The leftward and other blatherings of Span (now with Snaps!)

Thursday, January 12, 2006

union myths - #4 unions just protect the incompetent

I hear these kinds of anecdotes all the time, mainly from people who haven't been in a union ever, or at least since the 1980s - someone was crap at their job (anything between mildly incompetent to dangerous conduct or work practice) and "The Union" saved them from getting fired.

When they are truly incompetent and the process is followed fairly, what "saved them from getting fired" often really means is that the union organiser involved has helped them to resign from their job before the axe fell, but often the outside observer doesn't know that part.

There are two general categories that workers tend to end up in the gun over:

  1. Competency - whether or not they can do key tasks required to do their job
  2. Conduct - stuff they do on the job that breaks policies or adversely affects workmates, eg sexual harassment, breaking the dress code, etc

In some cases these two areas are treated differently, but in many the procedure is simple and similar.

The person facing the complaint has certain rights, some of which have developed through case law, collective agreements and natural justice, while others are also protected in legislation:

  • fair notice of the specific allegation involved, and the likely consequences if the allegation is established. The allegation must also be dealt with in a timely manner, i.e. not sat on for months and months and "saved up" along with other complaints. To often I hear of situations where a worker is just called into the office by the boss one morning for no apparent reason and discovers when they sit down that they are facing a serious complaint.

  • the right to a defence - an opportunity for the worker to attempt to refute the allegation, or to explain or mitigate what happened. This includes making available to the worker any information being relied upon, eg witness statements, company policies, the identity of the complainant and any one else giving statements. The worker should have an opportunity to authenticate any statements made against them and also to respond to them, including telling the boss if they feel that the other person has an improper motive. The worker must also be given time to prepare their defence.

  • a proper and sufficient enquiry into the circumstances by unbiased investigator(s). And there must be an unbiased consideration of the worker's explanation by the decisionmaker - free from predetermination and uninfluenced by irrelevant consideration. It shouldn't need stating, but it unfortunately it does - the person making the complaint must not be the person deciding the outcome.

  • the right to representation - opportunity to seek and have present a representative of their choice during any disciplinary meetings, eg delegate, union organiser, lawyer, stroppy friend

  • justification - the boss must be able to prove that any disciplinary action taken against a worker is both reasonable and fair in the circumstances. Any punishment must not only fit the crime, it must also be consistent with similar outcomes at that workplace in the past.

Overall, all procedures leading up to discpinlinary action must be done in a fair manner, procedurally.

Every disciplinary I have seen reasonably closely to date has had at least one flaw in terms of the rights listed above. Most commonly, in my experience, workers are not given copies of statements the boss has from other people and when they are given them is expected to respond on the spot. Despite the flaws though, the union organiser and the member will generally try to fix the problem with the process rather than let it go on so that they can challenge the result later.

If you don't go through a fair process then the outcome can be overturned - this is usually what happens in a case where someone "gets off" when to the outside observer it might look like they ought to have been fired.

It's quite simple really - it is possible to fire people in NZ, and it does happen. But if the boss doesn't treat the worker fairly then they open themselves, and their business or organisation, to liability - either through a payout or re-instatement.

So rather than blaming unions for incompetent people continuing in their work, how about looking at the processes that are used by bosses to try to move people on? And think about how you would feel if you were the person facing the firing squad.

Previous posts in this series:
- union myths - #1 compulsory membership
- union myths - #2 all unionists want to be Rick Barker
- union myths - #3 unions are just like businesses


Anonymous said...

Good post :)

Tory Ted said...

Regarding your Rick Barker post, I think you've misinterpreted the situation. There may be a whole bunch of unionists who support the alliance but the PSA, EPMU and co. weren't pouring money in to the Alliance when the election came around but that in no way means the big Unions are Labour party hacks, quite the opposite. The concern is that the Labour party are too heavily dominated by Trade Unions what with 28 Labour MPs being former Unionists and a big slice of those who missed out but were on the list being heavily involved in Trade Unions, a grossly disproportionate amount.

Span said...

the point of this series has been to debunk a number of myths about unions and unionists that i have spotted across the nz blogosphere - to talk about things as they currently are, not necessarily as i would like them to be (note to all, but especially maps, who seems to spend rather more time attacking me and my posts than he does debating any of the right wing blogs).

