context.................. 5
The Wider Social Construct: .......................................................................................... 6
1.2 Methods of Resolution ............................................................................................. 9
TABLE 1: .......................................................................................................... 11
1.3 Implications for the development of interpersonal and interactional skills ........... 12
1.3.1 Equipping Staff to Handle Disputes Effectively in Local Government .. 12
1.3.2 Issues in Training in Negotiation Skills for an Organisational Setting ... 12
1.3.3 Facilitation: The Use of Mediation Techniques & Processes in Resolving
Differences in Group Decision-making ................................................ 13
1.3.4 Learning from the Experience of Disputes at Shellharbour City Council
............................................................................................................... 13
1.3.5 Lessons to be Learned from the Experience of Disputes in the
Construction Industry ............................................................................ 13
1.3.6 Nature of Conflict & its Role in Society ................................................. 14
1.3.7 Summary Remarks ................................................................................... 14
2. WHAT PREDICTORS ARE THERE FOR THE CONDUCT OF INDUSTRIAL
RELATIONS IN THE FORESEEABLE FUTURE? .................................................... 16
2.1 The Theme of Change: ........................................................................................... 16
2.2 Change and Conflict ............................................................................................... 17
2.3 The "Paradigm Shift" .............................................................................................. 18
2.4 Legislative Change of The Regulatory Regime in Australia .................................. 20
2.4.1 Regulatory Changes and the Industrial Relations Totality ...................... 22
2.4.2 Implications of this Regulatory Shift for Management ........................... 24
2.4.3 Implications of this Regulatory Shift for Unions .................................... 25
2.4.4 Implications of this Regulatory Shift for Employees .............................. 28
3.WHAT PREPARATIONS NEED TO BE MADE TO EQUIP ORGANISATIONS -
MANAGEMENT AND STAFF (AND ANY OTHER STAKEHOLDERS) - FOR
THIS FUTURE? ........................................................................................................... 29
3.1 The Current Skills Base for Enterprise Bargaining ................................................ 29
3.2 Negotiation in the Enterprise Bargaining Context ................................................. 33
3.3 Other Aspects of the Bargaining Context ............................................................... 35
3.4 Other Aspects of Workplace Relationships ............................................................ 37
4. CONCLUDING REMARKS ................................................................................................ 38
BIBLIOGRAPHY: .................................................................................................................... 40
SECTION 1: 1.1 ........................................................................................................... 40
DR: INDUSTRIAL DISPUTE RESOLUTION ASSIGNMENT : Dianne Allen .... p. 2
INDUSTRIAL DISPUTE RESOLUTION: ISSUES, TRENDS AND IMPLICATIONS
1.2 ................................................................................................................................. 41
1.3 ................................................................................................................................. 42
SECTION 2: 2.1 ........................................................................................................... 42
2.2 ................................................................................................................................. 43
2.3 ................................................................................................................................. 43
2.4 ................................................................................................................................. 43
SECTION 3: 3.1 ........................................................................................................... 44
NOTE 1: HAVING A CULTURAL MILIEU FOR PRACTISING NEGOTIATION
SKILLS ............................................................................................................. 44
3.2 ................................................................................................................................. 45
3.3 ................................................................................................................................. 45
3.4 ................................................................................................................................. 46
ATTACHMENTS .................................................................................................................... 47
ATTACHMENT 1: ABSTRACTS OF ASSIGNMENTS FOR MDR STUDIES,
1996/7: .............................................................................................................. 47
1. EQUIPPING STAFF TO HANDLE DISPUTES EFFECTIVELY IN LOCAL
GOVERNMENT ................................................................................... 47
2. ISSUES IN TRAINING IN NEGOTIATION SKILLS FOR AN
ORGANISATIONAL SETTING .......................................................... 47
3. FACILITATION: THE USE OF MEDIATION TECHNIQUES &
PROCESSES IN RESOLVING DIFFERENCES IN GROUP
DECISION-MAKING ........................................................................... 48
4. LEARNING FROM THE EXPERIENCE OF DISPUTES AT
SHELLHARBOUR CITY COUNCIL................................................... 49
5. LESSONS TO BE LEARNED FROM THE EXPERIENCE OF DISPUTES
IN THE CONSTRUCTION INDUSTRY ............................................. 50
6. NATURE OF CONFLICT & ITS ROLE IN SOCIETY ............................... 50
ATTACHMENT 2: CONCLUSIONS OF ASSIGNMENTS FOR MDR 1996/7: ........ 51
1. EQUIPPING STAFF TO HANDLE DISPUTES EFFECTIVELY IN LOCAL
GOVERNMENT ................................................................................... 51
2. ISSUES IN TRAINING IN NEGOTIATION SKILLS FOR AN
ORGANISATIONAL SETTING .......................................................... 52
3. FACILITATION: THE USE OF MEDIATION TECHNIQUES &
PROCESSES IN RESOLVING DIFFERENCES IN GROUP
DECISION-MAKING ........................................................................... 54
4. LEARNING FROM THE EXPERIENCE OF DISPUTES AT
SHELLHARBOUR CITY COUNCIL................................................... 54
5. LESSONS TO BE LEARNED FROM THE EXPERIENCE OF DISPUTES
IN THE CONSTRUCTION INDUSTRY ............................................. 56
6. NATURE OF CONFLICT & ITS ROLE IN SOCIETY ............................... 57
ATTACHMENT 3: EXECUTIVE SUMMARY OF "EQUIPPING STAFF TO
HANDLE DISPUTES EFFECTIVELY IN LOCAL GOVERNMENT" .......... 58
ATTACHMENT 4: EXTRACTS FROM "EQUIPPING STAFF TO HANDLE
DISPUTES EFFECTIVELY IN LOCAL GOVERNMENT" ........................... 60
3.2THE DEVELOPMENT OF THE LOCAL GOVERNMENT (STATE)
AWARD, 1988-1996: ........................................................................... 60
3.8 EXPERIENCE OF THE PROCESS OF AWARD RESTRUCTURING AT
SHELLHARBOUR COUNCIL: ............................................................ 67
DR: INDUSTRIAL DISPUTE RESOLUTION ASSIGNMENT : Dianne Allen .... p. 3
INDUSTRIAL DISPUTE RESOLUTION: ISSUES, TRENDS AND IMPLICATIONS
ATTACHMENT 5: EXTRACT FROM ATTACHMENT TO "FACILITATION: THE
USE OF MEDIATION TECHNIQUES & PROCESSES IN RESOLVING
DIFFERENCES IN GROUP DECISION-MAKING": ..................................... 70
ATTACHMENT 6: EXTRACT FROM "LEARNING FROM THE EXPERIENCE OF
DISPUTES AT SHELLHARBOUR CITY COUNCIL" ................................... 74
ATTACHMENT 7: PRESENTATION ........................................................................ 75
PRESENTATION: A TOOL TO DEVELOP PERCEPTIONS WHEN ENGAGED IN
ENTERPRISE BARGAINING? ................................................................................... 76
IDEAS FOR PRESENTATION: .................................................................................. 76
OBJECTIVE OF PRESENTATION: ........................................................................... 76
1. Meta-cognitive Learning ............................................................................... 76
2. Fisher & Ury and "Perception" ..................................................................... 77
3. De Bono and Pattern Thinking and Perception ............................................ 77
4. Senge's System Thinking: ............................................................................. 78
5. What is Systems Thinking? .......................................................................... 78
6. Accidental Adversaries Archetype ............................................................... 79
7. Senge's view on systems thinking - team work............................................. 79
8. Senge's view on mental models [& Argyris on this and limitations of mental
models] .................................................................................................. 80
Bibliography: .................................................................................................... 80
DR: INDUSTRIAL DISPUTE RESOLUTION ASSIGNMENT : Dianne Allen .... p. 4
INDUSTRIAL DISPUTE RESOLUTION: ISSUES, TRENDS AND IMPLICATIONS
ABSTRACT
This assignment seeks to deal, in a preliminary way, with three basic questions:
1. what does the study of disputes and dispute resolution have to say to the context of
resolving industrial disputes?
2. what predictors are there for the conduct of industrial relations in the foreseeable
future?
3. what preparations need to be made to equip organisations - management and staff (and
any other associated stakeholders) - for this future?
In addressing the first question, the work of previous assignments is taken into account and
drawn on heavily.
For the second and third questions, more reliance is given to the work of other commentators,
as reflected in the current literature. As is to be expected, given the nature of "congruence"
of thinking, the material selected and extracted has first "found favour" with my
understanding of the field, and then extended that understanding. Should the reader be
interested, the material collected in the Attachments give the particulars of my experiences /
evaluation of "case" material in this field.
1. WHAT DOES THE STUDY OF DISPUTES AND DISPUTE RESOLUTION HAVE TO SAY TO THE CONTEXT OF RESOLVING INDUSTRIAL DISPUTES?
The study of disputes and dispute resolution has a number of strands:
* causes of disputes
* methods of resolution
* implications for the development of interpersonal and interactional skills
Industrial Disputes consist of two basic kinds:
* sharing the pie - pay and conditions - the employment contract (and, in the Australian
context: the employment contract in relation to the social contract)
* the working environment - the intangible components of contract and workplace
interactions - psychological, social satisfaction - job satisfaction and morale, group
effectiveness - productivity
Under this heading can be included:
raw OH&S - physical safety at work and subtle OH&S - mental safety, stress &
morale;
DR: INDUSTRIAL DISPUTE RESOLUTION ASSIGNMENT : Dianne Allen .... p. 5
INDUSTRIAL DISPUTE RESOLUTION: ISSUES, TRENDS AND IMPLICATIONS
raw EEO - nondiscriminatory practices and subtle EEO - interpersonal
relationship building and maintenance in a social context with more diversity
and greater levels of pluralism
1.1 In looking at the causes of dispute as applied to the workplace context
The workplace is but one of a number of contexts for dispute. This is so, because of the
nature of conflict and the sources of conflict, and the nature of the workplace and its
operations.
In regard to the nature of conflict, previous work has identified:
"Conflict is the interaction of interdependent people who perceive
incompatible goals and interference from each other in achieving those goals
(Hocker & Wilmot, 1985)." (Folger, et al, 1993, p.4)
From this, and the other definitions, there are five basic components of
conflict:
1. interdependence of people
2. interaction of people (communication) and the "dynamic"
potential of choices at decision nodes, and reinforcing feedback
-> escalation; or short-circuits -> de-escalation
3. incompatible goals: space/ territory; time/ sequence; access to
resources to meet needs (as per Maslow's hierarchy): economic,
natural, relationships, etc
4. interference/ competition
5. perception/ mental paradigms
We can see all five of these components operative in the workplace, whether at the individual
interaction level, or at the "organisational" level for the "them" and "us" syndrome between
labour and management.
In regard to the sources of conflict, previous work has identified:
"The most important feature of conflict is that it is based in interaction.
Conflicts are constituted and sustained by the behaviours of the parties
involved and their reactions to one another. ... We believe conflicts can best be
understood and managed by concentrating on specific behavioral patterns and
the forces shaping them. ... Communication looms large because of its
importance in shaping and maintaining the perceptions that guide conflict
behavior. ... We do not, however, agree with the old adage " most conflicts
are actually communication problems". The vast majority of conflicts would
not exist without some real difference of interest. This difference may be hard
DR: INDUSTRIAL DISPUTE RESOLUTION ASSIGNMENT : Dianne Allen .... p. 6
INDUSTRIAL DISPUTE RESOLUTION: ISSUES, TRENDS AND IMPLICATIONS
to uncover, it may be redefined over time, and occasionally it may be trivial,
but it is there nonetheless. Communication processes constitute conflicts and
can easily exacerbate them, but they are rarely the sole source of the
difficulty." (Folger et al, 1993, p.5)
"Conflict interaction is colored by the interdependence of the parties. ... the
interdependence implies .. they can potentially aid or interfere with each other.
For this reason, conflicts are always characterised by a mixture of incentives
to cooperate and to compete." (Folger, et al, 1993, p.5)
The other bibliographic sources enunciate the "real difference of interest" as
follows:
1. control over resources/ scarcity in a closed system and
competition for sufficient for physical survival (of the
individual, the "family", the social group, giving the guarantee
of the survival of the species in time - the imperative of securing
generational continuity)
2. territory - another way of describing control over resources
where resources are locationally based; but there is another
element: "space" - overcrowding usually constitutes a "threat" -
is a stressful context
3. the psychological constructs for security of identity: principles;
or values; or beliefs; or preferences and nuisances
4. the relationship between the parties
Again, a fairly basic review of the components of the workplace will quickly identify that
these "real differences of interest" exist in the workplace.
But the workplace does not exist in isolation. It exists in a wider social construct. And in
Western Society, particularly, that wider social construct and the workplace have a significant
and ongoing interaction.
The Wider Social Construct:
Firstly, there has been a growing emphasis on the workplace as being the primary "social
context" of contemporary Western Society, as expressed in Australia.
This could be associated with:
1. the failure of other social units, like: the church; community groups; family;
other neighbourhood relationships, etc
DR: INDUSTRIAL DISPUTE RESOLUTION ASSIGNMENT : Dianne Allen .... p. 7
INDUSTRIAL DISPUTE RESOLUTION: ISSUES, TRENDS AND IMPLICATIONS
2. amount of time spent at work / and/or committed to work (travelling to, etc)
In any event it has resulted in the expansion of the notion of the responsibility of employers
- work
- pay
- "conditions": sick leave, annual leave, long service leave
- "benefits": superannuation
- OHS
- Antidiscrimination
- focus of practical education on "natural justice" - the "fair go all around": unfair
dismissal
An illustration of this is demonstrated in Brass' comment:
"It [the concept of Paid Maternity Leave] is however, completely consistent
with a trend that has been accelerating since the 1940s, one that I call the
"corporatisation" of human activity. Increasingly our world is becoming
more "businesslike" and business institutions are expected to take on more and
more social responsibility."
At the fairly basic level of the "pay and conditions" aspect of the employment contract, the
interplay of industrial disputation, over time, within the Australian political context, and the
regulation of industrial activity, has resulted in the formation of something of the nature of a
broader social contract.
In the process of changing the current regulatory regime there is an overall move to
decentralise this previously centralised decision-making. One of the espoused intents of this
process is to deliver organisational flexibility which may enable enterprises to attain
competitiveness.
However, this can only be at a cost to the broader community of the loss of those "elements of
certainty" which the previous industrial structure delivered:
- stability in wage setting,
- elements of "egalitarianism" - all essentially equal, dealt with equally, with an
independent arbiter setting some sort of community minimum standard and
thereby delivering part of the broader social contract, providing some sort of
constraint on exploitation; limiting the arbitrary exercise of raw industrial
muscle and putting a bit of a curb on unbridled jealousy/ greed
Again, looking at a "community" level, one can well question the "rationality" of the present
structural changes:
There is another cost, simply in terms of efficiency, that of now needing to deploy
resources, locally, to replicate activity which in the past was conducted in the
industrial tribunals for:
DR: INDUSTRIAL DISPUTE RESOLUTION ASSIGNMENT : Dianne Allen .... p. 8
INDUSTRIAL DISPUTE RESOLUTION: ISSUES, TRENDS AND IMPLICATIONS
- industry-wide issues &
- long term impact on competitiveness - to some extent for wages and
conditions there was a level field - all had to meet at least a minimum standard.
There are some social commentators seeking to sound a warning concerning the long term
impact, in society, of the expansion of competition/ competitiveness into all sectors of
society, and in particular into the public sector. At the broader social contract level it can
impact on our experience of a "civil" society.
Within the industrial context, competition for scarce work promises to contribute a similar
threat. And, should the past mechanism of dealing with this - the collective activity of
unions - be effectively dismantled, there is the potential for the kind of social upheaval that
convulsed the earlier years of this century, until, in Australia, the tri-partite pact of arbitration
|| tariff protection || and immigration policy established a more stable labour market context.
The present rate of change is much greater than in the immediate past. This is adding to the
potential for higher levels of instability. For instance, some agencies are out and about
"touting" for business in areas which were previously almost "inviolable", (eg raising the offer
of outsourcing payroll), offering services to provide more flexibility. [Drake International
sought to open discussion of these issues with Shellharbour Council - citing the moves of a
near neighbour council - a "competitor" - to justify the need for this consideration.]
In this scenario, we have seen many agencies responding to the need to have flexibility to
cope, long term, by making small adjustments short term. Hence the downsizing exercises at
the moment. And this despite the international experience which indicates such downsizing
may well be more dysfunctional in terms of long-term viability than other forms of
belt-tightening.
Within the context of the shift of work opportunities and the pressure for international
competitiveness, Handy has sought to warn of the social impacts, and the need to take a
proper view about competitiveness at a national level with internal operations, eg government
enterprise.
This simply highlights the remarks of other business analysts, on the appropriate limits of
competition. Competition is an "external" stance. Competition, internally, is a nonsense.
In the past, at least, this wider social construct has been part of the milieu of industrial
disputation.
As I reflect on the issue, I think part of the reason for that is one of historic context, and the
specific conditions operating in the late 19th and early 20th century.
