Why Employment Relations (ER) Negotiations Are Different?

Advice For Managers Who Are Negotiating With Trade Unions

Introduction

The purpose of this “Stratis Insights Paper” is to provide guidance to management representatives who have to engage in a set of negotiations with a Trade Union or Group of Unions. (GOU).


There are many definitions of the term ‘negotiations’ but essentially it involves two parties engaging with each other with a view to reaching an agreement on terms that are acceptable to both sides. It is in essence a joint decision-making process and needs to be distinguished from information and consultation, or other forms of direct or representative engagement, where management retain the final decision-making authority.


The basics of any successful negotiation are well established. These include:


  • Solid preparation with a clearly defined hierarchy of objectives.

  • A core management team who knows the subject matter in great detail.

  • A clear understanding of the negotiating process and an appreciation of the context in which you are operating.

  • Keep your stakeholders updated with no surprises along the way.

  • Separate the people from the problem. Focus on the issues and interests and do not indulge in personal attacks.

  • Always maintain a clear record what has been agreed and what has not been agreed (which allows for an assessment of the differences between parties and aids in resolving disputes).

  • In ER negotiations with an individual Union or a GOU there are several additional factors to be considered namely:

  • There is ‘history’ between the parties based on their experience of previous engagements that may assist or contaminate the current issue.

  • There is an ongoing relationship and both parties must have regard for the impact on their future relationship.

  • The power dynamic between the parties may be in flux, to such an extent that it requires careful examination with assumptions tested and updated.

  • There may be a mix of employment law, contracts, company union agreements, customs and practices that inform the negotiations.

  • The context of the negotiations to include an understanding of the perceptions of internal and external equity and fairness.

  • The negotiations are taking place within the Irish Industrial Relations (IR) system of dispute resolution which can include a referral to the Workplace Relations Commission (WRC) and ultimately to The Labour Court.

  • The approval process on the Union side will include a ballot of members and in a GOU situation either aggregate ballots or separate Union ballots.

  • Having exhausted procedures, and in the absence of an agreement the Union may have recourse to industrial action and the Company may decide to implement unilaterally.

So, there are several steps to be followed to ensure that the management representatives are well prepared for any ER negotiations that they may engage in.


But Before You Proceed


In circumstances where there is already collective bargaining established, let’s assume you have received a letter from a Union seeking a meeting to discuss a particular issue. The critical first question to ask is “where does this fit within your broader ER Strategy?” and whether this is an item that should be the subject of a ‘negotiation’ in the first place.


Some questions worth reflecting on are

  • Is the matter covered by an existing Company/Union agreement?

  • Is it an established practice to negotiate on that issue?

  • Is the issue part of ‘Normal Ongoing Change’ and not requiring a formal negotiating type engagement?

  • Is there a more appropriate / alternative route to address the issue?

  • Should this be an engagement for information and consultation purposes only?

Does the letter provide a basis for a constructive engagement, or should you be requesting the Union to reflect on its stated position before any meeting takes place?


Remember, negotiations are a de facto joint decision-making process and whatever you do now creates a precedent for the future. It may well be that the appropriate response is to fully engage with the Union, but it is worthwhile checking first and consulting colleagues before responding. You may then need to respond by clarifying the basis for the engagement in advance or suggesting an alternative course.


Agree The Team


Ideally the management team will contain a balance of senior leaders from HR and operations. The ideal number would be 3 with a lead spokesperson, a second spokesperson / sweeper and an observer who maintains a summary note of the meeting. Subject matter experts may be required to input at certain points. Some organisations avail of external expert support in the same way that a Union have a trained negotiator and this can help to level the playing field.


“Failing To Prepare Is Preparing To Fail” - Benjamin Franklin


You must spend time as a team preparing for the meetings and in particular analysing the Union position and anticipating what they are likely to say. Use the checklist below to aid your preparation:


  • Clarify your priorities for the negotiations and set ambitious but realistic targets. Be clear on your bottom line and don’t share it until you have confidence that it is going to be recommended for acceptance by the Union Representatives.

  • Develop cogent arguments and test any assumptions you are making (remember to keep these assumptions under review as the discussions proceed).

  • Consider objective standards such as sector/industry norms, national norms, Ibec surveys, previous Labour Court Recommendations on such issues, etc.

  • Identify your ‘Best Alternative to a Negotiated Agreement’ (BATNA) – and try to improve on it through the negotiations. Your BATNA is what the employer can fall back on if a negotiation proves unsuccessful. This can be difficult in ER negotiations as generally there is an ongoing relationship to factor in and acting unilaterally may provoke a response. Continuing to negotiate or entering a cooling off period, committing to an independent review, or a referral to an agreed adjudicator may be your ‘ER BATNA’.

  • Assess the Union(s) position and identify any interests that are likely to shape the conversation. e.g. New Union Official, New Internal Reps, New Union Policy, potential for new precedent in your company or elsewhere, etc.

  • Assess the relative strengths of the parties and consider the implications of breakdown and what contingency is available.

  • Also consider what communications may need to issue to the wider organisation in advance of any meeting, between meetings or at the conclusion of the process. Do not leave the communications entirely to the Union unless there are very valid reasons for doing so.

  • The traditional collective bargaining format was one of extreme and unsustainable opening positions, slow movement, loss of trust leading to anger and resentment and ultimately relationships were badly damaged. My strong advice is to adopt an alternative approach based on ‘Opening Realistically and Moving Modestly’.

Walking into a meeting with the attitude “Let’s see what they have to say” is the alibi of the unprepared.


Manage Your Stakeholders


Anyone with experience of negotiations knows that reaching consensus on your side can sometimes be harder than doing a deal with the other party. The Union Official will have multiple stakeholders, internal reps, members, The Union and potentially, if the issues at stake are significant, the wider Trade Union Movement.