Ed - my Rick Barker post was specifically inspired by accusations i had seen bandied about in great volume at the time, that those working (paid) for unions are just waiting for some sitting Labour MP to cark it so that we can ascend to that most high of all intelligent lifeforms The Labour Backbencher (tm) ;-)

but thank you Ed for bringing up another myth which i think i will address in a later post

maps said...

I make no apologies for not banging my heads against the walls of rabid right-wing blogs - I'm a Marxist, not a masochist.

I think it is much more worthwhile trying to point out the absurdity of a trade unionist suggesting that the firing of workers for 'incompetence' can be 'done in a fair manner', when the very meaning of 'incompetence', and thus the criteria for dismissal, is set by the interests of bosses. There simply is no 'fair process' at work here.

maps said...

Banging my heads? Oh dear...

Psycho Milt said...

I'm not surprised you don't take this stuff to right-wing blogs maps, they'd make pretty short work of it. Consider for a moment Span's definition of 'incompetence' in her post: "whether or not they can do key tasks required to do their job". OK, now tell us in what sense 'incompetence' would be differently defined under communism. The fact that under capitalism, the boss or shareholders are swiping some of the value of the end results of those tasks, does not alter the nature of the task, I think. It might annoy you that the boss' motive for wanting to sack an incompetent staff member is to protect shareholder value, but that brings nothing to the question of the worker's competence.

Matt said...

Couldnt' use the link thing properly.

A brief thought here.

PM, I don't see what the problem is. Bosses have every right to want to improve the return, but the objection arises where they are unwilling to enter into a fair and open process to either upskill that staff member or set and manage performance expectations.

Span said...

some workers do actually get a say in how competency is defined - those who are highly unionised often have definitions that they have had significant input to and had to vote on, in their collective agreements. or there may be professional bodies that are governed by those workers and have some role in terms of professional standards. i acknowledge that this is not the case, sadly, for most workers.

so maps are you saying that it is capitalism that gives rise to incompetence? because i have to say that personally there are many things that i am incompetent at. luckily none of them are things that i have to do for my current job, however i'm quite sure if i had to, for example, sing in a band, regardless of the way that society was constructed i would be classed as significantly incompetent. In fact quite dangerously incompetent. So bad that I'd fire me, even without fair process, and I'm sure even the most pro-worker advocate would agree when presented with evidence of my incompetence ;-)

Anonymous said...

I could be off the mark here, but I'm guessing maps's point is substantively different than the meaning inferred by PM, Span et al.
I think he is suggesting that companies driven by 'workers rights' rather than 'capital gains' would be far more likely to include those on the verge of being social outcasts, they would not be so quick to replace men with machines, workers welfare would be the first priority, inclusion rather than exclusion.
Under this scenario the definition of incompetence would be substantially different to the one under capitalism.


David Farrar said...

It is important employers follow fair process, but trying to get a definitive view on what constitutes fair process is damn near impossible.

Your average small to medium employer doesn't have a hope in hell of being able to legally fire someone unless they can pay a lawyer $400 an hour to guide them through it.

I've even seen cases in large Govt Depts where over a period of over a year they dealth with an ewmployee who simply didn't have the intellectual skills for the job. Their case file was inches thick, and had dozens of opportunities to improve and train etc. When it finally came it formal disciplinary action s/he engaged counsel who asserted the process wasn't perfect and of course s/he got a huge payout to go quietly, so did get rewarded for being incompetent.

No problems that unions strive to get best results for their members though. My issue is the current law places too high a burden on procedual perfection - a level which is unrelatistic for any but huge mega-corporates to be able to follow.

maps said...

A lot of workers who are accused and convicted of 'incompetence' using the kangaroo court processes which Span describes as 'fair' are not responsible for the problems they have experienced at work.

These workers are victimised, though, because employers use a definition of 'incompetence' and related terms which suits their own interests. Typically, this sort of definition shifts all the responsibility for an individual's problems onto the shoulders of said individual, and obscures its social and economic context, thus shielding employers, the state and society as a whole from any degree of blame. Par for the course for capitalist ideology.

