Workplaces That Work

The Workplace Fairness Institute is Growing!

2008-07-26T18:11:00.000-07:00

Greetings Fairness Enthusiasts!

I am proud to announce that the Workplace Fairness Institute has added a new associate - Bernd Weller, who will be acting as Vice President and Senior Consultant of the WFI.

Bernd is a seasoned management consultant who has moved into the world of conflict management systems analysis and design. He will be working with me to provide fairness assessments for workplaces around the world.

Welcome Bernd!

We have some big plans on the horizon, so stay tuned!

Also I would like to announce that Rosalie Bellefontaine will act as Director of Operations for the WFI. In addition to her strong organizational skills, Ms. Bellefontaine brings a wealth of experience from the film and video world to the Institute.

Welcome Rosalie!

Welcome Prospective Bloggers!

2007-06-04T13:48:00.000-07:00

Hi all:

This note is for those of you who will be attending the Blogging Seminar advertised by the Ontario Bar Association ADR Section. Here is how it reads:

The ADR/Law Blogger: Free Marketing Is Just 15 minutes Away”

Blogs are quickly overtaking web sites as the most important web based marketing tool available to practitioners in the ADR and legal communities. They cost nothing to set up, are easy to use and update, have higher visibility on the web than websites, are an excellent source of referrals to web sites, are well suited for networking, enhance credibility, and can be an independent source of income. Attend this program to get the goods on how you can take advantage of this new trend from some of the leading experts. Topics will include:

• how to set up your own blog
• marketing potential of blogs
• upside and downside of blogging
• how to make the most out of your blogging time
• when to use a free blog service and when to start paying for quality

DATE: Monday, June 4, 2007

I hope you all enjoy the seminar.

Cheers
Blaine

What are the Substantive Measures of Workplace Fairness?

2007-05-14T16:28:00.000-07:00

Most of the articles in this blog have thus far been devoted to the "Process" measures of workplace fairness (i.e. What makes a fair workplace conflict managment system?). It has occured to me lately, however, that perhaps there is a way to measure the substance of workplace fairness (i.e. what minimum terms and conditions of work are required to make a workplace a "fair" workplace). I suspect this is a much harder task than the first line of inquiry. This is so, because substantive fairness will likely be subjective and referential. Or to put it another way, "fairness is in the eye of the beholder".

Still, perhaps there are some minimum indicia of a fair workplace. Perhaps there are standards that must be met to ensure workplace fairness.

I will begin this discussion in the upcoming articles by exploring what cannot be absent from a workplace in order to achieve fairness. This negative proposition might be the easiest place to start. To put it another way - What is required to make workplace fairness possible?

I encourage the reader to reply in the comment section with your ideas about the minimum requirements of workplace fairness. To make a start at this, we assume that a workplace cannot be fair if it is unduly physically dangerous. Legislators accross the Western world have made it clear that workplace participants must not be subjected to harsh physical dangers at work.

Let us take it from there. In upcoming articles I will explore these minimum standards of "substantive" workplace fairness. I invite you to explore with me.

Should Governments Mandate Workplace Fairness?

2007-04-29T04:52:00.000-07:00

I delivered the following speech on Workplace Fairness at a public lecture series for La Trobe University at Melbourne Australia on April 19, 2007.....

I would like to take this opportunity to thank Tim, Tania, Sandra, La Trobe University and Magwicks for inviting me to speak at this public lecture. I am honored to address you with a subject that I am very passionate about - the topic of workplace fairness. I have spent a great deal of my professional life thinking about this ideal and have concluded that workplace fairness is indeed possible. It is my great fortune to share these thoughts with you this evening.

INTRODUCTION
So let’s talk about workplace fairness:
• What is workplace fairness?
• Is there a right to workplace fairness?
• Are there competing rights?
• How have governments sought to protect workplace fairness?
• What role does unionization play in workplace fairness and what role ought it to play?
• How successful have we been in protecting and promoting workplace fairness?
• How could we be more successful?