The management team will have their wider leadership team colleagues, line managers, and potentially board and corporate interests to manage. You will need to share the negotiation plan, seek their feedback and get sign-off on your mandate.


Agree your stakeholder map and maintain regular contact throughout the process to ensure there are no surprises.


At The Meeting(s)


Meetings do not always go fully to plan but there are some golden rules and behaviours that will help to guide you in the right direction regardless of what arises, including:

  • Ask questions to clarify your understanding of what is being said, the thinking that lies behind it and to influence the thinking of the other side. Asking questions can be much more effective than trying to engage in a ‘logical debate’.

  • Focus on interests, not positions. Ask ‘Why?’ and Why not?’

  • Acknowledge facts and apply objective standards BUT challenge assertions.

  • Don’t allow meetings to degenerate into shouting matches or personalised attacks on individuals.

  • Don’t interrupt and don’t allow yourself to be interrupted.

  • Look to generate options/possibilities that may have a mutual advantage.

  • Where possible work to establish a shared understanding on the context, e.g., if the financial position of the company is such that there is a clear inability to pay position then this may be capable of being independently verified.

  • Use side conferences or adjournments as required and particularly if you need to consider a point that has been made or reflect on your position (or if the meeting is becoming heated).

I have read papers on ER negotiations that advocate that management must seize the initiative and open the meeting almost at all costs. I don’t subscribe to that view and it is better to make a judgement call on a case-by-case basis. Sometimes it is right for the union to open and sometimes management should do so, depending on the issues involved. Either way it serves no purpose to have an argument over who kicks off and I have yet to be involved in a process where the outcome was determined by who opened the first meeting!


Some people find ER negotiations very stressful, and this can have a serious impact on the quality of the communications during meetings. Inexperienced people may find themselves saying things they had not intended to say, intending to say things but not saying them and hearing things in a way that the other party did not intend. Remember the quality of communications must be measured in terms of impact and not your intentions. You need to seriously reflect on the impact of your communications and if it is not working find a different approach that does.


At any IR meetings, adopt the mantra “Seek to understand before you seek to be understood. “ (Stephen Covey) and use your 2 ears and 1 mouth in that proportion.


Getting to a Final Proposal


There may be multiple meetings required before you get to a stage where you can issue a final proposal. In framing any final proposal consider how best to package it and what conditions may be attached attach using ‘if…then’ language. Consider the timing of the final proposal and whether the Union side is prepared to recommend it for acceptance.


If an agreed resolution is not in sight, the parties may need to seek the assistance of the Workplace Relations Commission (WRC) or another agreed facilitator. The WRC has an excellent track record in resolving ER issues between employers and Trade Unions and developing proposals that satisfy the interests of the parties. Ultimately the Labour Court is available as the Court of last resort and recommendations from the Court in most cases resolve the issue or form the basis for a final resolution.


We have a low incidence of industrial action in the private sector in Ireland, but it is important to remember that this option remains available to a Union and there is little point being ‘strong’ in your position on an issue until you face a threat of industrial action only to capitulate at that point.


“Everyone has a plan until they get punched in the mouth.” Mike Tyson


Finally, we always encourage employers in any negotiations to be mindful of any knock-on effects that conceding a claim may cause for other employers in their sector, region or nationally.


Balance ‘The Now’ v ‘The Future’


Good ER negotiators know that “it is a short road that doesn’t have a turning” and there is always the future relationship to factor in as well as the issue(s) at hand. When buying a car you do not have to worry about the person selling you the car or whether you are getting a fair deal. If the price is right you buy the car, if not you move on to the next garage.


But in ER negotiations between an employer and a Union, or Group of Unions (GOU), you do have to factor in the future relationship and how the other party sees you. Relationships and reputations matter and remember it is a small world out there! At some point in the future, you may need the same official (or their colleague) to help resolve an issue more than they need you.


While you may be tempted to complain about the conduct of the Union members or the Union representatives, many Union Officials have responded with the simple retort “Remember who employed them in the first place”!


Maya Angelou said “I've learned that people will forget what you said, people will forget what you did, but people will never forget how you made them feel.”


During any ER negotiation do not exploit a short-term advantage or you will pay a price somewhere down the line.


Conclusion


It is difficult to capture all the advice on conducting a set of ER negotiations in a short paper, nevertheless I trust that this will act as a useful checklist to guide you in any negotiations you may be involved in. It can also be used by the management team to inform a review of the outcome of a negotiation and identify areas for personal improvement.


At the end of the day, we must remember that we are all human beings with our own personal styles, emotions and idiosyncrasies. That is what makes ER negotiations interesting and challenging but ultimately highly rewarding for those that have the patience to stick with it and make it work.


Once you recognise the limits of logic as the sole means of persuasion in any ER negotiations you will begin to explore processes and outcomes that enable issues to be resolved in a mutually acceptable way.


ER Support


If you need advice on any forthcoming negotiations with a Trade Union then feel free to contact me or any one of our Partners.


Stratis Consulting Partners each have over 30 years of experience of representing employers in negotiations with Unions. We also conduct workshops in how to prepare for a forthcoming ER negotiation that can be tailored to the specific needs of your organisation and run in house with your management team.


Liam Doherty PhD Senior Partner | Stratis Consulting

E: liam.doherty@stratis.ie

T: +353 (0) 1 2936748

M: +353 (0) 87 2236476

W: www.stratis.ie Twitter: @Stratisconsult LinkedIn: Follow us here


Disclaimer: The information in this article is for practical guidance only and does not constitute legal or case specific advice. The answers to specific situations will vary depending on the circumstances of each case. This is not a substitute for specific professional advice relevant to individual circumstances facing your business.




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