The solution determined in Australia, with compulsory arbitration, and certain principles
established in and by the industrial tribunals and then further hammered out in political
DR: INDUSTRIAL DISPUTE RESOLUTION ASSIGNMENT : Dianne Allen .... p. 9
INDUSTRIAL DISPUTE RESOLUTION: ISSUES, TRENDS AND IMPLICATIONS
debate, the determination of a particular party rule in government and legislative formulation
to effect that policy, has given us a carry over of certain principles into the area of resolution
of industrial disputes:
1. the rule of law
1.1 it is not just power to the powerful
2. the social obligation of legal decision with regard to industrial matters to the
wider community
2.1 Higgins' "basic wage" concept and the interrelation between work life
and family and community life, and the "lack of economic power" of
the individual worker "in the employment equation"
2.2 the "public interest" test
3. security
3.1 the "no disadvantage" test
While recent years have not seen the same sort of turmoil as that experienced at the beginning
of the century, and part of this may well be due to a recognition of the interrelatedness of
many different aspects of economic life (pay -> mortgage/ credit payments -> business
viability), the current level of changes may well shake this fundamental security existing
within our community, especially if ideology and dogma and simplistic views of solutions to
current socio-economic difficulties begin to unravel these gains, and for a widening
percentage of our population.
It remains to be seen whether this wider social construct, and the issues related, will return to
the industrial disputation context.
1.2 Methods of Resolution
One of the outcomes of the recent development of the study of disputes and dispute resolution
is the recognition of the "spectrum" of such activity; and the value of matching "horses for
courses".
Macken & Gregory apply this concept to the current changing scene of Australian industrial
relations.
Freebairn has identified five broad options/ elements in the industrial relations spectrum and a
fairly rough attempt to match these with the dispute resolution spectrum, as indicated in Table
1, below, is designed to give some indication of appropriate levels of congruence between
structural relationships and dispute resolution mechanisms. (See Notes 1& 2, below)
The principle involved here can be enunciated as:
making the level of responsibility consistent with autonomy
DR: INDUSTRIAL DISPUTE RESOLUTION ASSIGNMENT : Dianne Allen .... p. 10
INDUSTRIAL DISPUTE RESOLUTION: ISSUES, TRENDS AND IMPLICATIONS
If organisations are to be fully responsible for their economic success, whether at the level of
viability or at another level of profitability, they need to be able to exercise autonomy in
determining their responses to the changing economic scene. Hence, with the move, in a
conservative laissez-faire market economy, to free the labour market to be able to respond to
market factors.
The thrust in ADR, in part, recognises the limitations of the "institutional" mechanism in
handling disputes. Regulation by monolith in a more and more complex and rapidly
changing social context is rapidly becoming less and less tenable. The endeavour to
enunciate alternative mechanisms for dispute resolution, and to identify different levels of
autonomy and responsibility for resolving disputes, is a useful tool in such a changing and
changeable scene. The call for practitioners to be aware of these differences, and to advise
the parties in dispute about the best process available and applicable for a particular kind of
dispute is an important contribution to the current social milieu.
Within the various options for structural relationships in industrial relations identified by
Freebairn, the relationship between autonomy and responsibility shifts. Where disputes
between the parties in the industrial relationship occur, the method of dispute resolution,
especially in the area of recognising autonomy and responsibility, ought to match the
relationship between the parties.
[Note 1: The caveat is, that the table is only a conceptual construct, indicating a framework for such a
consideration. It is not, and cannot be prescriptive. For one, the boundaries between the elements
indicated in either side of the spectrum are not necessarily fixed in concrete.
[Note 2: Other work (David, 1996) has proposed that in any dispute resolution system design there ought to be
recognition of, and provision for, de-escalation as well as escalation.]
DR: INDUSTRIAL DISPUTE RESOLUTION ASSIGNMENT : Dianne Allen .... p. 11
INDUSTRIAL DISPUTE RESOLUTION: ISSUES, TRENDS AND IMPLICATIONS
TABLE 1:
INDUSTRIAL RELATIONS
SPECTRUM
LEVEL OF
CONTROL
DISPUTE RESOLUTION
SPECTRUM central planning, for example a dictator,
government wage freeze, government
regulated minimum wages, hours and
leave provisions
MOST
INTERVENTION/
LEAST CONTROL
(Civil) War
corporatist model, for example big unions
and employer associations negotiate
broad labour market parameters as
illustrated by the Accord of the 1980s and
the Swedish and West German systems
Government Overthrow via ballot box
Appeal
Litigation (with or without Referencing
Out)
Australia's tribunal system in which
government appointed quasi-legal bodies
act as third parties to conciliate and if
necessary to arbitrate on evidence
submitted to it by unions and employer
associations
Arbitration Expert Determination Simplified Arbitration Expert Appraisal Conciliation
collective bargaining at industry and/ or
enterprise levels between employee
associations, including unions, and
employers
LEAST
INTERVENTION/
MOST CONTROL
Mediation
direct contract bargaining between
employers and individual employees.
Case Presentation Facilitation Negotiation
For the situation in Australia, at this time of change, this interaction needs to be understood
and recognised.
The industry-wide arbitrated solutions of the past cannot handle current demands for
flexibility; for "individualised" justice based on "merit"; for adjustments required to deal with
localised and/or rapidly changing circumstances.
The challenge for Australia is whether the parties to the industrial relations complex
recognise this, and are prepared to work at those activities which will equip them to make the
changes these times bring.
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INDUSTRIAL DISPUTE RESOLUTION: ISSUES, TRENDS AND IMPLICATIONS
1.3 Implications for the development of interpersonal and interactional skills
I have dealt, in some detail, with the issues of conflict in the workplace and methods of
resolution of those conflicts, in previous assignments.
These assignments have tended to consider the "workplace" and disputes in the workplace in
the broadest of terms, with some occasional focus on the "industrial" (the collective
employee- employer relationship) context.
While these treatments do not exhaust the possibilities for exploration of these "implications",
further work and comment, in this assignment, is probably unwarranted.
The specific thrust of contents of these assignments can be indicated as follows:
FOR DETAILS, SEE THE ATTACHMENTS
1.3.1 Equipping Staff to Handle Disputes Effectively in Local Government
This assignment explored, to a significant level of detail, the current "industrial" context of
the local government workplace, especially as it has developed recently in the area of award
restructuring (1989-1996).
For local government, this change has been enormous, but has also been conducted within a
time frame and with a range of options which has allowed individual councils to move as
quickly as they are able, and as far as they want.
Overall, the industry continues to be substantially conservative - reliant on industry standard
award minimum conditions.
For some councils, there has been much more move towards the potentialities of enterprise
bargaining in addressing change to reach a more strategic focus for service provision and
"local government" role.
As a result of that work, it seems to me that the focus of this assignment will be most
beneficial if I can effectively explore the experience, the development and issues associated
with enterprise bargaining, and/or of negotiating employment contracts as preparation for the
next stage for the workplace I am involved in.
1.3.2 Issues in Training in Negotiation Skills for an Organisational Setting
Enterprise bargaining, or negotiating the conditions of a contract of employment, implies the
need for effective negotiating skills.
My second assignment involved a more detailed consideration of the issues involved in
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INDUSTRIAL DISPUTE RESOLUTION: ISSUES, TRENDS AND IMPLICATIONS
training, when that training is dealing with "embedded" knowledge.
Negotiation is an interpersonal interaction.
The question of change, if it is required, to improve current interpersonal and interactional
skills for a negotiating context, especially if current skills in this area are dysfunctional, was
addressed in a preliminary way in that assignment.
Some of the issues involved with delivering that training at the workplace, and under the
auspices of the organisation, are also addressed.
1.3.3 Facilitation: The Use of Mediation Techniques & Processes in Resolving Differences in Group Decision-making
My third assignment took me into the study of groups, group behaviour, and the task of
assisting in situations involving conflict in such a context.
As such, this study exposed me to current theory involving "communication" as a critical
element in the interactions in groups.
Again, enterprise bargaining is a specific context for multi-party negotiation, with its inherent
complexities. This study material collected together some of the background knowledge
applicable in this context.
1.3.4 Learning from the Experience of Disputes at Shellharbour City Council
This assignment focused on the value of looking at an organisation's own experience of
disputes and dispute resolution as a source of organisational learning about how to go about
it.
One example explored an enterprise level negotiation of a change in working conditions
(circa 1982).
This situation exposed some of the difficulties faced in such a context, and the level of skills
available to deal effectively with this situation.
1.3.5 Lessons to be Learned from the Experience of Disputes in the Construction Industry
A focus in this assignment, relevant to the topic of industrial disputes study, involved a
consideration of the nature of competition and cooperation in a volatile, competitive market.
The experience of the construction industry, and endeavours in that industry to develop
mechanisms to mitigate, or circumvent, disputes, are seen to provide valuable lessons for any
participants in industrial disputation where the pressures of increasing need for flexibility of
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INDUSTRIAL DISPUTE RESOLUTION: ISSUES, TRENDS AND IMPLICATIONS
labour market, and responsiveness to shorter-term contractual arrangements need to come
into play.
The indications are (Handy & Saul) that the "new" industrial scene may involve much more
of this kind of enterprise/ organisational interrelations than has been the experience in the
past.
1.3.6 Nature of Conflict & its Role in Society
This assignment explored the need for and value of developing an understanding of
psychological issues in any dispute situation. Such knowledge will be important in
enhancing the ability of participants to an industrial dispute to deal with the dispute
productively.
1.3.7 Summary Remarks
In summary, the consolidated conclusions from these assignments highlights the role of
specifically focused training to equip the parties to operate more effectively in dispute
situations.
Such training needs to cover the following areas:
1. communication techniques
1.1 active listening
1.2 effective questioning
1.3 perceiving emotions
2. negotiation techniques
2.1 positional bargaining
2.2 interest-based negotiation
3. the range of procedures available to undertake dispute resolution, and their
fundamental components:
3.1 fair process - all parties being heard
3.2 role of any third party - neutral
3.3 determination of the matter on the basis of accepted (known and
explainable) objective criteria
3.4 selection of process appropriate to the nature of the dispute
3.5 the timing of the dispute resolution intervention - ripeness of dispute
4. components that lead to escalation:
4.1 faulty process - perception of bias
4.2 poor or bad timing - unreasonable delay
4.3 initial response - not respecting legitimacy of complaint, right of
complainant to raise the matter
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INDUSTRIAL DISPUTE RESOLUTION: ISSUES, TRENDS AND IMPLICATIONS
5. strategic interventions:
5.1 questioning for clarification
5.2 rephrasing or reframing for perception development
5.3 private caucus
5.4 instruction on process
5.5 option generation - hypothesising
5.6 maintenance of self-esteem - mutualising, normalising
5.7 reality testing
6. the third party role:
6.1 mediator
6.2 facilitator
6.3 conciliator
6.4 arbitrator
6.5 adjudicator
7. the role of power and its use in dispute resolution
8. the role of "rights" and the use of "rights" in dispute resolution
9. the nature of differences arising from gender, language, ethnicity, subculture,
different value systems, etc
10. the interplay of factors in a group situation:
10.1. individual psychology and behaviour and the likely (and not so likely)
consequences of the interaction of the variety and potential brought to
the group by its individual members
10.2. the formation (over time) of a group psychology and behaviour and the
expression of its form
10.3. the likely impact of certain strategic interventions to a group context,
There are now significant differences compared to the operation of an
intervention in, say, a two-party mediation. The context is now one where the
impact is being directed at the "group dynamic". That impact will be at two
levels:
1. on the individual as an individual in the group, but also
2. on the group as a whole, which may have an expressed group
behaviour quite different to the sum of the parts, or a "mean" of
the "types"
10.4. a range of alternative procedures to allow a process to be selected
which meets the needs of the problem/ dispute or the particularities of
the stakeholders/disputants
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10.5. A level of depth of knowledge (of group behaviour and group
processes) required for dealing with dysfunctional individual/group
behaviour in a group which has a history of interaction, and which has
a future prospect of further ongoing interactions
10.6 and, if acting as a facilitator, Argyris (1970) makes the case for
additional skills in the facilitator ("intervenor" in his context). These
additional skills are in relation to a capacity, at a personal level, to
undertake the task of intervention. The important factor identified
here relates to an ability to deal with the potentially isolating and the
actually isolated context of the role. This is especially acute when
intervention is a person's primary role, and that person is operating
from a position external to a formed group. The usual "social"
support provided in membership of the group is not available. Indeed,
the group facilitated may oppose/ resent/ passively resist the
intervention. The intervenor can be a convenient scapegoat for
dysfunctional groups which do not want change.
2. WHAT PREDICTORS ARE THERE FOR THE CONDUCT OF INDUSTRIAL RELATIONS IN THE FORESEEABLE FUTURE?
2.1 The Theme of Change:
If there is a predominant theme here it is change.
There are at least three kinds of change which are currently impacting on the workplace:
* change from the global economic context
* change in the structure of work and organisations
* change in the regulatory regime of industrial relations, with the major move being
from the determination of pay and conditions, etc, in a centralised forum ->
devolution of these decisions to a decentralised forum: the enterprise
It is almost "folklore" to claim that the "paradigm" of industrial relations in Australia is
"transforming".
Certainly, change is abroad.
Firstly, there is the change arising from the development of the global economy, and
Australia's need to respond to those changes for the purposes of "survival" - identity; quality
of life; nationhood (whatever that may mean); economic viability (at least as a contributing
partner, not just some sort of "vassal" community, if not quite so far as an independent
operator).
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Within this area of change Costa and Duffy (1991) make a case for the adjustment of the
industrial relations landscape in conjunction with other "pet" policies operational in the
Australian economy: tariff protection and immigration policies.
Other rhetoric within this stream speaks of: "increased flexibility", "improved productivity ",
"striving for international competitiveness", etc.
Then there is the change arising from developments of the structure of work and
organisations.
As the global economy shifts from "industrial" (with manufacturing industry as the major
employer area as far as numbers go) to "service"/ "information", the nature of work, and
options for organising it, have changed.
The context of mass production with large workforces having to be structurally organised,
while not completely defunct, is moving to smaller units, more self-contained and
self-directing, etc, forming strategic alliances. The monolithic union/industry interface is
changing. Mechanisms for dealing with conflict, etc, need to respond to such change.
These organisational changes have responded to the potential and incorporated the impact of
technological change.
There is increasing pressure, via organisational structure, within the tighter global economy,
for greater organisational efficiency. This is then expressed in "strategic" change - the focus
on "core" business and "core productivity" and the use of alternative structures like the move
to more "casualised" and/or "part-time" labour, "outsourcing", "strategic alliances",
"partnering" for specific time-limited projects.
What were the old ways of "industrial relations" may no longer serve the emerging social
contract which includes the contemporary workplace.
One response, in Australia, has been to introduce significant change in the regulatory regime
of industrial relations.
2.2 Change and Conflict
As Acland has remarked, "change", of itself, is a significant contributor to conflict. And
change in/ for the workplace is likely to be a source of conflict in the workplace.
There are a number of indicators, from the literature, of both the risks and the responses, to
these changes.
The question may well be to what extent are these responses likely to contribute to conflict
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and/or ameliorate the negative potential of conflict.
In the first instance it is worth remembering that conflict per se is "neutral" - it is the response
that makes a conflict "positive" or "negative". And as Deutsch has remarked
Conflict has many positive functions:
• it prevents stagnation
• it stimulates interest and curiosity
• it is the medium through which problems can be aired and solutions
arrived at
• it is the root of personal and social change
• it is often part of the process of testing and assessing oneself, and as
such, may be highly enjoyable as one experiences the pleasure of the
full and active use of one's capacities
• demarcates groups from one another and thus helps establish group
and personal identities
• external conflict often fosters internal cohesiveness
and Folger
p.8
"When differences exist and the issues are important, suppression of conflict is
often more dangerous than facing it. ... The critical question is: what forms of
conflict interaction will yield obvious benefits without tearing a relationship, a
group, or an organization apart?" (Folger, et al, 1993, p.8)
2.3 The "Paradigm Shift"
The point that I would like to make about the "paradigm shift" claimed for the present
changing nature of industrial relations concerns the nature of this kind of change.
Kuhn had been teaching and developing the concept to his students in scientific history for
about 15 years before he presented it (a bit more generally) by publishing his first treatise in
1962. Most social science citations that I have come across, in the course of reading for
these studies in dispute resolution, cite "Kuhn (1970)".
This indicates that, at least for one key exponent of the concept in the social science area, the
concept encapsulated in "paradigm shift" as espoused by Kuhn finally made the transition to
the that exponent from some excerpt presented in 1970 after the second edition.
Barker's use of the concept to instruct the business world to challenge resistance to change
has now spanned over a period of at least 7 years.
One of the things that Kuhn did was to give this phenomenon a name: "paradigm" was a term
from grammar. In that context it means
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Paradigm 1a. the set of all forms containing a particular element; esp. the set of all
inflected forms of a single root, stem, or theme (Grammatical term)
b. the display in fixed arrangement of such a set
2. a pattern; an example
Gk paradeigma - pattern
The Macquarie Concise Dictionary. Sydney: Macquarie University, 2nd ed c.1988
The use of this term to now convey the elements of a common way of seeing; a common
conceptual language; building on a common conceptual edifice and taking a very defensive
political posture to outsiders may well be an important aspect of developing any "paradigm
shift".
We are talking about new concepts; new ways of seeing the same evidence, the same facts.
By enunciating a new word, to represent the new concept, there is a chance that the change in
perception, in understanding, can be conveyed, eventually.
deBono, in his works on thinking and conflict and perception etc, makes a significant case for
the limitations of language, in constraining thinking; and in the need to generate new words to
convey new concepts - eg "lateral" thinking.