WHAT IS FAIRNESS?
Workplace fairness builds upon the liberal democratic notion that all individuals deserve equality of concern and respect regardless of their position in life. The great liberal democratic legal theorist, Ronald Dworkin put it best when he said that:

fairness rests on the assumption of a natural right of all men and women to equality of concern and respect, a right they possess not by virtue of birth or characteristic or merit or excellence but simply as human beings with the capacity to make plans and give justice

WORKPLACE FAIRNESS AND THE GOLDEN RULE
This notion of equality of concern and respect takes us to the fundamental precepts upon which we have based our societies especially in the Western world. If workplace fairness is built on the foundation of Equality of Concern and Respect, then just as surely Equality of Concern and Respect is based upon the foundation of the Golden Rule – Treat others as you want to be treated.

THE GOLDEN RULE
Anticipating that some may argue that this proves only Christian workplaces need to be fair, I have provided you with positive proof that The Golden Rule reaches into almost every religion imaginable and thus most societies should ascribe to the “natural foundation of workplace fairness.”

And even in the case of Christian concepts of justice, I put it to you that the idea of workplace fairness reaches back way before the Golden Rule was first enunciated.

I am speaking of course of the times of Moses and the great Exodus from Egypt. During that time a group of workers approached Moses – who clearly had an in with the boss. See Moses was Manager of Compliance in the workplace. But this group of workers complained about how unfair the workplace was. The Boss was one of these management rights traditionalists to be sure. It was “thou shalt” this and “thou shalt not that”, there was hardly any room for creativity in the workplace.

And to top it off, there was a large union organizing drive started because of perceived unfairness in the workplace. The “International Federation of Golden Calf Worshippers” had sent a couple of very persuasive organizers to rile up the staff. The line up to sign union cards with “Golden Calf”. was getting longer and longer. See “Golden Calf” was a smart union. They claimed they could get all kinds of fringe benefits out of the employer. In fact they promised a retirement plan that was second to none: eternity in a very warm tropical environment just for signing up.

So, Moses, being a strong advocate for workplace fairness, and also fearing what would happen if the workers became members of Golden Calf, gave the boss a call and asked for an audience. Of course, this being a traditional employer, the Boss had no intention of meeting Moses personally. Instead The Boss sent the Manager of Human Resources to negotiate with Moses. Bush was his name…. Burning Bush. I guess the Bush family has been medaling in the Middle East for a long time.

Well for 3 days and 3 nights Moses and Burning Bush had it out. For the first day there was lots of fist pounding on the table, saber rattling, teeth gnashing and cigar smoking. On the second day, the discussion became much more interest-based as Moses explained that Golden Calf had sent its own representative to the workplace, and she was attracting much more attention than the Boss. So they finally concluded the deal on the second day – but in typical fashion Moses was left with writing the deal up – which is no small chore when all he had was stone tablets and a chisel – this was back before the Vista upgrade.

But then finally, Moses returned to his workplace with agreement in hand. He addressed the throng of workers and gave them their first taste of workplace fairness.

He said

“Well, I’ve got some good news and some bad news.”

“The good news is I got the Boss down to 10”

“The bad news is adultery is still on the list.”

THREE STAGES OF RIGHTS DISCOURSE
Alright so now that we have discussed the 4000 years of workplace fairness, let’s fast forward to modern days. Another way to approach our primary question is to ask whether there is a right to workplace fairness.

In order to answer that question let us consider the nature of rights for a moment. According to some theorists there have been three stages of rights discourse in the last three centuries.

The first stage was concerned primarily with the right of individuals to be free from state control and coercion. These are commonly referred to as Civil Rights. Such rights would include privacy, freedom of speech, freedom of contract, etc. This form of rights discourse was dominant during the rise of liberal democracies across the Western world in the 18th and 19th Centuries.

The second stage of rights focused upon the right of individuals to participate in the administration of the state through voting and the ability to run for office. This became the dominant form of rights discourse for men in the 19th Century and for women in the first half of the 20th Century.

And the third stage of rights discourse is more a creature of the 20th and 21st centuries. This form of rights discourse is called “social rights” and involves the right to protection of the state from private interests. The most significant example of this is human rights which entreat states to protect individuals from harassment and discrimination on the basis of certain prohibited grounds.