If all this sounds a bit abstract, here's a concrete example: a while back I went to a meeting of IHC workers who were trying to get better pay and conditions. One of the workers got up and talked about how government underfunding had led to a situation where the IHC lacked proper equipment on its vans, which meant that whenever
some of the more severely handicapped clients went for a ride they had to be physically lifted into the vehicle by an IHC worker.

This had led to a situation where IHC workers were putting their backs out, and were unable to do some parts of their job properly. Some of them didn't take clients on many 'field trips' anymore; others relied on co-workers to do heavy lifting for them.

Now, undeniably, these workers were no longer capable of undertaking some of the key tasks covered by their job description, and they were clearly worried about being hauled through a disciplinary process and losing their jobs. Those who didn't take their clients out on trips could be accused of neglecting their charges' interests; those who relied on co-workers for help with lifting could be accused of laziness and wasting colleagues' time.

If we look at the surface situation, then we have to say that these IHC workers are indeed 'incompetent', in the sense that they can't do key tasks covered by their job description. But if we go below the surface, we can see that their 'incompetence' is not something they should be held personally responsible for, but instead a result of the failings both of their immediate employers and of the state.
Try making that argument, though, in the sort of 'fair process' which today's employer-friendly industrial relations legislation facilitates.

Anyway, I argue all this at greater length at:

Span said...

workers, union organisers and delegates do make those sorts of arguments all the time Maps, it is part of organising the worker's defence to look at the mitigating factors and underlying reasons for these things and present them as strongly as possible.

a big part of a disciplinary process is actually trying to find a solution less than firing/resigning, eg retraining that the boss pays for and gives the worker paid time off to go to, a role more suited to that individual, putting in place more support networks for the individual, acknowledging that they were under undue pressure in other parts of their life so whatever happened was a one-off, etc.

and then of course there are all the ones where the boss just doesn't have a case at all, which often get laughed right out of whatever meeting room you are in. unfortunately for those without union representation or a stroppy mate to help them, often people in this situation get shafted.

thinking about your IHC example, which i've heard about through other channels too, the employer is effectively in breach there as they have a duty to keep their workers safe and clearly they are not acting as they are legally obliged to in relation to a clear hazard (i.e. to eliminate, minimise or isolate it). if any worker did get disciplined around competency for this i would expect the union organiser or delegate to strongly put that case, and if they failed in winning to take it to mediation or further.

Maps, I'm not sure that you have a full understanding of what unionists do when they are involved in a disciplinary. the overriding goal is to get the best possible deal for the member, not to act like some kind of judge between the parties. you are there solely for the member, not the boss.

maps said...

I'm sure I don't have a full understanding of the nuts and bolts of the disciplinary process, as it is played out in different worksites and at different times. Undoubtedly there are all sorts of nuances that develop depending on the situation in a particular worksite at a particular time, and depending in particular on the relative strategic strength of the union and the employer.

But it is still reasonable to make the general observation that in our society the rules of the 'game' - the disciplinary process - and the institutions in which it takes place are determined by the employer, and stack the odds against the worker. The very definition of 'incompetent' and similar terms reflects the interests of the bosses, not workers.

Of course there are many cases where unions do a good job of defending 'incompetent' workers from victimisation, but this fact doesn't count as evidence that the arena within which the unions conduct their defence - the disciplinary process - is itself 'fair'. To use an analogy: a union might organise a successful strike, but this fact does not prove that industrial relations legislation governing the withdrawal of labour is fair.

Even to speak of the possibility of 'fairness' in industrial relations is to buy into an illusion that the state and the legal system can act as a neutral mediator between employers and workers, balancing their interests and assuring fair play. Such a view has always been ridiculed by the right, and the left accepts it at its peril. The state is never neutral - it always acts in the interest of one class or another.

Span said...

so what would your ideal fair process look like?

Psycho Milt said...

For my part, I'd be astounded to see an employer try to make the case that, having provided an unsafe work environment in which workers have damaged their backs due to lack of lifting equipment, said workers are deemed to be rendered "incompetent" by their bad backs. It would be a recipe for bad press and fat payouts, and at the end of the process the people most likely to be sacked for incompetence would be in management...

maps said...

There is no fair process possible in industrial relations because the relation between employers and workers is fundamentally unfair.