These aspects raise the issues of
1. To have a full-blown "paradigm shift" will require a significant amount of time for all
the parties to "get the idea"
2. The socio-political context of industrial relations is likely to have too much variety in
it to be able to reach a truly coherent paradigm (ie the initial conditions for having an
"old paradigm" may not be in existence)
3. There are those with a longer and wider memory of industrial relations "as it is
practised", and the interplay of the parties and the proposed panaceas, who remark,
with some scepticism, that what is on the current agenda "has been seen before".
However, if it is not a "paradigm shift" in the fullest sense of what is meant by such,
nevertheless change is with us, and responses to that change will have a significant interaction
and dynamic with what eventuates.
It is the broader look at the field that reminds us that, at this stage at least, the theory of the
dynamics of social entities is not yet coherent; and that the practice of social intervention,
especially in disputes and dispute resolution, still has much of the empirical ("suck it and
see") and the pragmatic ("if it works, let's go for it") about it.
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2.4 Legislative Change of The Regulatory Regime in Australia
Quinlan, in his survey of trends from 1995, prepared for the APJHR, describes the "old
regulatory paradigm" as follows:
The pre-existing [1995, 1988] arbitral model in Australia entailed a number of
key features including
* a pervasive set of tribunal administered awards,
* legal recognition of unions which avoided the access/
bargaining rights struggles which have plagued countries such
as the USA,
* preference provisions for union members,
* and guaranteed recourse to a third party decision where the
parties were unable to negotiate a settlement.
He then goes on to remark, that as the regulatory context changes, new answers may well
arise to the questions of
In the Australian context, some of the important questions determined by the
regulatory framework and government policies include:
* how an enterprise [is] to be defined (a workplace, a section of a
workplace, a firm, etc.);
* who will be the parties to the bargaining process (employers,
unions, individual workers, works committees or informal
groups of employees [and/or their formal representatives -
consultants, legal representatives]);
* the extent to which bargained outcomes will be allowed to
depart from the determinations of industrial tribunals;
* to what extent industrial tribunals will supervise the bargaining
process;
* whether bargained agreements supplement or replace awards;
* whether devices should be instituted to ensure that enterprise
bargaining outcomes are generally in accordance with
macroeconomic objectives (such as inflation control);
* whether equity will be made a consideration in enterprise
bargaining, and, if so, how;
* and what policy agendas or notions of productivity will drive
the bargaining process.
Or, as Freebairn has expressed it more succinctly:
p.104
One set of criteria, which seems useful in evaluating the current debate on
regulation of the labour market in Australia, is differences in who is making
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decisions on the nature of the employment exchanges with respect to wages,
hours, training, work practices, and so forth. Or, what are the rights and
responsibilities of individual employees, unions, individual employers, industry
associations, governments and industrial tribunals in the negotiation,
operation and monitoring of labour exchanges?
A full consideration of the legislative context is better left to another place, to other people
with the appropriate expertise.
For the purposes of this level of consideration of the matters at issue, the general impressions
I have been left with, consequent to my current reading, can be summarised as follows:
1. Federal Moves
1.1 reinstatement of the primacy of state regulation of industrial matters if parties wish to
avail themselves of the state jurisdiction
1.2 reduction of the discretion of the Australian Industrial Relations Court to intervene
and determine matters by "award"
1.3 a freeing up of the context of bargaining to provide for three basic levels:
1.3.1 collective bargaining at a management-union level
1.3.2 collective bargaining without union involvement
1.3.3 individual bargaining with any acceptable representative(s)
1.4 a freeing up of the past controls of union organisation
1.4.1 the potential for "enterprise" union
2. NSW Moves
2.1 State award making provisions still predominant
2.2 within the award framework the capacity to formulate agreements at an enterprise
level
2.3 mechanisms to register enforceable agreements formulated independently of unions
and awards
Over time, in Australia, the industrial relations context has developed with a number of
players:
* the employer
* the employee
* the employee association/s - unions
* the employer association/s
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* the industrial tribunal/s
* the government & political opposition
* the confederation of employer associations
* the confederation of employee associations
Each of these parties has a role to play in the resolution of industrial conflict, especially
when that conflict has had a "wider construct" element.
As the industrial scene seeks to respond to the rapid pace of change and uncertainty impacting
on our daily living, the roles of each of these parties needs to be open to change, to make
appropriate adjustments, to serve a constructive purpose in the resolution of conflict in the
future.
The fundamental step taken by the recent changes in the Australian regulatory regime has
been that of seeking to devolve the decision-making responsibility for relationships between
employer and employee to the enterprise level, where the "over-award" aspects of the labour
market can be more responsive to the nexus between enterprise performance and market
factors than is the situation at the industry-wide arbitrated decision.
However, as this change occurs, and as the parties respond, there are some real dangers that
without adequate understanding of what we have now, and why, some of the elements that
safeguard the parties from the kinds of disputes that develop from a real "free-for-all" context,
will be lost.
There will be "losers" in the process, and the experience of the past shows that those who do
lose will be those who can least afford to lose.
2.4.1 Regulatory Changes and the Industrial Relations Totality
The first thing to say about these regulatory changes is that while they do set certain
boundaries, they do not necessarily then determine what happens next. The following
remarks from the literature highlight this:
Punch (1997):
p.1-2
"In my view, it is very difficult to predict now with any certainty as to what will
be the real impact of the 1996 Act on Federal industrial relations. No doubt
the Federal Government would say (as indeed the Minister for Industrial
Relations Mr Reith has said in the recent times) that it has through the 1996
Act provided employers and employees (but particularly employers) with the
means by which they may design industrial relations arrangements for their
respective workplaces that suit their particular needs without the prospect of
inappropriate "interference" by "outsiders" (such as trade unions and
industrial tribunals). But it remains to be seen whether the actual
participants in industrial relations will "grasp the nettle" and take up the
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opportunities (such as they are) in the 1996 Act or whether they will find it all
"too hard" and stay with what they know."
p.12
"A singular feature of both the Federal and New South Wales systems has been
legislative arrangements that gave binding force and effect (and thus court
enforceability) to collective industrial instruments scrutinised and approved by
the relevant tribunal, either in the form of an award or an industrial
agreement. A collective agreement between an employer and its employees
or a union representing those employees that was not formally "registered" in
either system possessed a legal status that could best be described as either
"uncertain" or "murky". Nevertheless, such agreements were (and are) not
uncommon, precisely because they fulfil a purpose in the workplace. They
can supplement an award or registered agreement or provide additional
benefits to employees over their award or registered agreement entitlements ..
"
Callus (1997):
p.21
Focusing attention on legislative changes to the formal system can be
misleading.
Long before politicians, employer representatives and unions began taking an
interest in enterprise agreements the parties were already negotiating their
own agreements - largely in secret. This is the unspoken side of the industrial
relations system, the verbal and written unregistered agreements.
Nelson (1997):
p.54
It is pointed out by Ludeke and Swebeck (1992), however, that enterprise
bargaining was possible dating back to the National Wage principles of 1975
and it is difficult to see why organisations have been slow to take advantage of
the opportunity for more flexibility.
p.56
System consultants report widespread non-compliance with awards, an
unexpected finding in view of the commonly held belief that Australia has a
legalistic system with mechanisms for redress, active unions and a system of
inspection in each state.
p.58
One of the effects of working under the former centralised, regulated system of
fixing wages and conditions, is to limit management thinking in a system which
has become less regulated. In psychological terms, it is called "mental set",
which exists when people persist in using problem-solving strategies that have
worked in the past (Luchins, 1942). Entrapped in thinking processes dominated
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by the constraints of regulation, managers seem unable to break the habit of
old ways. In the environment of enterprise bargaining, they need to take
advantage of the opportunity for flexibility and develop new work
arrangements. It is as though managers are completely unaware of the
opportunities for doing things differently under enterprise bargaining.
So, while tending to set limits, both by the agreed social contract of rule of law, and by the
impact of "custom" thinking which limits the exploration of creative solutions, regulation will
continue to have a significant role in the foreseeable future.
One strand of the critique of ADR continues to remind us that ADR is (probably most)
effective in the "shadow of the law". Legislation, case law, etc, gives clear guides to external
objective criteria when deciding about preferred options and resolving the balance of
concessions in balanced bargaining contexts.
The current trend (and in essence, in Australia, that trend is bi-partisan, even if there are some
significant differences of detail) to free up disputing parties from the constraints of an
arbitrated industry- or society- wide rules (except for minimum standards) gives greater scope
for industrial leadership and change .. providing either/both parties to the industrial
relationship can make the most of it.
The questions raised for me by this relates to the matter of initiative: who is to take it?; what
are the implications for resources?. The fact is that these obligations/ opportunities tend to
reside mostly with management. What does this then mean for the ongoing and continuing
power imbalance element of industrial relations and disputes?
2.4.2 Implications of this Regulatory Shift for Management
So far as the implications for management are concerned I have noted the following remarks
from current literature:
Quinlan (1996):
p.3
Further, for HRM managers the challenge is increasingly on how to balance
flexibility and equity at work not simply in order to meet the requirements of
EEO/ anti-discrimination law but also because, unlike economists, they
recognise that notions of fairness at work also have an impact on productivity.
p.25
Evidence indicates that an apparent shift to local negotiations is more
apparent that real, not only because of a preference for "pattern-bargaining"
among unions but also because of central management preferences. While
management now has the option of bypassing unions .. this may entail costs
such as lost access to employee "voice", the transaction costs of large firms
maintaining many agreements, divisions within the workforce and effects on
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employee morale in a low-trust environment. The same applies to balancing
flexibility and equity at the workplace. Notions of equity play a critical role
in employee morale and commitment. Where enterprise agreements
disadvantage one group over another or adversely affect OHS, there is a real
prospect that productivity benefits will be undermined. Trends in 1995
provide little indication that these problems have been sufficiently recognised.
Callus (1997):
p.25
With the exception of some parts of the mining industry, the waterfront and a
number of large, well-organised workplaces, management in Australia is back
in control. The challenge now facing management is to balance a desire for
ongoing efficiency enhancement with the need to address the concerns of their
employees. The increasing extent of work intensification, employee insecurity
and job dissatisfaction is now, perhaps, the greatest medium term threat to
Australia's drive for productivity increases and efficiency.
Nelson (1997):
p.62
Regardless of the detail of these reforms, the direction seems clear:
management style which has always been the key to business success is even
more relevant to enterprise bargaining outcomes.
Freebairn (1996):
p.104
.. the circumstances facing labour buyers and labour sellers are in a constant
state of change and evolution, and .. many of these changes .. cannot be
accurately foreseen. Such uncertainty puts a premium on labour exchange
arrangements which provide for flexibility and mutual trust, and it adds to the
complexity of labour transactions.
2.4.3 Implications of this Regulatory Shift for Unions
So far as the implications for unions are concerned I have noted the following remarks from
current literature:
Costa & Duffy (1991)
p.vii
"The trade union movement still has many important tasks to complete, not the
least of which is the task of developing ongoing mechanisms to ensure workers
are able to participate fully in a meaningful way in the design of processes that
affect their day to day working life. The involvement of workers in the design
of this process is fundamental to a change in Australian management.
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and
p.viii
"Bob Hogg recently bemoaned the stultifying impact of "factionalism" on open debate within
the labour movement. He argued that:
The rigidities that affect the trade union movement are similar to those that
affect the ALP, both through our own conventions and practices. There is
another profoundly negative deep stream in our culture which holds back
initiative, experimentation and open, critical, iconoclastic or even heretical
thoughts. This is aided and abetted by the structural problems which exist in
our own party, the movement and indeed most of the structures of society."
and
p.2
"(It is important to note that there is nothing "natural" about unions being
formed on the basis of craft. The overwhelming influence of the British
"model" and the subsequent institutional support of that model, through the
arbitration system, hindered the formation of unions on an industry, enterprise
or some other basis.)"
Quinlan (1996)
p.17
federal regulatory structure from 1988 .. encouraging union competition ...
and offering single union exclusive enterprise agreements
As a result, costly battles before tribunals to obtain exclusive recognition and
fierce poaching wars between, for example, the AWU and both the
construction and mining divisions of the more militant and rank and file
sensitive CFMEU have erupted. This was an underlying element in a fierce
13-week dispute at Mount Isa Mines which began in March 1995 over a
management attempt to wind back employee conditions as part of a cost-saving
drive.
and
p.25
Unions face perhaps their biggest challenge in 50 years .. there is mounting
evidence of adverse effects in relation to union organisation, equal pay,
occupational health and safety and other forms of equity in the workplace ..
The splintering of bargaining which has occurred under enterprise bargaining,
the development of non-union agreements and individual contracts, and
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increased competition for single union agreements have both weakened and
fragmented the union movement.
Punch (1997)
p.26
It is the writer's view that the provision relating to union coverage .. have the
potential to increase inter-union competition at workplaces, .. This could result
in increased disputation at some workplaces and a disruption to settled
patterns of industrial representation.
Peetz (1996)
p.561
The factors influencing employer encouragement of unions have been analysed
elsewhere ... In short, a high-trust, and perhaps high co-operation industrial
relations environment was the main factor identified as being associated with
management encouragement of unionization in what is probably a two-way
relationship. That is, management would be more likely to encourage
unionism if they have confidence in the union officials with whom they deal - if
they trust them to reflect the wishes of the members whom they claim to
represent and to keep to their word. Such trust is a prerequisite for efficient
bargaining.
and
p.566
Conclusions
Third, there is some relationship between human resource management
strategies to enhance employee participation and reduced unionization, but, as
has been pointed out elsewhere, the relationship between management
incorporation and unionization is a conditional one - conditional on the
behaviour of unions. If unions are doing their job, in the eyes of their
members, management efforts to develop more inclusive relationships will do
no harm to unionization and might even enhance it. But if unions are not
performing their functions effectively, management can circumvent unions
altogether by weakening employee attachment to unions by strengthening
employee attachment to the firm. This conjunction of union neglect and
managerial incorporation can lead not just to employees leaving their unions,
but to the de-unionization of entire workplaces and the growth of non-union
jobs.
and
p.568
Overall, unions can grow or decline on the strength of their abilities to
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accurately detect - or fashion - their members' preferences, to obtain and
retain a degree of power at the workplace and to successfully anticipate and
undertake industrial action in support of their members' interests. If a union
fails to accurately read or successfully manage employee preferences, it is
likely that it will face substantial recruitment and retention problems.
The devolution of the decision-making related to wages and conditions, etc, that is developing
with enterprise bargaining raises issues for unions concerning their structure, and the mode of
their activity.
* How best to structure, to have the resources, to represent their membership, in
the enormous number of sites implicit in "enterprise", in an increasing number
of interactions required to undertake devolved bargaining of wages and
conditions.
* How best to support the membership on the ground
These are the primary issues.
And there are secondary issues not to be sneezed at, if history is any indicator: of union
identity and power, and interactions within the union milieu - membership and factional
allegiances at the Labour Council, the ACTU, with the ALP at the State level and the Federal
level.
Again, if the experience of other organisations, both within the commercial and the
non-commercial sectors is any indication, these adjustments may be even greater that those
required at the operational enterprise level.
2.4.4 Implications of this Regulatory Shift for Employees
So far as the implications for employees (as distinct from unions and union organisation) are
concerned I have noted the following remarks from current literature:
Callus (1997)
p.17
.. the transformation in industrial relations that most employees have felt in the
past five to ten years has more to do with the drive by management to reshape
work practices, hours, skills and employment conditions through restructuring,
downsizing and work intensification than with the changes to the formal
bargaining arrangements and enterprise agreements.
Punch (1997)
Conflict of Interest and Other Difficulties
p.25
In general it would seem to be relevant to any such application for registration
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that consideration be given to a possible "conflict of interest" for any
enterprise union - that is, a critical function of a registered organisation is to
effectively "represent" its members. The proper discharge of that
responsibility might often bring a union's officers into disagreement with the
employer. But it would be certainly arguable that officers of an enterprise
union may possess an underlying loyalty to the employer that may influence
them (or may be perceived to influence them) in their dealings with the
employer.
3.WHAT PREPARATIONS NEED TO BE MADE TO EQUIP ORGANISATIONS - MANAGEMENT AND STAFF (AND ANY OTHER STAKEHOLDERS) - FOR THIS FUTURE?
With enterprise bargaining being the major focus for organisational effort in response to the
current changing scenario, I will limit this section to looking, at some detail, at this aspect.
In essence, there is a lot of work that needs to needs to be done, to build the skills identified
in section 1.3, amongst the parties likely to be involved in enterprise bargaining. However,
that is not all that needs to be done.
3.1 The Current Skills Base for Enterprise Bargaining
The Karpin report has summarised recent research into the state of play of the level of skills
available in the management-labour complex as follows:
Executive Summary p.5 "Enhanced productivity and innovative capacity in any
enterprise depend on two groups of people - employees and managers.
Attention and effort applied to improving the skills and productivity of the
Australia workforce over the last decade have begun to impact on the
performance of the Australian economy. Yet managers - whose skills can
determine enterprise and economic performance - have received scant
attention from analysts and policy-makers. If we have already seen significant
gains from workplace reform, it could well be that management reform will
drive our competitiveness in the future."
and
The greatest needs for skill development, for small to medium enterprises,
identified by Karpin report include: (ES: p.7,8)
(entrepreneurship)
management development
quality commitment
soft skills
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strategic skills
and
Karpin ES p.8: "While the nature of large enterprises tends to familiarise
managers with strategic planning concepts, in the main Australian enterprises
and their managers have too short-term a focus. Furthermore, while levels of
management development are probably adequate .. much of this development
lacks a strategic focus. Hence, although this is not the largest gap, it may be
the most difficult to bridge - involving as it does a profound change in top
management thinking."
