dispute resolution: industrial dispute resolution issues, trends and implications

DR: INDUSTRIAL DISPUTE RESOLUTION ASSIGNMENT : Dianne Allen .... p. 1

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



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



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



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;



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



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



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:



- 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



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



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.]



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.



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



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



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



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



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).



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



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



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.



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



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



* 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



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



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



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.



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



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



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



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



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.



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



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



* 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].



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:



- 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



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)



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:



"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.



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.



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)


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



Acland, AF A Sudden Outbreak of Commonsense: Managing Conflict through Mediation.

London: Hutchinson Business Books, c.1990



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]



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



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




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







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



Fiss, O "Against Settlement", 93 Yale L J (1984) 1984




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]



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



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



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











3.4



Employee Relations Update, 1997, 4 (83) p.1


1996, 38 (4), p.548-570

other articles mentioning and/or dealing with the issues of trust and collaboration are:




1996, 38 (4), p.548-570







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



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.



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"/



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



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



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.



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



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



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



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



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.



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)



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)



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.



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,



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.



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.



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.



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



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.



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



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.)



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:



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]



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:



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



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,



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



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



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,



• 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



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:



"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



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



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.

dispute resolution: industrial dispute resolution issues, trends and implications

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