The two parties do not complement each other - one exists by exploiting the other. One is parasitic, the other productive. We're talking about a zero sum game - the rich are rich because the poor are poor, as Marx said. Is there a 'fair' way of mugging somebody?
Some methods are less brutal, but none is fair.

Unions should aim not for some illusory 'fairness' in industrial relations, but for the abolition of industrial relations. I stuck an old IWW badge up on my site alongside my post on this subject; the IWW used to march behind banners saying 'For the abolition of the wages system'.

The IWW is mostly a spent force today, of course, but in South America we do see sizeable unions which have declared themselves in favour of the abolition of capitalism.

Just yesterday I was having a beer with someone who was back from a trip to South America: he met Bolivian miners and Brazilian and Argentinian factory workers who were taking positions just as uncompromisingly hostile to capitalism as the IWW's. I am inclined to take them more seriously than the leadership of our own 'reasonable' unions, who stagger from one disaster to another, and may well go down the plughole altogether when National sweeps to power in a couple of years.

Psycho Milt: have you heard of a company called Labour Hire? They offer ultra-casual employment involving heavy labour to people who can't find more secure jobs. Very often the company will give dodgy jobs to its employees, especially heavy lifting which will do their backs in in six months or a year.
Once the poor buggers have done their backs, they can be thrown on the scrapheap at a moment's notice. 'Incompetent', I guess.

Psycho Milt said...

To repeat: it's beyond me how workers in the situation you describe would meet any kind of definition of "incompetence", either under a capitalist system or a communist one. And the example of Labour Hire is just an excellent example of why people like Span need to be doing the job they are - isn't it? Span's answer is to get out there and help those people, the Marxist's response is to tell those people they'd really do a lot better if we weren't living in a capitalist society. I bet they'd much rather see a Marxist turning up to help than Span - NOT!

maps said...

You really are a diligent red-baiter aren't you, Psycho Milt? The point that Marxists make - and I know plenty of Marxists who are active trade unionists - is not that we should all sit on our hands and wait for the glorious socialist revolution, but that the unions will do their day to day job of defending workers much more effectively if they don't have illusions in the 'fairness' of industrial legislation and the state.

In the post on my blog I make this point by contrasting the success of the 'unreasonable' trade unionists in South America, who took the law into their own hands and occupied their factories when they were slated for closure, with the dismal experience of Kiwi trade unions whose leaders have put their faith in legal challenges and appeals to successive governments for 'fairness'. The pathetic failure of the legalistic leaders of the Engineers Union to do anything effective to stop mass job losses at Air NZ is only the latest example of the crippling effects that faith in the 'fairness' of the state and legal system has had here. Labour Hire would not even exist if the arguments of Marxists within the union movement had been heeded fifteen years ago and attempts to introduce the Employment Contracts Act had been met with strike action. Len Richards makes some of these points at greater length in a recent post on indymedia:

Psycho Milt said...

A "diligent red-baiter"? Forgive my assumption that comments threads exist for us to state when we disagree with something. As I said further over, I'm a mouthy git. Or is your assumption that you should be able to characterise Span's position as "well-meaning but compromised" without anyone calling you on it?

Your further comments on Labour Hire just emphasise my point. Marxist: "You fellas would all be better off now if you'd just done what we told you..." Worker: "Yeah, thanks for dropping by mate, you've been a great help."

Span said...

I've been thinking quite a lot about this debate and I agree that the current industrial framework can't be fair, due to the huge mismatch of power between workers and bosses.

That said, what I have laid out in my post is the situation as it is, not necessarily, as I've commented earlier, how I would like it to be.

In relation to the EPMU a number of unionists (Marxist or not - I don't know enough about the details of Marxist, Leninist, Troskyist (etc) approaches to give myself any label other than Left and anti-capitalist really) have criticised the actions of the EPMU, including myself here:

and Mellie here:

One of the situations in which I see the unfairness of the current system on a near daily basis is in relation to bullying and harassment. It's actually not illegal, unless it is based on a personal trait such as race or sexuality. I get a lot of calls from people who are "just" being treated like shit, often as a means to control the workers and isolate them from each other. And it's not illegal. Organising approaches are the only short term answer, but given that bullying specifically isolates people from each other, it is a hard one to win in a demoralised worksite.