These findings have been reinforced, and the various interacting aspects involved in
enterprise bargaining, have been highlighted in the outcomes of the (small sample) study
undertaken by Nelson, of management responses to enterprise bargaining.
p.57
Practitioners are universal in their criticism of management quality, across all
organisations regardless of size or industry.
Employers were reported to have skill deficits in:
* basic management
* human resource management
As well, they were reported to have skill deficits in:
* inflexible in their thinking
* failing to consult employees
* ignorant about the system of enterprise bargaining
* paternalistic
* ignorant about employee tasks and duties
p.57
One of the chief impediments to successful enterprise bargaining is a failure to
engage in open and effective communication, a problem widely reported by
practitioners.
p.59
One of the most damning criticisms of management is that when working
arrangements are put on the table for discussion and employees make
suggestions for improving efficiency, managers have very little, if any,
comprehension of what actually goes on in the workplace. For example,
employees wishing to discuss work tasks and processes find management
unable to respond adequately because they lack sufficient knowledge of the
work involved. This very fact may partly explain why the quality of
management and other functions and skills is so low. The loss of confidence
produced by ignorance of essential tasks would be likely to impinge on all
areas of management.
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Employers are reluctant to admit to any problems with the quality of their
management as revealed through processes of enterprise bargaining. They
do, however, admit to shortcomings in communication and trust between
workers and management. Specifically, employers find it difficult to build a
trusting relationship with their staff, many of whom perceive enterprise
bargaining as a vehicle for reducing wages and conditions of employment.
p.60
Employers feel the benefits of having a clear agreement in place ...
and
p.61
Goals as expressed by employers seem somewhat vague in a number of cases,
with expressions such as "flexibility", "productivity", "efficiency" and "a less
complex system" being common. When pressed for clarification, they speak of
a simplified set of employment conditions and flexible working hours.
These remarks, and others found in the current literature, indicate that there is a general lack
of knowledge and expertise in:
1. the process of negotiation
2. the content of what is available for negotiation
2.1 the wages and conditions and benefits and the understood and accepted
agreed position, and possibilities within them for trade-offs
2.2 the potentialities in the workplace for other changes and their likely
benefits and impacts
3. the constraints that determine the socio-economic milieu under which each of
the parties have to operate, and which determine their interests and concerns in
formulating any new agreement
That this is the current situation can be explained, partly, as being the legacy of the
centralised approach: neither management nor union/employee at the enterprise level is
particularly equipped to go into the negotiation involved in enterprise bargaining, effectively.
In the past, this kind of negotiating has been done, by the parties' representatives, at a "safe"
distance from the normal day-to-day interaction of the workplace.
And even in this "centralist" approach there has been further "specialising" and "distancing":
* employer associations have their "industrial" expert/s
* unions have their "industrial" experts - only selected ones are engaged in
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regular "award" negotiations/ conciliation and arbitration activities
* the negotiations are conducted at a "safe distance", including the formalities of
deliberations in the presence of a third party - the conciliator or arbitrator at the
tribunal level
* over time this has resulted in the formation of the so-called "industrial relations
club"
It is from this context that there then is:
* the passing on of the "myths" of how to go about it
* the modelling/ induction of new participants
Secondly, there is a general "community" lack of expertise in negotiating.
See - Negotiation assignment Note 1 commentary in the Bibliography
Thirdly, what experience management has had with negotiating has been with suppliers,
customers, specialist service deliverers, contractors, subcontractors, etc - ie it is generally in
the context of competition - driving the best/ a hard bargain.
There are some signs, in some industries, that an enterprise management's negotiating
experience is beginning to include the "partnering"/ "strategic alliance" element, where the
"cooperative" aspect of the relationship is more significant, and a difference in negotiating
process is more readily recognised. But this is a relatively new development. And it will
take time for experience of the nature of the relationship and the "different" nature of
appropriate interactions for a negotiation between "partners" to become more "common
knowledge".
And while there has been this change, it needs to be noted that the language of industrial
disputes, and the conveying of that by current media representation, still carries an enormous
amount of colouring from the "competitive" arena.
At the enterprise level it needs to be recognised that:
* the relationship at risk is much closer than that which prevails in the
centralised approach
* the importance of the continuity of that relationship is much greater for the
enterprise and its dependents and interdependencies than occurs at the
centralised level
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* therefore negotiating behaviour that is appropriate in other contexts (ie past
experience at the centralised level, or in other arenas) may not be the most
appropriate for the new enterprise bargaining context
* and what happens in the enterprise bargaining negotiations, as well as the
outcomes from those deliberations, are likely to have implications for other
interactions between the parties - ie the broader employee relations arena, and
especially in the conduct of any formal dispute resolution mechanisms in place
in an enterprise
And so far as the specifics of the agreement are concerned, (as noted by Nelson at page 60 &
61 quotes above) the past centralised system has had another impact. Centralising and
generalising, on the lowest common denominator, has meant that management has seen no
value in investing the necessary amount of time to
* build any detailed understanding of the elements of the "employment" contract
* determine what they might wish to change and why - ie they have little or no
real strategic focus for any proposed change
* build, in the negotiating process, a common understanding of what the parties
have agreed to; compared with "running into" "unknown" clauses by
inadvertent non-compliance
Once this work, this time and effort, is in place, both parties to the "bargain" are then "free to
get on with it".
3.2 Negotiation in the Enterprise Bargaining Context
The general weakness in understanding of the negotiation area has been raised by Fells, and
the following comment from him highlights this:
p.218
The process of negotiation has received little attention in industrial relations
research in Australia. Examples of negotiations are given as part of an
exploration of management-union relations [3 citations] or as part of an
analysis of an industrial dispute [3 citations] but the process of negotiation
between the parties has rarely been the focus of study [3 citations again].
Negotiation receives more attention in the North American context where the
focus of industrial relations activity has always been management-union
bargaining at the enterprise level. The major interest there is in the
development of mutual gains bargaining, which involves establishing a
co-operative approach to negotiation in order to reach better agreements [2
citations].
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But even in the North American scene, where enterprise bargaining has been the norm for a
much longer period, there are indications that the usually touted preferred route, of "mutual
gains bargaining", is going to require more than just "skills" training to be able to deliver the
desired results.
(Mutual gains bargaining is the espoused route so far as minimising the deleterious impact of
disputation and/or its escalation is concerned; and this direction comes from the findings of
recent studies in disputes and dispute resolution).
For instance, Friedman notes:
p.265
In recent years scholars, trainers, and practitioners of negotiation have tried
to bring "mutual gains bargaining" to the world of labor negotiations.
.. I ... present in this article .. that the theory underlying MGB fails to address
the pressures which create traditional negotiating behaviors in the first place.
Labor negotiators operate within a social structure that determines the roles
and power of all parties to a negotiation; those factors, in turn, determine how
negotiators behave. If those conditions fail to change, we cannot expect
negotiating behaviors to change.
and
p.278
Final thoughts
These ideas do not represent any kind of blueprint for change, but they do
suggest what kinds of modifications or additions to MGB theory will be needed
to ensure its viability in the labor-management context. The general thrust of
these ideas is that, in order for MGB to work, simply presenting the ideas and
training people through simulations is not enough. A great deal of work is
needed before such training begins, both with top management and with the
union's membership. More attention needs to be paid to the structural
conditions that influence negotiator behaviour, so that traditional role
expectations, power dynamics, and relationships between the parties do not
drive people to reproduce the traditional process despite their desire for
change. Setting the stage and context for MGB to take place is the hard part,
not teaching the ideas or perfecting the simulations of MGB. An improved
theory of implementation is needed to complement the theory of mutual gains
bargaining.
Fells' article, while dealing with a particular case study, reminds me of issues addressed in
other material currently instructing the negotiation element of the study of disputes and
dispute resolution at the moment, and their applicability to this area of industrial activity:
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- lack of research/ knowledge about negotiation in the industrial context, in
Australia
- more research etc available from US
- management preparation / strategic objectives || union responsiveness - awards
as benchmarks (in the shadow of independently arbitrated minimum
standards)
- management initiative - interaction with Callus's article (and other remarks
noted earlier)
- management performance - interaction with Nelson's article (and other remarks
noted earlier)
- union skills (previous negotiating experience, etc)
- learning in the interaction ... what is at risk
(other learning contexts consequences - Issues ; MGB article, resources for
training and independence, etc...)
- other negotiation material: preparation, preparation, preparation ....
- negotiating a text: (Fisher & Ury - new clauses - what was meant by them,
what were they understood to mean)
- establishing a secondary dispute resolving mechanism - monitoring committee
for ongoing interpretation/ negotiation of application
- trust (reliability/ good faith understanding built up by concessions by both
sides)
- trust and outside parties issue
3.3 Other Aspects of the Bargaining Context
Other aspects of the bargaining context include:
* what there is to bargain - is it win-lose or win-win, and why, and what are the
prospects over time with the interaction with the global economy, etc
* equity and fairness - internally and internal versus external standards
* power imbalance
Again, the literature features these concerns in their commentary:
Costa & Duffy (1991)
p.188-9
For this proposal to work, unions/ workers must be allowed to bargain from a
position of equality. This requires a recognition by both employers and
governments of the unions/ workers "legitimate" right to strike within an
established legal framework. It should be remembered that Higgins' "New
Province for Law and Order" was predicated on the notion that strikes and
lockouts would be replaced by compulsory arbitration. Those who preach the
abolition of compulsory arbitration and the continuance of common law and
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other severe penal provisions against unions are both ignorant of the historical
"trade off" and are seeking a system which is unfairly tilted in the employers'
favour. It is the human dimension of the labour market which makes it
unique. The product sold has a "mind of its own" and often there is a
long-term relationship between the buyer and the seller. For this relationship
to be productive there needs to be the perception that the exchange is "fair". "
Quinlan (1996)
p.24-25
In terms of government policy, it can be noted that while enterprise bargaining
has been seen as the mechanism for achieving a more collaborative and
productive workplace, the evidence that this is occurring is patchy at best.
... in 1995 evidence mounted that the decentralisation of industrial relations is
associated with an increasing level of inequality in terms of pay and
conditions.
... much bargaining can be typified as concession bargaining
.. policy-makers are yet to recognize, let alone address, regulatory issues
raised by the significant growth in subcontracting, etc.
... governments must accept that notions of non-union or individual worker
bargaining are a policy nonsense. This inequality of power exists even in
relation to small business.
... the notion of a system free from outside interference is a fiction
Unions face perhaps their biggest challenge in 50 years .. there is mounting
evidence of adverse effects in relation to union organisation, equal pay,
occupational health and safety and other forms of equity in the workplace ..
Evidence indicates that an apparent shift to local negotiations is more
apparent than real, not only because of a preference for "pattern-bargaining"
among unions but also because of central management preferences. While
management now has the option of bypassing unions .. this may entail costs
such as lost access to employee "voice", the transaction costs of large firms
maintaining many agreements, divisions within the workforce and effects on
employee morale in a low-trust environment. The same applies to balancing
flexibility and equity at the workplace. Notions of equity play a critical role
in employee morale and commitment. Where enterprise agreements
disadvantage one group over another or adversely affect OHS, there is a real
prospect that productivity benefits will be undermined. Trends in 1995
provide little indication that these problems have been sufficiently recognised.
Freebairn (1996)
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p.104
In some senses the negotiated transaction between employers and employees
for labour services is a win-loss game, and in other senses can be a win-win
game. For example, increases in nominal wages, all else constant, roughly
involves redistribution from employers to employees. By contrast, increased
productivity, whether due to the adoption of new technology or better work
and management practices, provides an opportunity both for lower employer
labour costs and for increased employee real take-home pay.
Raffles (1995)
p.15
the error is tying relationships directly to gains rather than building
relationships which deal well with problems
3.4 Other Aspects of Workplace Relationships
Raffles identifies some of the components that contribute to a workplace relationship that is
able to "deal well with problems":
* building common understanding through communications and consultation
* constructing agreements which are clear in expectation, defining what can be
relied on and to what extent, rather than depending on less tangible aspects of
"trust"
In the work I undertook for the presentation associated with this unit of study, I endeavoured
to explore the concept of "accidental adversaries" identified in the Senge systems analysis
approach, and to see if the system analysis could provide a possible tool for the development
of common understanding of the complexities that interact in the industrial arena.
SEE ATTACHMENT 7 FOR DETAILS
While I cannot say with any confidence that this tool is "the" answer, it certainly appears to
have some potential to contribute in this aspect of dealing with problems better.
There is some evidence that effective consultation is one of the factors delivering better
productivity in the workplace.
For consultation and training, for providing technical advice in the area of workplace
relationships and building a strategic approach to enterprise activity, there are resource
implications.
Again, the AWIRS 95 study indicates the rate of change in this trend:
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"the presence of specialist managers (in the "employee relations function") has
increased from 34% in 1990 to 46% in 1995" [Employee Relations Update,
1997, 4 (83) p.1]
Peetz has noted the potential(s) for the focus of such resources:
p.548
".. it is established that one commonly observed collection of strategies, which
go under a variety of headings but which are commonly encompassed by the
term "human resources management", has the purpose of increasing employee
identification with the firm, increasing job satisfaction and providing
employees with the "voice" and apparent security that might otherwise be
provided by a union."
These are some of the internal challenges of the foreseeable future.
4. CONCLUDING REMARKS
Conflict is always likely to be part of the workplace experience.
The level of conflict - where it occurs, how often it occurs, what aspects of the workplace,
and/or its wider context, get embroiled in the conflict, and/or its resolution, will be significant
issues for the parties engaged in the workplace.
The study of disputes and dispute resolution has much to contribute to dealing with conflict,
at its various levels, in the workplace. One of the significant contributions available here is
the kind of knowledge that allows an effective decision to be made about the nature of the
conflict and the best mechanism to deploy to endeavour to accomplish its resolution.
The present trend to devolve responsibility for negotiations on wages and conditions, etc, in
the workplace, to the enterprise level, simply heightens the need for the development of
appropriate skills within these areas at the workplace level.
The current literature also indicates that skills training, per se, especially for the context of
these kind of negotiations, will not be sufficient.
There needs to be additional effort given to the task of familiarising both parties to the
negotiations of the complex system interactions between issues and constraints in the
workplace and beyond the workplace in the "global economy". (Presentation issue.)
There also needs to be more work done in unravelling what are the limitations and
implications of the multi-party elements of these kind of negotiations, and what these imply
for work on developing the nature and/or the quality of the relationships involved, setting
parameters and protocols for the roles played by representatives in the negotiations, and
dealing, in perhaps a structural way, with the power aspects of the relationship and how those
aspects are expressed and respected.
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If there is any lesson for the future, from the past history of industrial relations in Australia, it
may well be that the "whole" of industrial relations is not limited to the enterprise, and so that
the responsibility for the resolution of all industrial disputes cannot be limited to the
enterprise.
If the impact of the global economic development is that the next phase will include much
greater competition between workers for limited levels of work, paid for at a livable rate, then
there may be a need to restore the emphasis on collectivism, and industrial action will need to
go beyond the confines of the enterprise.
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BIBLIOGRAPHY:
This bibliography is presented in the order of the sections of the report. This allows the
bibliography to convey where supportive material will be found, although this process means,
at times, there is repetition of citations.
SECTION 1: 1.1
Folger, JP Poole, MS Stutman, RK Working through Conflict: Strategies for Relationships,
Groups, and Organizations. NY: HarperCollins, 2nd ed c1993 (1st ed 1984)
Folger, JP Poole, MS Stutman, RK Working through Conflict: Strategies for Relationships,
Groups, and Organizations. NY: HarperCollins, (1st ed ?1984) 2nd ed c1993, 3rd ed c.1997
Allen, D Nature of Conflict & Its Role in Society. [Unpublished] Assignment for course
work on Psychology & Dispute Resolution for the UTS MDR, May, 1997
The Macquarie Concise Dictionary. Sydney: Macquarie University, 2nd ed c.1988
Folberg, J and Taylor, A Mediation: A Comprehensive Guide to Resolving Conflicts Without
Litigation. San Francisco, Calif.: Jossey-Bass, 1984
UTS Dispute Resolution Course Notes, c.1995
Moore, CW The Mediation Process: Practical Strategies for Resolving Conflict. San
Francisco, Calif.: Jossey-Bass, 1986
Deutsch, M The Resolution of Conflict: Constructive and Destructive processes. New Haven:
Yale University Press, c.1973
Taylor, SE, Peplau, LA, Sears, DO Social Psychology. New Jersey: Prentice-Hall, 1997, 9th
ed [1st ed - 1970]
Cloninger, SC Theories of Personality: Understanding Persons. New Jersey: Prentice-Hall,
1996, 2nd ed
Condliffe, P Conflict Management: a practical guide. Abbotsford, Vic.: TAFE, c.1991
deBono, E Conflicts: a better way to resolve them. London: Penguin, 1991 (c.1985)
Sandole, DJD, van der Merwe, H Conflict Resolution Theory and Practice: integration and
application. Manchester: Manchester UP, c.1993
Adler, RB Rosenfeld, LB Towne N Interplay: the Process of Interpersonal Communication.