IS THERE A RIGHT TO WORKPLACE FAIRNESS?
So is there a right to workplace fairness?

If there is such a right it would be a social right – it would be the right to state protection from private interests. It would be a right akin to other human rights. It would require a recognition of the disadvantage of employees in the workplace setting that needs to be ameliorated by state involvement. It would have to be based upon the assumption that employers exert control over employees similar to the control that states exert over their citizens.

So where is the proof that such a right exists?

INTERNATIONAL CONVENTIONS
To answer this question we must look to the international community and our collective views on work and the rights associated with it. These views have been endorsed by member countries of the International Labour Organization (ILO).

Declaration of Philadelphia (1944)
We begin with the Declaration of Philadelphia (1944) which established three fundamental principles of relevance to a right to workplace fairness

1. Labour is not a commodity
2. Freedom of expression and association are essential to sustained progress
3. All human beings have the right to pursue their material and spiritual development in conditions of freedom, dignity, economic security and equal opportunity

To this can be added the International Covenant on Economic, Social and Cultural Rights, (1976), which endorses some of the fundamental principles of equality of concern and respect upon which workplace fairness is based. For example:

Article 6 – establishes the inalienable right of citizens to work
Article 7 – establishes the right of everyone to enjoyment of just and favourable conditions of work
Article 8 – establishes the right to form and join a trade union for the purposes of achieving the rights under articles 6 and 7

ILO DECLARATION ON FUNDAMENTAL PRINCIPLES AND RIGHTS AT WORK (1998)
One might ask, why do we care about International Conventions anyway? They have no true force in domestic law and thus are not an articulation of any particular Society’s principles. This view is countered by the ILO Declaration on Fundamental Principles and Rights at Work (1998), which states that

• All states who are members of the ILO, have endorsed Declaration of Philadelphia
• All Members, even if they have not ratified the Conventions, have an obligation to respect, to promote and to realize, the following fundamental rights
• (a) freedom of association and the effective recognition of the right to collective bargaining;
• (b) the elimination of all forms of forced or compulsory labour;
• (c) the effective abolition of child labour; and
• (d) the elimination of discrimination in respect of employment and occupation.

SIGNIFICANCE OF INTERNATIONAL COVENANTS
So what is the significance of all this? How does a state commitment to the principles espoused in the above International Covenants translate into a Social Right to Workplace Fairness?

First, let us confirm that Australia, Canada and hundreds of other countries are member organizations of ILO. This means that there is a relative international consensus at least on the principles set out in the Declaration of Philadelphia.

The Declaration of Philadelphia supports the social right to workplace fairness as follows:

“labour is not a commodity” rejects the alienation of a person’s labour from a person’s life. This supports the concept that an individual has a right to be treated as a citizen even when that person enters the workplace. That there is nothing about entering the employment relationship that would denigrate from the person’s right to equality of concern and respect.

Likewise “freedom of expression” rejects the view that an employee loses fundamental rights of citizenship by stepping into the workplace.

Finally the right to “freedom” and “dignity” are akin to fairness – they connote equality of concern and respect.

Taken together, these pronouncements support the concept that there is a social right to workplace fairness. And since member states of the ILO recognize in essence the international right to workplace fairness, it would be disingenuous for such states to refuse to recognize this social right in their own jurisdictions.

Therefore, there is a Social Right to the State Protection of Workplace Fairness

But wait a minute! What about the other “right” in play that has its fundamental basis in all capitalist societies…

COMPETING RIGHTS – THE OTHER GOLDEN RULE
The Other Golden Rule – Those with the Gold Make the Rules. This is the key ingredient to the Right to Freedom of Contract.

AUTOCRACY OF WORK
Surely, some would argue, there is a time honored tradition in support of Freedom of Contract as the primary mode of work relations. In fact the entire work relationship was at one time dominated by the right to freedom of contract. Under this theory the Parties are free to enter into or leave any contract any time they want. – the Parties are free to negotiate the terms of their contract and of course whatever isn’t expressly negotiated or implied by the courts falls to residual management rights – another time honored tradition that goes back to the old master-servant relationship.