NY: Harcourt Brace Jovanovich, 5th ed c.1992
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Acland, AF A Sudden Outbreak of Commonsense: Managing Conflict through Mediation.
London: Hutchinson Business Books, c.1990
Deutsch, M The Resolution of Conflict: Constructive and Destructive processes. New Haven:
Yale University Press, c.1973
Westen, D Psychology: Mind, Brain & Culture. New York: Wiley, 1996
Sandole, DJD, van der Merwe, H Conflict Resolution Theory and Practice: integration and
application. Manchester: Manchester UP, c.1993
Brass, C "Paid Maternity Leave - I wouldn't like to see that" HRMonthly August 1997, p.56-7
"It [the concept of PML] is however, completely consistent with a trend that
has been accelerating since the 1940s, one that I call the "corporatisation" of
human activity. Increasingly our world is becoming more "businesslike" and
business institutions are expected to take on more and more social
responsibility."
Farrar, A Inglis, J (ed) Keeping it together: State and Civil Society in Australia. Leichhardt,
NSW: Pluto Pr, 1996
Dialogues on Australia's Future. Melbourne: Centre for Strategic Economic Studies, 1996
Handy, C: remarks on an Ansett in-flight interview May 1997
Porter, ME "From Competitive Advantage to Corporate Strategy" in Mintzberg, H, Quinn, JB
The Strategy Process: concepts, contexts, cases. London: Prentice-Hall, 1996, 3rd ed (1991
2nd, 1988 1st)
McCallum, RC "The New Millenium and the Higgins Heritage: Industrial Relations in the
21st Century" Journal of Industrial Relations 1996, 38 (2), 294-312
1.2
Macken, JJ Gregory, Gail Mediation of Industrial Disputes. Sydney: The Federation Press,
1995
Freebairn, J "A More Effective Labour Exchange System" in Dialogues on Australia's Future.
Melbourne: Centre for Strategic Economic Studies, 1996
David, J, Designing Dispute Resolution Systems. [Sydney: Paper for Second International
Mediation Conference, 1996]
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1.3
Allen, D Equipping Staff to Handle Disputes Effectively in Local Government. [Unpublished]
Research Assignment for course work on Dispute Resolution for the UTS MDR, May, 1996.
Allen, D Issues in Training in Negotiation Skills for an Organisational Setting. [Unpublished]
Assignment for course work on Negotiation for the UTS MDR, June, 1996
Allen, D Facilitation: The Use of Mediation techniques & Processes in Resolving Differences
in Group Decision-Making. [Unpublished] Assignment for course work on Advanced
Mediation for the UTS MDR, November, 1996.
Allen, D Learning from the Experience of Disputes at Shellharbour City Council.
[Unpublished] Assignment for course work on Dispute Resolution in Commerce for the UTS
MDR, November, 1996
Allen, D Lessons to be Learned from the Experience of Disputes in the Construction Industry.
[Unpublished] Assignment for course work on Construction Industry Dispute Resolution for
the UTS MDR, March, 1997
Allen, D Nature of Conflict & Its Role in Society. [Unpublished] Assignment for course
work on Psychology & Dispute Resolution for the UTS MDR, May, 1997
SECTION 2: 2.1
Callus, R "Enterprise Bargaining and the Transformation of Australian Industrial Relations."
Asia Pacific Journal of Human Resources, 1997, 35(2) p.16-26
Nelson, LG "Managers and Enterprise Bargaining: Some Preliminary Findings." Asia Pacific
Journal of Human Resources, 1997, 35(1) p.53-64
Raffles, PJ Enterprise Bargaining Relationships and the Conflictual Nature of Industrial
Relations: A Troubling Composite. [np]: January, 1995
Quinlan, M "The Reform of Australian Industrial Relations: Contemporary Trends and
Issues." Asia Pacific Journal of Human Resources, 1996, 34(2) p.3-27
Punch, P The Enterprise Focus: Challenges, Uncertainties & Opportunities? Sydney: CCH,
Industrial Relations Update, February 1997
Fells, R "Enterprise Bargaining and the Process of Negotiation: A Case Study" Journal of
Industrial Relations 1995, 37 (2), 218-235
MacDermott, T "Industrial Legislation in 1996: The Reform Agenda." Journal of Industrial
Relations 1997, 39 (1), 52-76
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Peetz, D "Unions, Conflict and the Dilemma of Co-operation" Journal of Industrial Relations,
1996, 38 (4), p.548-570
Costa, M Duffy, M Labor, Prosperity and the Nineties: Beyond the Bonsai Economy. Sydney:
The Federation Press, 1991
Handy, C The Empty Raincoat: Making Sense of the Future. [London]: Arrow, c.1994
2.2
Acland, AF A Sudden Outbreak of Commonsense: Managing Conflict through Mediation.
London: Hutchinson Business Books, c.1990
Deutsch, M The Resolution of Conflict: Constructive and Destructive processes. New Haven:
Yale University Press, c.1973
Folger, JP Poole, MS Stutman, RK Working through Conflict: Strategies for Relationships,
Groups, and Organizations. NY: HarperCollins, 2nd ed c1993 (1st ed 1984)
2.3
Kuhn, TS The Structure of Scientific Revolutions. Chicago: Univ Chicago Pr., 1962, 2ed
enlarged, 1970
Barker, J The Business of Paradigms: Discovering the Future. July 1990 release
Burrell, G "Normal Science, Paradigms, Metaphors, Discourses and Genealogies of Analysis"
in Handbook of Organization Studies ed. S R Clegg, C Hardy, W R Nord. London: Sage,
c.1996
... the paradigm marks out, in an agreed and deepseated sense, a way of seeing
the world and how it should be studied, and that this view is shared by a group
of scientists who live in a community marked by a common conceptual
language, who seek to build upon a shared conceptual edifice and who are
possessed of a very defensive political posture to outsiders
deBono, E Conflicts: a better way to resolve them. London: Penguin, 1991 (c.1985)
Justice Bauer's remarks to the Industrial Dispute Resolution group August, 1997
2.4
Quinlan, M "The Reform of Australian Industrial Relations: Contemporary Trends and
Issues." Asia Pacific Journal of Human Resources, 1996, 34(2) p.3-27
DR: INDUSTRIAL DISPUTE RESOLUTION ASSIGNMENT : Dianne Allen .... p. 44
INDUSTRIAL DISPUTE RESOLUTION: ISSUES, TRENDS AND IMPLICATIONS
Freebairn, J "A More Effective Labour Exchange System" in Dialogues on Australia's Future.
Melbourne: Centre for Strategic Economic Studies, 1996
MacDermott, T "Industrial Legislation in 1996: The Reform Agenda." Journal of Industrial
Relations 1997, 39 (1), 52-76
Smith, M Ewer, P "Unions and Public Policy: a problem of masculinity and markets?" in
Keeping it together: State and Civil Society in Australia. Leichhardt, NSW: Pluto Pr, 1996
Punch, P The Enterprise Focus: Challenges, Uncertainties & Opportunities? Sydney: CCH,
Industrial Relations Update, February 1997
Callus, R "Enterprise Bargaining and the Transformation of Australian Industrial Relations."
Asia Pacific Journal of Human Resources, 1997, 35(2) p.16-26
Nelson, LG "Managers and Enterprise Bargaining: Some Preliminary Findings." Asia Pacific
Journal of Human Resources, 1997, 35(1) p.53-64
Fiss, O "Against Settlement", 93 Yale L J (1984) 1984
Costa, M Duffy, M Labor, Prosperity and the Nineties: Beyond the Bonsai Economy. Sydney:
The Federation Press, 1991
Peetz, D "Unions, Conflict and the Dilemma of Co-operation" Journal of Industrial Relations,
1996, 38 (4), p.548-570
SECTION 3: 3.1
Enterprising Nation: Renewing Australia's Managers to Meet the Challenges of the
Asia-Pacific Century [Executive Summary] ["Karpin Report"][1995]
Nelson, LG "Managers and Enterprise Bargaining: Some Preliminary Findings." Asia Pacific
Journal of Human Resources, 1997, 35(1) p.53-64
Note from Negotiation Assignment: Allen, D Issues in Training in Negotiation Skills for an
Organisational Setting. [Unpublished] Assignment for course work on Negotiation for the
UTS MDR, June, 1996
NOTE 1: HAVING A CULTURAL MILIEU FOR PRACTISING NEGOTIATION SKILLS
Just as negotiation, as a skill, is poorly recognised in the workplace in
interpersonal exchanges, so, negotiation is not readily recognised as
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occurring elsewhere, in the whole range of life activities.
Further, in the area of commercial transactions, in the name of
"efficiency", our western culture has, by and large, removed the
opportunity to practice and develop this skill.
The oriental culture, with its emphasis on relationship rather than
efficiency, and a different conception of time, persists with the
marketplace and the barter.
It is here, in day-to-day transactions, on a small scale, that a person
practices and refines their negotiating technique. This is gone from
our fixed-priced supermarket.
Then, when the time for negotiation comes, with the big ticket item, we
are not well equipped to deal with it, and often come away
disappointed.
When the big ticket item is a construction in time, (the first and last
home) with the flexibility to make changes as the construction develops,
then there is the potential for poor negotiating skills, and inadequate
communication and documentation, to create the context for a big fight.
Hence our Builders' Services Corporation appeals mechanism.)
Fisher, Roger & Ury, William "Getting to Yes: Negotiating an agreement without
giving in." London: Century Business, 2nd ed, 1991.
3.2
Fells, R "Enterprise Bargaining and the Process of Negotiation: A Case Study" Journal of
Industrial Relations 1995, 37 (2), 218-235
Friedman, RA "Missing Ingredients in Mutual Gains Bargaining Theory." Negotiation Journal
July 1994, 265-280
Fisher, Roger & Ury, William "Getting to Yes: Negotiating an agreement without giving in."
London: Century Business, 2nd ed, 1991.
3.3
Costa, M Duffy, M Labor, Prosperity and the Nineties: Beyond the Bonsai Economy. Sydney:
The Federation Press, 1991
Quinlan, M "The Reform of Australian Industrial Relations: Contemporary Trends and
Issues." Asia Pacific Journal of Human Resources, 1996, 34(2) p.3-27
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Freebairn, J "A More Effective Labour Exchange System" in Dialogues on Australia's Future.
Melbourne: Centre for Strategic Economic Studies, 1996
Raffles, PJ Enterprise Bargaining Relationships and the Conflictual Nature of Industrial
Relations: A Troubling Composite. [np]: January, 1995
3.4
Raffles, PJ Enterprise Bargaining Relationships and the Conflictual Nature of Industrial
Relations: A Troubling Composite. [np]: January, 1995
Employee Relations Update, 1997, 4 (83) p.1
Peetz, D "Unions, Conflict and the Dilemma of Co-operation" Journal of Industrial Relations,
1996, 38 (4), p.548-570
other articles mentioning and/or dealing with the issues of trust and collaboration are:
Freebairn, J "A More Effective Labour Exchange System" in Dialogues on Australia's Future.
Melbourne: Centre for Strategic Economic Studies, 1996
Peetz, D "Unions, Conflict and the Dilemma of Co-operation" Journal of Industrial Relations,
1996, 38 (4), p.548-570
Nelson, LG "Managers and Enterprise Bargaining: Some Preliminary Findings." Asia Pacific
Journal of Human Resources, 1997, 35(1) p.53-64
Fells, R "Enterprise Bargaining and the Process of Negotiation: A Case Study" Journal of
Industrial Relations 1995, 37 (2), 218-235
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ATTACHMENTS
These attachments gather together an indication of the nature and extent of my previous work
on issues associated with disputes in the workplace.
ATTACHMENT 1: ABSTRACTS OF ASSIGNMENTS FOR MDR STUDIES, 1996/7:
1. EQUIPPING STAFF TO HANDLE DISPUTES EFFECTIVELY IN LOCAL GOVERNMENT
ABSTRACT:
This paper seeks to address the task of equipping local government staff to effectively handle
disputes that arise in the workplace.
The paper seeks to do this by:
1. reviewing the context of local government
2. reviewing the nature of disputes that present in the local government
workplace
3. identifying the skills required in dealing with those disputes
4. looking at the training required to develop those skills
5. reviewing the current training that is readily available to local government
6. considering the development of dispute handling systems appropriate for a
local government body
7. considering a training plan to develop dispute resolution skills, for a local
government body
8. reviewing some of the literature of dispute resolution to see what insights may
be provided from this alternative source
2. ISSUES IN TRAINING IN NEGOTIATION SKILLS FOR AN ORGANISATIONAL SETTING
ABSTRACT:
This report seeks to explore the issues arising from the consideration to provide training in
negotiation skills in the workplace.
The report does this by:
1. reviewing impressions and implications from personal experience of
negotiation skill training
2. reviewing recent literature on the subject
3. seeking to apply these reflections to the task of determining curriculum and
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presentation - training techniques.
The report notes the nature of effective negotiation skill training: with its inherent
"interpersonal" aspect and the reliance on experiential learning, often in the context of a
simulation, or role play.
Since interpersonal (and hence negotiation) skills are reflected in behaviour, and behaviour is
instructed by the formation of self-concept (the intrapersonal), the individual needing such
training most is the one who has a dysfunctional behaviour formed as part of their
self-concept.
To change this behaviour requires framebreaking and new frame formation. This is a task
which is complex; takes time; and will require significant effort by participant and trainer,
with the trainer especially on notice to sustain a model of consistent pattern of behaviour
congruent with the new frame, and to provide instruction on the new frame of perception and
approach and reinforce congruent behaviour in the participant when it is attempted.
The risk of effective framebreaking is that it may include psychological breakdown.
In that event, if the training has been sponsored by the organisation, then the organisation has
some responsibility for having contributed to the breakdown.
Without adequate management of the training, the events, and the consequences, and
adequate support to maintain the individual while the new frame is constructed, the
organisation could be held responsible for negligence through current occupational health and
safety legislation.
Planning and delivering such training, if required of the organisation, is then a very sensitive
issue, requiring support mechanisms not always associated with a typical training program.
3. FACILITATION: THE USE OF MEDIATION TECHNIQUES & PROCESSES IN RESOLVING DIFFERENCES IN GROUP DECISION-MAKING
ABSTRACT:
The task of facilitating group endeavour is particularly relevant to current social conditions.
It is important in the development (or maintenance) of organisational effectiveness.
For those involved in, or associated with, local government, community consultation and
participative decision-making is becoming an increasingly important part of responsiveness to
community expectations. The new legislative context delivered by the Local Government Act,
1993, makes such things part and parcel of the local public policy process.
Facilitation is beginning to be seen as a significant tool in such consultative and participative
contexts.
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Its capacity includes an ability to assist in conflict management, or dispute resolution if
necessary, having a role to play in helping communities deal with differences which might
otherwise develop into debilitating disputes.
This report seeks to
1. explore the nature of facilitation of group activity and
2. give some consideration to the task of developing facilitation skills for use in
the workplace (especially as applied to local government).
It does this by:
1. looking at the activities and processes used in the alternative dispute resolution
process of mediation, and
2. identifying how much common ground there is between mediation and the
activities and processes used in facilitating group processes and group decision
making.
It then looks, in some detail, at the present level of understanding of group processes.
The report then seeks to gather this, and other study*, together and to conclude with a
consideration of the basic requirements in the development of knowledge and skills for
facilitators. (The knowledge and skills identified are obviously useful, and applicable, to the
mediation of multi-party disputes.)
(*Other study: "Equipping staff to handle disputes effectively in local
government" - Assignment for Dispute Resolution Unit, May 1996)
4. LEARNING FROM THE EXPERIENCE OF DISPUTES AT SHELLHARBOUR CITY COUNCIL.
ABSTRACT:
This paper looks at a number of experiences that Shellharbour Council has had with disputes
over the period 1974-1996. These experiences are generally illustrative of the context of
disputes in local government.
From a review of this experience it is apparent that Shellharbour Council, since 1974/5, is an
organisation which has generally been open to different ways of dealing with disputes.
The organisational learning process, derived from these experiences, over this period, has
tended to set a relatively progressive culture for handling disputes.
Nevertheless, given the context of change in local government, and continued growth and
complexity of issues that Shellharbour Council can anticipate facing in the future, there is
room for a more strategic effort to improve its present performance. The "case studies"/
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experience then form a resource from which the organisation can continue to learn for such
improved performance.
5. LESSONS TO BE LEARNED FROM THE EXPERIENCE OF DISPUTES IN THE CONSTRUCTION INDUSTRY
ABSTRACT:
The main theme of this submission can be described in the adage:
"Those that do not learn from history are condemned to repeat it."
The analysis involves looking at the experience of the construction industry and disputes:
the nature of the disputes
the source of the disputes
the endeavours to deal more effectively with disputes
to see if there are lessons to be learned, warnings to be taken.
The particular application of any such lessons is to local government, where:
the present context of local government involves significant pressures for change,
one such pressure is the challenge of competition.
This challenge, which appears to promise transformation of the present mode of local
government operations (in order to deliver on the industry obligations to the National
Competition Policy), is but one manifestation of the current debate on the role of the
government in a market economy.
The lessons learned from the experience of the construction industry may serve to instruct this
debate.
6. NATURE OF CONFLICT & ITS ROLE IN SOCIETY
ABSTRACT:
This assignment seeks to explore the basic psychological concepts illuminating an
understanding of the nature of conflict and its role in society.
The stimulus for this choice comes from my personal focus on the theme of the training
required to equip people to handle disputes effectively, and takes up a part of the challenge of
Astor and Chinkin to explore one of the basic theoretical issues underpinning the study of
dispute resolution.
The constraints of the assignment mean that the theoretical study is limited and relies heavily
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on current literature in this area.
The task of applying this understanding is also addressed, with particular reference to the
local government workplace. In this way it builds on previous work. Some specific aspects
of application have been dealt with a bit more fully, with the results indicated in the
bibliographic notes and attachments.
The assignment concludes with a brief review of the implications of these findings for the
training of people involved in handling disputes as a part of their workplace (etc) function.
ATTACHMENT 2: CONCLUSIONS OF ASSIGNMENTS FOR MDR 1996/7:
1. EQUIPPING STAFF TO HANDLE DISPUTES EFFECTIVELY IN LOCAL GOVERNMENT
CONCLUSION:
Then, as I have compiled this report, with its focus on skill formation and development, in the
local government industry, the bibliography charts another strand of literature survey.
The most recent comprehensive survey of this area is provided in either
Mary Power's article in the Australian Dispute Resolution Journal (1992) 3 (214-226).
or
Astor & Chinkin's "Dispute resolution in Australia".
My conclusions, from the information in the sources reviewed, are:
1. The key areas, where skill development is needed, for effective dispute
resolution are:
1.1 the interpersonal skills of:
1.1.1 communication
1.1.2 perceiving emotions
1.2 negotiation skills
1.3 analysis to help clarify interests
1.4 invention and creativity in devising realistic options
1.5 organisational and planning skills
2. The key areas, where knowledge development is needed, for effective dispute
handling are:
2.1 interpersonal knowledge
2.1.1 self-awareness & personal development
2.1.2 other-awareness
2.2 alternative strategy knowledge for
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2.2.1 negotiation
2.2.2 counselling
2.2.3 mediation
2.2.4 training
Training? If you can handle disputes effectively and know how and why - then teach others
to do it as well!!
2.3 ethical norms knowledge for
2.3.1 personal behaviour
2.3.2 other party behaviour (including cross-cultural knowledge)
2.3.3 codes of conduct for negotiation, counselling, mediation,
training
2.3.4 the community standards expressed in current arbitration/
litigation
3. The key areas, where the development of theoretical understanding is needed,
for effective dispute handling are:
3.1 nature of conflict and its role in society
3.2 nature of power
3.3 nature of human beings
3.4 nature of learning
2. ISSUES IN TRAINING IN NEGOTIATION SKILLS FOR AN ORGANISATIONAL SETTING
CONCLUSION:
The implications for organisations involved in delivering training in negotiation skills which
includes the experiential component are:
1. to exercise care in selecting the mechanism/ providers - provide for as many
different options as possible
2. to exercise care in selecting/ compelling staff to participate - again, provide as
much choice of vehicle of delivery as possible
3. to provide ancillary support by way of time and additional independent
professional input if required by the individual
THE OPTIONS:
There is always the option for an individual to learn whatever they can, however they can,
when they want.
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Whether an organisation chooses to train in this area, or not, the individual can still choose to
search for, and access, such training.
Sources include:
1. the good read
2. one-day "exposure" seminars often delivered by the commercial training
enterprises
3. longer, but still short, focussed course/ seminar/ workshops delivered by the
commercial training sector
4. short, focussed courses delivered by tertiary institutions as part of another,
wider course curriculum
5. something more intensive and accrediting in negotiation skill and/or skill
training, like the Harvard Negotiation Project course/s
THE ORGANISATIONAL OPTIONS:
For the organisation, embarking on the process of delivering such training, there are a number
of options:
1. leaving and/or motivating the individual to "go outside and get it"
2. providing access to outside training in this area - letting and/or motivating the
individual to volunteer
3. providing it "inside" to the individual volunteer
4. accessing outside delivery, and sending conscripts
SEE NOTE 8 IN BIBLIOGRAPHY
5. providing the training inside and conscripting participants
But in the end, the organisation must say:
"There'll be no promotion this side of the ocean"
If the organisation is convinced that it needs, for organisational development, to go down this
track, it must:
1. seek to link good performance in interpersonal skills to its organisational
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rewards
2. then make available training in one or more of the above modes
3. set the parameters for expecting delivery in on-the-job performance
post-training exposure
The application of these principles is explored in ATTACHMENT 5.
3. FACILITATION: THE USE OF MEDIATION TECHNIQUES & PROCESSES IN RESOLVING DIFFERENCES IN GROUP DECISION-MAKING
CONCLUSION:
It is worth remembering that any member of a group is able to "facilitate" the group process,
and may often do it intuitively. Such activity can be a vital component of preventative
measures in the process of handling/ minimising disputes in an organisation, while benefitting
from the potential of diversity.
For the person/ member of an ongoing group, seeking the long term health/ effectiveness of
the group, and wanting to assist in a more informed way, knowledge of group behaviour
assists; knowledge of the variety of facilitating processes available, helps.
For the organisation wishing to enhance its effectiveness, it needs to be said such training,
delivered across the widest spectrum of the organisation, will improve performance in
handling differences creatively. This in turn is likely to improve the quality of its decisions
and services.
An indication is given in Attachment 6 of current bibliographic sources which could be
accessed to deliver such information and experiential training.
4. LEARNING FROM THE EXPERIENCE OF DISPUTES AT SHELLHARBOUR CITY COUNCIL.
CONCLUSION:
From the current study of disputes and dispute resolution it can be seen that a number of
principles and issues need to be addressed in any training context seeking to equip
participants to handle disputes which they may become embroiled in as a natural component
of their work obligations.
The principles and issues are:
1. communication techniques
1.1 active listening
1.2 effective questioning
1.3 perceiving emotions
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2. negotiation techniques
2.1 positional bargaining
2.2 interest-based negotiation
3. the range of procedures available to undertake dispute resolution, and their
fundamental components:
3.1 fair process - all parties being heard
3.2 role of any third party - neutral
3.3 determination of the matter on the basis of accepted (known and
explainable) objective criteria
3.4 selection of process appropriate to the nature of the dispute
3.5 the timing of the dispute resolution intervention - ripeness of dispute
4. components that lead to escalation:
4.1 faulty process - perception of bias
4.2 poor or bad timing - unreasonable delay
4.3 initial response - not respecting legitimacy of complaint, right of
complainant to raise the matter
5. strategic interventions:
5.1 questioning for clarification
5.2 rephrasing or reframing for perception development
5.3 private caucus
5.4 instruction on process
5.5 option generation - hypothesising
5.6 maintenance of self-esteem - mutualising, normalising
5.7 reality testing
6. the third party role:
6.1 mediator
6.2 facilitator
6.3 conciliator
6.4 arbitrator
6.5 adjudicator
7. the role of power and its use in dispute resolution
8. the role of "rights" and the use of "rights" in dispute resolution
9. the nature of differences arising from gender, language, ethnicity, subculture,
different value systems, etc
As mentioned previously, the current literature on organisation learning, highlights the need
to use, and the advantage of using, these experiences as a learning resource. (See Section 1.3
and the associated bibliography.)
Any program developed around a more deliberate use of this experience delivers the
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following outcomes:
1. it gives recognition to past actions, past successes
2. it opens up past actions to scrutiny/ review of effectiveness
3. it provides a context and framework for double-loop learning
When such a learning process is undertaken for one area of an organisation's operations, and
found to be effective, the organisation may also learn to use the same process and apply it to
other areas of the organisation's learning.
Whether or not the experiences are tapped in such a way, they do form part of the
organisation's "group memory". They form part of the "accepted culture" - the way we do
things around here.
Tapped as a learning resource, the experiences become more deliberately embedded into the
organisational culture. This means that the handling of the experiences, to expose the
learning opportunities, needs to be itself carefully analysed and planned, and presented in the
context of appropriate supportive skill building to enable more effective approaches to be
considered and then explored in other dispute situations.
The following instances give a brief overview of key disputes within Shellharbour Council's
experience, together with an identification of the lessons which may be learned from/
illustrated by them.
5. LESSONS TO BE LEARNED FROM THE EXPERIENCE OF DISPUTES IN THE CONSTRUCTION INDUSTRY
CONCLUSION:
As raised in the beginning:
"Those that do not learn from history are condemned to repeat it."
There are enough lessons from the construction industry (and other case studies from the
commercial/ corporate world) to indicate that competition, while increasing efficiency, has its
downside/s. One such downside is the heavy cost of increased disputation.
Local government in NSW will be well advised to hasten slowly with dealing with the current
pushes to "commercialise" its operations.
Local government needs to seriously and clearly look at just what its objectives are, what its
community does really want from it.
Local government then needs to be flexible in how it chooses to deliver those goals.
One option, when value for money is involved, and measurable services are to be delivered, is
that of using the best practices of the commercial arena, one of which is competition in a
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free market.
When equity and democratic values are in view, the process of developing best practices for
government enterprise will be required.
When there is competiton for resources (within a limited revenue base, raised by taxation, and
between "economic" services and "community development" processes of equity and
democratic participation) local government will need to be involved in giving clear leadership
to and in the debate to allow the community to make an "informed choice". There is
currently less and less room available for any local government entity to make a mistake by
overlooking the by-products (or unintended consequences) of certain of the choices now
facing us.
While there are now a range of ways to deal with disputation, (compared with previously, and
especially as applying to break downs in contractual arrangements) the adage of: "prevention
is better than cure" would still seem to have much to commend it.
6. NATURE OF CONFLICT & ITS ROLE IN SOCIETY
CONCLUSION:
Psychology, as a discipline, contributes much to our knowledge of mental processes and
behaviour.
Mental processes and behaviour play a critical part in conflict and its resolution.
The practitioner, interested in increasing their ability to assist with the resolution of conflict,
whether at the individual level (intrapersonal and interpersonal) or the societal level
(interpersonal and intergroup/ international), needs to have at least a basic knowledge of these
insights.
The practitioner also needs to have a good idea of where to go for additional information
and/or assistance with conflicts which do not readily yield to the application of typical
intervention strategies in a straightforward, rational, interest-based negotiation, with a
possible win-win outcome.
The mature and professional practitioner is one who is applying a meta-cognitive approach to
their own mental processes and behaviour, in order to achieve greater levels of integration
and congruence in their own personality, and greater effectiveness in the modelling they do
and the techniques they apply in undertaking a facilitative role in any dispute resolution
context or process.
I would go so far as to say that in preparing people to contribute in a professional way,
whether formally or informally, in dispute resolution processes, basic training should include
exposure to the basic concepts of mental processes and behaviour coming from psychology
and how they impact on a conflict and its interactions.
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I would go further. In reviewing the development of a staff training curriculum for the local
government workplace, to provide training to assist staff deal effectively with disputes in the
workplace, I would say that such training should
• include opportunities to undertake formal studies in basic psychological
concepts, and
• provide guidelines for the acquisition/development of such knowledge as it
applies to a conflict situation/ interaction.
SEE ATTACHMENT 13
ATTACHMENT 3: EXECUTIVE SUMMARY OF "EQUIPPING STAFF TO HANDLE DISPUTES EFFECTIVELY IN LOCAL GOVERNMENT"
This report looks at the task of equipping staff to handle disputes effectively in Local
Government.
The current environment for the provision of Local Government is one which, like the rest of
the world (Alvin Toffler's: Future Shock [1971]!!!), is undergoing significant and rapid
change. (Section 1)
This level and rate of change is developing its own special pressure. That pressure is
increasing the potential for significant and damaging disputes at both the internal and external
interface. (Section 2)
In such an environment, the ability of staff to handle disputes effectively becomes a critical
feature of a Council's capacity to respond. The equipping of staff with such knowledge,
skills and appropriate mechanisms to deal with disputes then becomes a strategic task for a
Council. (Section 2)
This strategic task arises in an organisational context which to some extent is poorly equipped
to deliver what is needed. (Section 1 & 5)
The formation and development of local government and its human resources, till now, has
been characterised by limited, and self-limiting access to expertise with interpersonal
interactions. (Section 1, 4 & 5) [See note below.]
The recent experience of local government with award restructuring has highlighted this gap.
(Section 3)
The lack of human resource professional expertise in the industry generally; a dramatic and
radical change in the industrial milieu; the devolution of responsibility for employee relations
to the local level of the organisation have all conspired to challenge previous well-entrenched,
if not totally effective, structures and relationships. (Section 3)
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However, this development is also capable of being the major tool for the solution to the
problem.
The focus in the skill-based award on:
1. the identification of skills required in the workplace;
2. the incorporation of incentive and appraisal of performance prior to delivering
such rewards; and
3. an insistence on the formulation of a corporate training plan
can all contribute to the task before local government: to build those interpersonal skills,
knowledge and consistent behaviours which equip staff to handle disputes effectively in the
workplace and beyond. (Section 3)
There needs to be a clear recognition that what is required is:
1. a vision of an organisation where the pervasive culture is that the management
of disputes is undertaken, as far as possible, by the first receiver being able to
take effective action to resolve differences before they become disputes
2. structures (policy and practice) that reinforce this culture:
2.1 recruitment and promotion: on merit, focussing on interpersonal skills
as well as (and with a higher weighting than) the usual technical areas
2.2 induction: majoring on authority and accountability in dealing with
interpersonal aspects of difference, and the solving of problems,
including the relationship component, on the principle of a mutually
balanced interest-based collaboration
2.3 corporate focus on generic training relevant to the development of the
skills, knowledge and consistent behavioural responses required to
achieve these objectives
2.4 a performance management focus to reward the effective application of
such knowledge and skills, and to reward, even more, the effective
training of others in such knowledge and skill areas (the relevant level
of training responsibility being devolved to all staff)
2.5 appropriate delegation of responsibility to act
2.6 appropriate flexibility, from broadly framed policy objectives, to give
guidelines which allow staff to make consistent, and responsive,
decisions
(Section 2 & 7)
Once the vision is accepted there are any number of resources, and sources of external
expertise, that can be brought to bear on the realising of this vision: the development of such
an organisational culture. (Section 5)
The current developments in the alternative dispute resolution field instruct such a task.
(Section 6 & 8)
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Note: The political adept in local government has generally reached that level by trial, with
minimal errors. These are the people who come into local government with (and/or
develop over time) a finely tuned "intuitive" sensibility for interpersonal realtionships
(the so-called innate interpersonal skills). This often allows them to build a network
based on personal attractiveness and loyalty. These skills, especially when able to be
applied effectively in a potentially disputatious situation, and which then extricates a
colleague, or a political master, from a damaging mistake, or major political
embarrassment, then builds a credit balance of implicit favours, for calling in at the
right time.
For the staff not so well-equipped, the prospect continues to be swim or sink.
But this, of itself, is not a peculiar situation for local government. The traditional,
Australian Anglo-Saxon culture, and educational system, does little to assist with the
formation of functional interpersonal skills.
ATTACHMENT 4: EXTRACTS FROM "EQUIPPING STAFF TO HANDLE DISPUTES EFFECTIVELY IN LOCAL GOVERNMENT"
3.2THE DEVELOPMENT OF THE LOCAL GOVERNMENT (STATE) AWARD, 1988-1996:
3.2.0 National thrust:
The National Wage Case, in 1988, was a response to "Australia Reconstructed". This was
the report of a mission of government, union and employer representatives which investigated
contemporary labour market policy and practice in Europe. This National Wage Case
enunciated what were called "Structural Efficiency Principles". These principles were to
guide changes in awards and cases for changes in pay for the foreseeable future. These
principles then flowed into the NSW State Wages determination for 1988, and so began the
process of award restructuring.
The Structural Efficiency Principles were designed to change the industrial context of
national wage increases. Prior to then, increases were based on adjustments to CPI, with
occasional "work value" cases and reviews. The Structural Efficiency Principles, together
with the Economic Reform Agenda, sought to deliver something which might allow
Australian workplaces to develop in a way to become more internationally competitive.
3.2.1 The parties to the Award:
There are 7 parties to awards governing employment in local government in NSW.
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They are:
1 Local Government & Shires Association (the association of employers,
registered as the representative party for employers in the awards covering
work & employees in local government in NSW- "LG&SA") and the
2 Local Government Unions
2.1 Municipal Employees Union (MEU) representing Wages & Salaried
Divisions;
2.2 Health & Building Surveyors' Association (HABSA);
2.3 Local Government Engineers' Association (LGEA); and
2.4 Local Government Clerks' Association (LGCA)
2.5 Electrical Trades Union of Australia
2.6 NSW Nurses Association
3.2.2 The Development of the Award:
In May 1989, the first 5 groups (1 & 2.1-2.4 as above) committed themselves to a
fundamental review of the awards applying to work and employees in local government. The
review was in order to achieve the objectives of the Structural Efficiency Principle which was
established in the State Wage Case in August 1988.
By September 1989, this commitment expressed itself in the joint commissioning (LG&SA
and the four key Local Government Unions) of a Skills Audit and Analysis. The Department
of Further Education, Training & Employment (formerly D.I.R.E) provided the parties with
funding assistance to undertake the project. OCR (Organisation Consulting Resources Pty
Ltd) was commissioned to do this study.
In October 1990, OCR delivered its report, and the LG&SA and the four Local Government
Unions began the process of negotiating the restructuring of the five to eight awards current at
the time into a single, skills-based award.
The consent award, covering MEU Wages Staff, MEU Salaried Officers, HABSA, LGEA &
LGCA, but not covering the Electrician's Award or Nurses' Award, was finalised in December
1991. This award had an operative date of 8 June 1992 for the payment of new rates arising
from the application of the award. This allowed a six months implementation period for the
transfer to the new award structure.
What had existed until then was some seven or so awards with:
1. rates of pay for job classifications;
2. with some clear expectations of pre-requisite qualification in some areas:
2.1 technical qualifications (eg trade certificate, technician certificates
(now Associate Diploma level);
2.2 professional qualifications undergraduate degrees - health surveying,
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town planning, engineering, librarianship, etc;
3. and some mechanisms to recognise progressive development of skill/
knowledge on the job through -
3.1 incremental scales in the clerical area (14 years);
3.2 shorter (3-5 years) incremental scales attached to basic pre-requisite
qualifications associated with technical & professional areas.
What resulted from the restructure was a four band designation of work in local government:
Band 1 - Operational;
Band 2 - Administrative/ Trade/ Technical;
Band 3 - Professional/ Specialist;
Band 4 - Executive.
These bands were then broken into a number of levels:
Band 1 - 4 levels;
Band 2 - 3 levels;
Band 3 - 4 levels and
Band 4 - 4 levels.
Band 1, Level 1 was specifically designated with nine pay rate steps and allocated to
"training"/ "trainee" use.
While Bands 2 & 3 related most clearly to externally recognisable pre-conditions of
qualification, the award enunciated the principle of progression through the levels by the
acquisition and development of skills.
It was anticipated that the competency-based training development process would
complement the award, and other personnel processes, at the council level.
A "Local Government Award Restructuring Implementation Kit" was produced by the
LG&SA, and endorsed by the participating unions. In this there was supportive material,
developed as a resource kit for the councils, to instruct their implementation process.
This espoused:
accreditation,
on-the-job training,
recognition of prior learning and the
development of career paths, as ancillary outcomes of the new award.
Indeed, that potential is there.
At this stage, the industry, and its associated partners in the process, are still struggling with
the process of making that a reality.
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3.2.3 Key Outputs of the Award:
The key outputs associated with the change were:
1. the commencement, at the peak body level, of a far more open process of
consultation and participation in drafting the new award
2. the contracting of and use of independent technical expertise: OCR analysis ->
Skill descriptors
3. the development of a reference body, of human resources professionals active
within the industry, to advise, and provide responses to the independent
consultants and so contribute to quality control/ as well as gain from the
educative aspect of the project
Some of these processes then "filtered down" to the local autonomous organisation level.
This peak organisation "modelling" of the process, was in my view, critical to the impetus for
the new level of change, and to the process of the formation and practice of the development
of local consultative & participating mechanisms.
3.2.4 Training for the Industry to Complement/ Assist with the Process of
Implementation:
Given that this award represented such a significant change with a major component of the
industrial context of local government, there was also a proportionate effort applied to
training/ briefings to prepare local government, both management and staff, for the change.
The briefings commenced in 1990.
Once the form of the award was closer to finalisation, the briefings stepped up. The Institute
of Municipal Management, and a number of other parties, (including groups representing the
professional interests at local government, especially) prepared material for, and delivered
briefings to their members.
The NSW Local Government Industry Training Committee developed training for council
staff and elected representatives who became involved in the local Award Restructuring
Consultative Committees.
An indication of the content and thrust of this training, delivered mostly in 1992, is detailed in
Attachment 1.
Key elements of this training included guidelines on how to build consensual
decision-making [communication & negotiation, etc] and how to conduct and contribute to
effective meetings.
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3.2.5 The Implementation of the Award:
The implementation of this award has proven to be a long-term project.
One of the reasons for this has been alluded to previously. The local government industry,
because of its individual authority autonomy, and diversity of size (and hence level of
organisational development) even by 1988, still had a fairly low level of professional
personnel knowledge and skills at its disposal.
The award endeavoured to address some of this gap by making some elements of personnel
activity, if not mandatory, possible. These included:
training plans;
performance systems;
a locally determined reward system;
mechanisms to review and adjust workplace patterns.
3.2.5.1 The first step:
The process involved in the first step of the implementation of the award required the
designation of each position in the workforce into one or other of the bands and levels, noted
in Section 3.2.2, and determined by the mix of skills required to be exercised in the position.
The award then nominated minimum entry rates of pay for the 15 levels.
As an employee's position was designated, they were entitled to carry over their current
remuneration from the previous single rates for specified classifications, together with any
additional payments related to allowances, etc.
This total was then compared to the minimum rate for the band and level designation, and
some employees were then entitled to a pay increase.
The "increments" between the weekly minimum rates for the levels were quite significant.
They were of the order of $45-51 per level in Band 1, and $200 per level in Band 4. By
comparison, previous differentials in classifications were as small as $4 per week; while
increments, from annual service, were as small as $5 in some cases.
Within the process of "transfer", councils were obliged to analyse work, comparing it with the
set criteria in the skills mix that defined the Band and Level.
The guidelines given in the implementation kit, and the training given to people selected and
elected to participate in the Award Restructuring process (by being the formal representatives
on the Consultative Committee) sought to engage staff in this evaluation.
The purpose of this involvement was two-fold:
1. to engage the staff by their participation,
2. to provide some mechanism to review managerial decisions.
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Consequently, most councils provided a formal appeal mechanism and process related to the
designation.
The award provided for an externally formed committee of review to deal with appeals that
could not be satisfactorily resolved at the local level.
For many Councils this was the first time that staff had engaged in an activity, jointly with
management. The activity had an element of personal significance for the individual. And
now there was a formal, internal, avenue of review, for the first time. It was the probably the
first time, for many staff, that they had exercised such an option.
The external body for review was a longstanding mechanism - to wit: the NSW Industrial
Commission.
Now the decisions were local. The appeals were local. The resolving of differences, or
conflicts, now resided, primarily, locally. This constituted a major "sea change" in culture
for most councils.
3.2.5.2 The Second Step:
For most councils, the second step in the process involved the finer tuning of the work
evaluation.
This required the definition of a smaller increment of skill mix than that involved in the
"coarser" skill descriptors for the bands and levels. Then the council was able to designate a
smaller differential for the starting rate of pay for positions which fell in the same level.
These intermediate steps were usually called "grades". This appeared to be important for
staff, with their finely developed sense of equity/ inter-job relativities/ self esteem/status,
especially coming from the smaller differentials of the old classifications-based award.
Then, (the award required, and) the technical advice recommended that Councils establish a
salary system, to supplement the minimum rates, to provide incentive to the employee. The
incentive for an employee in a position would be to obtain extra skills appropriate to
organisational needs, whether or not promotion opportunities were available, and/or to
improve performance. Additional pay would be available for additional skills or
performance.
Typical council decisions set the salary range for a grade, within a level, within a band, at a
quantum of 15-20% on top of entry rate. The councils were then committed to deciding the
criteria necessary to qualify for additional pay within that range.
3.2.5.3 Other Developments
For those Councils which had taken previous action on evaluating positions and formalising a
pay structure reflecting these evaluations, and so had a more satisfactory pay system in place,
or which had worked at other areas of personnel policy and practice, the new award allowed
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them to go whichever way commended itself to their organisation.
Wyong, for instance, had commenced a process of workplace reform. The new award
allowed the Council to deliver pay from productivity improvements from that reform.
Wyong continued to focus its effort on this aspect.
Liverpool Council was interested in enhancing its staff training mechanisms, and so has spent
considerable effort in enunciating competencies for skills required.
Sutherland Council was able to work at formulating and formalising enterprise bargains with
its staff, involving workplace change, and resultant productivity improvement to finance the
pay and conditions agreements.
Wollongong & Newcastle also (were able to and) moved more quickly into the enterprise
bargain.
3.2.5.4 Current Developments in the Local Government (State) Award
1995 saw a formal variation to the 1991 award adopted.
These variations delivered:
1. pay increases from
1.1 "market adjustment" - a percentage increase similar to that won by a
number of sectors of the NSW Public Service
1.2 trading-off certain conditions - annual leave loading; bank holiday;
allowances for holding driver's, etc. licences
1.3 incorporating the national wage case safety net adjustments
2. variations to significant clauses
2.1 portability of 13 weeks accrued sick leave within the industry
2.2 redundancy provisions including consultative process
2.3 bringing the "merit" principle of appointment and promotion into line
with the Local Government Act, 1993
2.4 increased flexibility of work patterns - job sharing permitted
2.5 expansion of permissible traineeships and relevant training wages
2.6 a revised grievance procedure
The variation of the award was instigated by the LG&SA. The original log of claims sought
to obtain even more flexibility in the common award.
One of the "pushes" for the variations came from the fact that a significant number of
councils, both small and large, rural and metropolitan, hadn't effectively progressed the 1991
award. For this significant section of the industry there had been no pay changes since 1990.
This intransigence/ immobility proved to be very costly for other councils.
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The impact of the variation was quite significant:
1. The base-award-delivered increases jeopardised the independent development
of enterprise bargaining for those councils "in the process".
2. It tended to focus the emphasis, and effort, away from the local consultative
process back to the centralised "peak industrial players".
3. Earlier (December 1994) indications were that the parties were not making any
ground with these negotiations. Then, in January, a flurry of activity, from the
unions, (some in pre-election mode) delivered an unanticipated agreement.
Union members were advised before the council managements had
authoritative advice from the LG&SA.
4. The increases were well beyond what most councils had agreed to, in, and by,
the local consultative process, and were now "on top of" the outcomes of the
consultative process - causing much grief in the financial estimating/
controlling area of operations for councils devoting significant resources to the
local effort required for the implementation of the 1991 award.
The indications, from the senior LG&SA advisors, are that this variation to the base award is
likely to be the last to deliver major, broad-scale change. The additional flexibility, sought
in the log of claims, ran into too much of the "sacred cow" mentality of matters which are
apparently "non-negotiable" for certain sectors of the union representation. These changes
will now have to be cobbled at the local level.
3.8 EXPERIENCE OF THE PROCESS OF AWARD RESTRUCTURING AT SHELLHARBOUR COUNCIL:
A chronology of the various key activities involved with the implementation of the award
restructuring process at Shellharbour Council can be found in Attachment 8.
The impact of this process has been significant in a variety of ways.
As noted earlier, this has been the first "occasion" when there has been a formal recognition
of the right of staff to raise a grievance with a management decision, and a formal process to
review that decision. This has been an instructive process for those staff who have travelled
that route.
To date there have been four major hiccups in the deliberations of the Consultative
Committee:
1. There was confusion with the "overaward" payment, how it was incorporated
into the rate of pay with the transfer to the Bands and Levels, and then what
happened when the pay moves delivered with the job evaluation overtook that
rate. The matter was debated at some length early on, without being fully
settled, and then deferred until the job evaluation process was finished. By
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that time personnel on the Committee had changed. Lack of clarity in records,
and the misunderstanding/ lack of understanding of the consequences of the
process lead to a clear difference between the Wages Section and Management
representatives. A compromise position was eventually cobbled which did not
jeopardise the principles being espoused in the development and structure of
the new salary system.
2. There was debate on the scope of the Consultative Committee, and the process
of consultation and participation. This arose six months after the organisation
restructure in August 1992 - indicating some of the fear of the unknown/
uncertainty/ change factor - highlighting the failure of organisational
communications.
3. There was a difference between the Wages Staff Representatives and the rest
of the Committee on the process of accounting for the fringe benefit of the
private use of Council vehicles within the salary system. In this case, the
change-over of personnel had a part to play, since the representatives now
involved had not been party to the 1992/3 discussions on this matter. They did
not readily understand the principle of the "bringing into account". The matter
came up in a meeting when there was a time constraint on action which did not
readily allow for deferment. The objection therefore reflected a certain
element of jealousy between sectors of the workforce based on perceptions of
"perks".
4. The Wages staff representation has been dislocated by resignations, some in
the context of points/ times of industrial unrest.
One of the major concerns that I have with the effectiveness of this process, and its ongoing
capacity to deliver change, comes from its dependence on good communication, and the
absence of good communication techniques, processes and systems among the personnel
involved. The key communications which depend on such skills and organisational support
are:
1. from the Consultative Committee to the staff as a whole - formally and
informally
2. from staff representatives to their "electorate" and back again to the
Consultative Committee. Without an effective two-way conduit there isn't
effective consultation or participation.
3. the communication of key technical concepts from the professional staff to the
Consultative Committee membership
(The question is whether the nature of the material, the "technical" aspects of
personnel, and its pervasiveness and interconnectedness to the whole of an
organisation's operation, means that there is a natural complexity which is
difficult to simplify, and/or convey to all participants.)
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4. to what extent the length of this process (as with any major change process) is
likely to weary participants, and
5. where there is lack of results*, how quickly this wearies participants [* or a
perception of unproductiveness (the "what's in it for me" factor; or "I haven't
benefited yet, so why bother")]
A second concern of mine, for one section of the workforce, the Wages Division, is the
change wrought by this process from their previous experience of industrial deliberations.
For them, the "culture shock" takes the following form:
1 the prior experience of industrial process by wages staff was
grievance; -> gate-meeting; -> strike; -> negotiation; -> change = win
2 with the formation of the Consultative Committee there was a deliberate
decision at Shellharbour Council to keep separate the roles of Consultative
Committee representative and local union/ industrial dispute representative: to
retain two avenues of grievance/ redress
[Management did not object to this, since it represented starting a new
enterprise with a "clean slate". The "regular" union representative could raise
the "industrial" disputes through the "old avenue". The Consultative
Committee had enough to do with the implications of the implementation of
the new award, without being embroiled in any acrimonious, unrelated
disputes.]
3 the training for participation in the Consultative Committee included elements
of consensus building, especially in decision-making
4 the decisions at the Consultative Committee (by and large - there was one
instance when because of a time factor a decision was rushed) have been made
on the basis of consensus, or deferred and adjusted until the consensus is
reached
5 there is now no general down-time while a matter at difference at the
consultative committee level is resolved
6 there appears to be a perception amongst the non-participant staff in this area
that there has been no "fight", and no apparent "win". Therefore the
perception is that there must have been a "loss" or a "rollover" by the employee
representatives (the management perception is that this is not the case - the
employee representatives have held their ground and made significant gains in
their negotiating at the consultative committee level)
7 this has then led to a lack of continuing support/ or a commencement of active
opposition to staff representation leading to:
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7.1 resignations,
7.2 representation turnover,
7.3 loss of continuity of policy thrust from that sector,
7.4 the need for additional and substantial training inputs for new members
8 this loss of continuity/ expertise in expressing a position; negotiating through
issues; forming a compromise position (or moving to consensual option) has
then led to delay in resolving matters and so hampered progression to the next
stage
9 there has also been little evidence of either effort to, or success in, selling the
results to "electorate" (and given the obstacles, this is very understandable)
See Note 11 in Bibliography.
ATTACHMENT 5: EXTRACT FROM ATTACHMENT TO "FACILITATION: THE USE OF MEDIATION TECHNIQUES & PROCESSES IN RESOLVING DIFFERENCES IN GROUP DECISION-MAKING":
Group facilitation:
One of the groups where my role includes giving technical advice, and operating as the
"honest broker", is as an ex-officio member of the Award Restructuring Consultative
Committee.
This Committee was formed under the auspices of the Local Government (State) Award,
1991.
It is a consultative committee, with representatives from staff (unions) and management
(Divisional Directors and Councillors). The primary purpose of the Committee was to
consult on elements of the process of implementing the new award, with a new structure for
remuneration based on skills (as distinct from a single classification rate).
The process is part and parcel of the thrust for change in the industrial landscape moving
from centralised award agreements to enterprise based agreements in the context of the
federally encouraged micro-economic reform.
In mandating the formation of consultative committees (a significant departure from "usual"
practice for most local government bodies) the Unions and the Local Government & Shires
Association (the peak employer body) also sought to provide support to the industry, by way
of initial (and later support) training for consultative committees. [See detail in Attachment
3]
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Over the period since the formation of the Committee, there has been a number of devices
used to assist participation and consultation at various levels of the process. These include:
1. Briefings with external experts
2. Discussions related to the briefings, facilitated by the external expert
3. The formation of Subcommittees to meet separately, and discuss in depth
issues, and come back to the full Committee with recommendations
4. The provision of a pre-meeting gathering of staff to discuss amongst
themselves concerns: there are five different segments of the workforce
represented, with eight individuals, and at this stage little signs of any
coordinated effort to achieve common goals
5. At least two "facilitated", open discussions:
5.1 in March 1993 to consider options of enterprise bargaining versus the
"technical approach" of a refined skill-based job evaluation
5.2 in May 1996 to consider alternative options in defining ways of
progressing within the salary structure
For the March 1993 discussions, which I facilitated, a four stage process was adopted:
1. Initial report/ debate discerning that a more extensive discussion than usually
applies at the general meeting was needed to assist the committee determine
the best way to go
2. A detailed briefing of one of the subcommittees, augmented by interested
parties, with the external expert providing information on the most probable
option
3. A night meeting of the whole Committee, augmented by alternates, any
interested Councillors, any interested Directors or Line Managers. The
structure of this session was:
3.1 Overview of progress to date, summary of information from the
external expert
3.2 Division into ARCC Subcommittees and a committee of General
Manager and Councillors (not members of subcommittees), with
specific discussion questions to address
3.3 Reporting back of Subcommittee deliberations
3.4 Gaining of general indication of preferred way forward
4. Formal report back to the whole Committee at its next meeting, with a
recommendation for ratification, together with a proposed process and
timetable for its implementation.
For the May 1996 meeting which again I facilitated, the process involved:
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1. the raising of the issue in general terms, with some options identified, at an
ordinary Committee meeting, together with the recommendation that special
meeting be convened for the purposes of discussing the matter; and that staff
be canvassed for any other suggestions they might have
2. there were a number of staff meetings held when the matter under
consideration was raised, together with the basic concerns related to time to
undertake the process, resources, and likely outcomes, and the invitation for
suggestions formally put
3. one written staff submission was received; comments of options/ concerns
made at other staff discussions were collated
4. a business paper indicating the nature of the question before the Committee,
options at hand a week before, the openness of the meeting to receive any other
options, the task on the day of further brainstorming to create other likely
solutions, suggested criteria to evaluate options, and the fact that the meeting
would not be making a decision, but providing information for a further report/
formal decision-making meeting (to allow for any necessary reporting back to
constituents, gaining authority to settle on their behalf etc) was circulated
5. the Committee on the day was augmented by any other interested parties:
alternates; Union Representatives; a Union Organiser; additional management/
Councillors, according to interest
6. a room was prepared with
6.1 an open U-shaped tables and chairs for the participants;
6.2 three coloured boards
1. "Status Quo"
2. "The "Anglican" Position" (for the middle ground);
3. "Radical Change".
The boards were placed in the above order from left to right as seen from the
seated positions of the participants.
6.3 the notified options were placed on paper on one or other of the boards
6.4 the established criteria were noted on another board to the side
7. The options on the boards were spoken to briefly to explain their import. I did
this to allow for " no ownership" of one or other of the positions by either
management or staff
8. Additional options were then raised. These were drafted and placed on the
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appropriate board
9. When the group was satisfied that it did not want to add any more options the
discussion then sought to identify which options did not meet the current
criteria - and two additional criteria were developed: "timeliness" and "capacity
to measure productivity gains"
10. Eventually, close to the end of the meeting's scheduled time of closing, some
eleven (from a recorded 25) options remained under consideration. These
were then identified by numbering 1-11; and the numbering was done from left
to right: from board 1 to board 3.
11. Then to give the meeting some sense of "closure" to the discussion, to find if
there was enough common ground to proceed - but on the clear understanding
that the question of any binding decision was held over to the next meeting -
the participants were asked to nominate their top three preferences as 1, 2, 3.
These preferences were then collected and collated
12. From that poll it was evident that the "Present Course" Option, with or without
the "Similar Approach [to a Previous Stage]" was most favoured. Two
participants chose not to nominate their choice/s.
13. The matter was then reported back to the full committee: reporting all the
options, and the poll results.
14. One participant raised the question of a "contrived" result. It was not contrived
[by me] since the selected option was not the option which I personally
considered to be necessarily in the best interests of the council at this stage.
However, on reflection: the left to right order, the 1-11 numbering from left to
right, and the possibility of the pejorative nomination of the boards "status
quo"; "radical", etc could have been construed as "directing" the decision
making.
15. Since this issue was raised, the report to the full Committee made particular
effort to raise the question of the Committee's satisfaction with the process and
its nominal outcome, and if there was concern to keep the matter open for
further debate. This report also noted that further effort on creative problem
solving and effective consideration of the various party interests could yield a
collaborative effort to develop an option better than any of the options
considered on the day. Even on the day some had noted that the options
considered were not necessarily "mutually exclusive".
16. On the day of the decision-making meeting the matter was not further
challenged and the recommendations which implemented the "straw poll"
result were then adopted without further debate. The Committee accepted a
process that was promised to be at least two years in the accomplishment.
There was the formation of a separate Special Sunset Committee to consider,
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within that general option, which of a number of particular ways forward,
might best accomplish that option.
ATTACHMENT 6: EXTRACT FROM "LEARNING FROM THE EXPERIENCE OF DISPUTES AT SHELLHARBOUR CITY COUNCIL"
3.2 AN EXAMPLE OF AN INDUSTRIAL DISPUTE:
Direct negotiation is used to settle differences between staff and management, especially in
the areas of meeting staff needs by flexible/ creative exercise of discretion and agreement to
(usually short-term) change.
The direct negotiation may need to progress to negotiation facilitated by technical
representatives when the independent exercise of discretion (by management) is seen to be
"arbitrary" and/or "partial". The technical representatives can assist by first distancing the
parties and secondly by generalising the issue: so that it becomes a "class" matter, calling for
a formal enunciation of "policy". When the matter has then been agreed by the parties,
common rules are available to be applied similarly to all requests.
For example, when an individual needs to change starting & finishing times to meet personal
obligations, that can be arranged at the first line by the mutual agreement of the staff member
and their supervisor.
The regular change of starting times and finishing times to accrue "time in lieu" and to pool
enough leave for a roster day, which then becomes part of Council's normal operating pattern,
and available to all staff, required the process of:
1. presentation of a general staff claim;
2. initial considerations, by management of the request;
3. a decision by the council to reject the claim
4. a strike, and
5. further negotiations at this same level, when agreement was reached.
The claim commenced as a claim for "flexitime" for "salaried" staff, and a shorter working
week for "wages" staff.
The claim was made in the context of a growing penetration of more flexible working
arrangements in the public service, and a spill over of these conditions to some local
government bodies. (There may have been some agitation from the Union representatives to
approach the Council on the matter. The fact that other councils had agreed to such
arrangements tended to strengthen the local pressure/ position.)
The claim was firstly put by way of a formal written submission from the respective staff
union representative to the Council. The Council sought the response of management which
was not particularly clear on its position. The Council refused the request. The Indoor Staff
held a lightning stop work meeting and resolved on a half-day strike. This was an almost
unheard of event for Shellharbour Council. Negotiations were re-opened, and an agreement
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reached.
At the time the Council and staff settled at a level of "roster day" (19 day month, compared
with some other Councils where agreement was reached at a 9 day fortnight) that was
mutually agreeable, and the matter did not become a greater dispute requiring either
Conciliation or Arbitration in the NSW Industrial Court with the formulation of minimum
conditions as part of an industry award.
In 1992, following national developments in industrial relations, the Local Government
(State) Award provided for the formation of a Consultative Committee at the local level.
This committee, with representatives from the parties to the award, and management, is a
consultative forum for raising general staff matters. Its deliberations have been encouraged
to be determined on the basis of consensus.
LESSONS/ ILLUSTRATIONS:
1. Poorly informed negotiations with the parties having/ taking a position leading
to escalation
2. Use of power of numbers sparingly, tactically
3. Value of moving from antagonistic approach to partnership approach and
consensus decision-making involving all stakeholders
4. Exercising the capacity to cycle back to less formalised forms of dispute
resolution at any stage - not being locked into progress by escalation
ATTACHMENT 7: PRESENTATION
DR: INDUSTRIAL DISPUTE RESOLUTION ASSIGNMENT : Dianne Allen .... p. 76
INDUSTRIAL DISPUTE RESOLUTION: ISSUES, TRENDS AND IMPLICATIONS
PRESENTATION: A TOOL TO DEVELOP PERCEPTIONS WHEN ENGAGED IN ENTERPRISE BARGAINING?
IDEAS FOR PRESENTATION:
1. Mary Power's challenge to meta-cognitive learning
2. Concept of question of perception in disputes - Fisher & Ury
3. Role of Mental Models in perception - de Bono
4. Tools to enhance perception - de Bono
5. Systems archetypes from Senge possibility of one such tool
6. Accidental Adversaries archetype
7. Senge's view on systems thinking - team work
8. Senge's view on mental models [& Argyris on this and limitations of mental models]
OBJECTIVE OF PRESENTATION:
If there has been a common theme in the work I have endeavoured to undertake when
preparing for the "presentation" component of these Dispute Resolution studies, it could be
described as seeking to find, and then to share, something which might contribute to
practitioners of dispute resolution, as they go about "it", especially when acting in some sort
of "third party" role.
I have approached this task in this way partly because of what I understand as part of my
personal vocation: that of teacher.
1. Meta-cognitive Learning
The approach is supported by the call of Mary Power (1992) (in an article dealing with
training for mediators) to engage in dispute resolution, and to train operators in dispute
resolution, in a meta-cognitive way. (1)
She proposes that the training approach should reflect the necessity to build the skills to be
able to stand back, as an observer, and observe oneself,
• in "personal" responses, in the course of the dispute resolution, to the different
"personal" elements of the dispute: (usually the emotional, the subconscious,
the embedded behavioural responses, etc),
• in assessing the applicability of the chosen process to the dispute and its
resolution,
• in evaluating choices in strategic interventions,
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INDUSTRIAL DISPUTE RESOLUTION: ISSUES, TRENDS AND IMPLICATIONS
• in reviewing the effectiveness of the choices made, in the context of the
particular dispute, and
• in the application of theory to the practical context.
(IE: to become a mature, independent professional in one's approach to the exercise of dispute
resolution techniques.)
2. Fisher & Ury and "Perception"
In the course of this process, I have firstly come to understand, more fully, the role of
perception in dealing with disputes.
In the first instance, Fisher and Ury identify "perception" as a component of their "people"
aspects of negotiating interests. (2) [The whole analysis is in four parts: People, Interests,
Options, Criteria.]
In the work that I did for my first presentation: Resources for Strategic Interventions used by
Mediators, Facilitators and Conciliators my analysis identified perception as a key factor
re-appearing time and again as a mediator might strive to intervene in disputes to work
strategically at their resolution. (3)
My conclusions on that occasion identified:
This analysis highlighted for me the preponderance of the "person" element of
the process [The aspects occurred in the following frequency: P=55; I=32;
O=43; C=23]. Within this category the areas of "Perception" [P6=28] and
"Communication" [P8=13] occur most frequently in the analysis. And within
the "Perception" element, the issue of empowerment [P6.6] and face-saving
[P6.7] had the highest frequency.
In view of the fact that empowerment is one of the objectives of the use of the
mediation alternative to the adjudicative process of dispute resolution, this
weighting of functions of intervention, as a practical outworking, is of interest.
Also, the weighting occurring with "face-saving" would appear to support
Charlton & Dewdney in their comments on this issue on p.132-135.
3. De Bono and Pattern Thinking and Perception
Then, in the course of study associated with the Psychology of Dispute Resolution, one of de
Bono's theses relates to the role of pattern thinking and mental models in expediting thinking
and decision making. (4, 5) (And on the more negative, or likely to be dysfunctional, side
the roles these thinking patterns play in forming stereotypes).
One of de Bono's major themes would be the virtue of the ability to recognise the role of
perception in generating/ sustaining conflict, and how to develop skills, in thinking, which
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INDUSTRIAL DISPUTE RESOLUTION: ISSUES, TRENDS AND IMPLICATIONS
seek to get around the "established patterns" that are, for the task at hand, dysfunctional.
So the question is: for labour-management deliberations, is there a tool to help thinking
to develop a more functional, common, perceptual context in which conflict and conflict
solutions can be explored?
4. Senge's System Thinking:
Enter Senge with "systems thinking". (6)
There are at least three aspects associated with systems thinking that appear to offer some
assistance with the matter at issue:
1. the capacity of system analysis to give a more accurate picture of the real complexities
involved in labour-management issues and deliberations
1.1 enterprise context
1.2 global context
1.3 industrial relations
1.4 economic considerations
1.5 business cycles - capacity and limitations, exploring leverages etc
2. the necessity to engage in system analysis as a joint enterprise - the need for a group to
do it - with individual input/ viewpoints/ perceptions being not only valuable, but
essential to the quality of the analysis result
3. the "pictorial" aspect of the analysis
5. What is Systems Thinking?
"Systems thinking is a conceptual framework, a body of knowledge and tools
that has been developed over the last fifty years, to make the full patterns
clearer, and to help us see how to change them effectively." (7)
One of the elements involved in systems thinking is that as the study has developed, it has
shown that systems
1. operate in a longer time frame that our usual thinking provides for,
2. this means that some of the patterns discerned by systems thinking tend to
appear, at first blush, to be counter-intuitive
For example, Senge itemises 11 laws of system operations:
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INDUSTRIAL DISPUTE RESOLUTION: ISSUES, TRENDS AND IMPLICATIONS
"The Laws of the Fifth Discipline:
1. Today's problems come from yesterday's "solutions"
2. The harder you push the harder the system pushes back
3. Behaviour grows better before it grows worse
4. The easy way out usually leads back in
5. The cure can be worse than the disease
6. Faster is slower
7. Cause and effect are not closely related in time and space
8. Small changes can produce big results - but the areas of highest
leverage are often the least obvious
9. You can have your cake and eat it too - but not at once
10. Dividing an elephant in half does not produce two small elephants
11. There is no blame" (8)
Another of the elements in systems thinking, in the pictorial presentation, is its capacity to
"get away from" typical linear, and simple cause-and-effect and/or "blaming" thinking
patterns. (The "no-blame" element can be particularly helpful in circumventing
"face-saving" aspects of dispute management.)
De Bono is a great one for critiquing the limitations of language based thinking, and the
construction of subject-verb-object in Western language and thought. Systems thinking helps
us break out of this limitation.
Further, the system diagram, once developed, can be readily translated into other languages,
facilitating communication of complexity in a multicultural context.
6. Accidental Adversaries Archetype
So, my questions in this presentation are:
1. Is the "Accidental Adversaries Archetype" a helpful tool in developing a
common understanding of the complexities of relationship in the
management-labour context, especially as we begin to engage more frequently
in enterprise bargaining?
2. Can you help me develop that model?
(Accidental Adversaries Archetype - (9))
7. Senge's view on systems thinking - team work
In a supportive text seeking to provide training, etc tools to develop the understanding of the
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INDUSTRIAL DISPUTE RESOLUTION: ISSUES, TRENDS AND IMPLICATIONS
five disciplines in Senge's work, the following remark is made:
"You can't redesign your system (the "elephant") by dividing it into parts;
everyone must look at the whole together. Thus, you can't practice systems
thinking as an individual - not because the discipline itself is difficult, but
because good results in a complex system depend on bringing in as many
perspectives as possible. As you put together a team, make sure all necessary
functions are represented, and gain clearance from top management to
propose cross-functional solutions, regardless of sensitivities and politics. No
area of the organisation can be off-limits or protected. Also, try to include a
variety of learning styles on the team.
By its nature, systems thinking points out interdependencies and the need for
collaboration. Thus, as a team continues its work, it may become necessary to
bring in new members - particularly people who were once seen as enemies,
but are now obviously players on the same side in the game." (10)
It is this kind of context and experience which is proposed in mediation models, especially for
multi-party disputes.
8. Senge's view on mental models [& Argyris on this and limitations of mental models]
The last thing to say in this regard is to sound the warning that De Bono, Argyris and Senge
(and others) then make about "mental models". (11, 12, 13)
The mental models that we have of how the world works (what Argyris calls
"theories-in-use") are often at odds with what we espouse, and/or with what any system
analysis might demonstrate to be a better way of understanding the situation and proposing
steps to improve the situation.
These mental models are often "embedded", and are very resilient. So that even when
agreement is reached about the way to go, the impact of "mental models" can thwart effective
implementation.
The lesson then is that work needs to be done on exposing mental models, and opening them
up to modification to more accurately reflect, for instance, the "shared vision" and incorporate
the understandings developed in systems thinking/ analysis.
The "no-blame" context of working at systems analysis can form an important first step in
setting a "safe environment" needed to allow the opening up of such embedded mental
models to scrutiny.
Bibliography:
1. Power, Mary R "Educating Mediators Metacognitively" (1992) 3 Australian Dispute
DR: INDUSTRIAL DISPUTE RESOLUTION ASSIGNMENT : Dianne Allen .... p. 81
INDUSTRIAL DISPUTE RESOLUTION: ISSUES, TRENDS AND IMPLICATIONS
Resolution Journal, 1992, Vol 3, 214-226
2. Fisher, Roger & Ury, William Getting to Yes: Negotiating an agreement without
giving in. London: Century Business, 2nd ed, 1991.
3. Allen, D Resources for Strategic Interventions used by Mediators, Facilitators and
Conciliators. [Unpublished] Presentation Assignment for course work on Dispute
Resolution for the UTS MDR, 4 May, 1996
4. deBono, E Conflicts: a better way to resolve them. London: Penguin, 1991 (c.1985)
5. deBono, E I am Right, You are Wrong. London: Penguin, 1991 (c.1990)
6. Senge, PM The Fifth Discipline: The Art & Practice of the Learning Organisation.
Sydney: Random House, 1992.
7. as above, page 7
8. as above, page 57-67
9. Senge, PM Kleiner, A Roberts, C Ross, RB Smith, B The Fifth Discipline Fieldbook:
Strategies and Tools for Building a Learning Organization. New York: Doubleday,
1994
9. as above, page 145-148
10. as above, page 91, 92
11. deBono, E Conflicts: a better way to resolve them. London: Penguin, 1991 (c.1985)
12. Argyris, C Schon, DA Organizational Learning II. Reading, Mass.: Addison-Wesley,
1996
13. Senge, PM The Fifth Discipline: The Art & Practice of the Learning Organisation.
Sydney: Random House, 1992.