THREE STAGES OF RIGHTS
The civil right to freedom of contract, some would argue, is far more important (or at least as important) as this so-called social right to workplace fairness. After all, civil rights are enshrined in constitutions. And the state has no business interfering in the affairs of two competent parties.

WHAT OF ENSURING FREEDOM OF CONTRACT?
As stated by Richard Epstein “In Defense of Contract at Will”

“Freedom of Contract is an aspect of individual liberty, every bit as much as freedom of speech, or freedom in the selection of marriage partners or in the adoption of religious beliefs or affiliations. If government regulation is inappropriate for personal, religious, or political activities, then what makes it intrinsically desirable for employment relations?”

After all, as Epstein continues:

“With employment contracts we are not dealing with the widow who has sold her inheritance for a song to a man with a thin moustache. Instead we are dealing with the routine stuff of ordinary life. People who are competent enough to marry, vote, and pray are not unable to protect themselves in their day-to-day business transactions”

FREEDOM OF CONTRACT VS. FREEDOM OF LIBERTY
In answer to the Freedom of Contract argument, some have replied that there is another civil right at play for employees – Freedom of Liberty.

Many have argued that since the latter part of the 20th century corporations have replaced the government as the primary institution for restricting the freedom of our citizens.

As Lawrence Blades puts it:
It is a widely accepted proposition that large corporations now pose a threat to individual freedom comparable to that which would be posed if governmental power were unchecked.

In the workplace environment every aspect of an employee’s life may be regulated by the employer – including when and where an employee eats, drinks, sits down or converses with her fellow employees. An employee can be required, within certain limits, to put up with an abusive supervisor, and to not retaliate when her self-esteem has been tarnished.

An employee can be subjected to discipline as severe, in some cases, as many of the forms of ‘discipline’ that a state can inflict upon a citizen. As one author put it, dismissal is the “organizational equivalent of capital punishment.”

And most employees simply do not have the power to alter the at-will arrangement at common law – which leaves them only with reasonable notice upon termination of employment.

Paul Weiler, a prominent labour theorist, states that:

A freely negotiated agreement between an individual employee and his employer is not an effective means for establishing the employee's entitlement to his job and protecting both workers and the community from management's abusing its power of dismissal. This conclusion flows from the fact that holding a job with the employer is typically much more important to the employee than retaining any individual worker is to the employer.

But this is only part of the reason why we should care about workplace fairness. Underlying all this is really a philosophy about how we choose to live our lives. As human beings most of us spend nearly half of our waking adult lives in the workplace. Our work defines us to a great extent.

We are social beings that are partly the product of our own socialization. Workplace structures that are essentially unfair lead to a general sense of unfairness in the workplace. By accepting unfairness in the workplace we condition ourselves and our society to accept unfairness in other aspects of our lives and the lives of others on the planet we share. This may account in some part for our acceptance of unfairness in the world around us.

Therefore, there is a greater need to seek fairness in every aspect of our lives.

It is for this reason that I believe we must care about workplace fairness.

BALANCE OF COMPETING RIGHTS
Consistently governments have accepted the existence of both the social right to workplace fairness and the civil right to freedom of contract. In recognizing these rights they have sought to strike a balance. And while there are variances in how the balance was struck, there is a common view of the limits of workplace fairness.

THE LIMITS OF THE RIGHT TO WORKPLACE FAIRNESS
In liberal democratic societies governments have struck a balance between fairness and freedom of contract by settling for basic protections for workers entitlements, and access to a process whereby workers can protect their own right to fairness. Governments have not seen the redistribution of economic wealth as a part of the right to workplace fairness.

ELEMENTS OF A FAIR WORKPLACE CONFLICT MANAGEMENT SYSTEM
Let me take this opportunity to introduce a theory about what is required to make fairness a reality in the workplace. In analyzing what is required to make a workplace conflict management system successful, I have created a number of criteria which I have placed into four categories: Justice, Efficiency, Engagement and Resource Sufficiency. I will speak more of these criteria throughout the lecture.

EXISTING STATE REGULATION STRATEGIES TO ENSURE WORKPLACE FAIRNESS
Most states have sought to protect workplace fairness through the legislation of minimum standards and through allowing employees access to collective bargaining. Governments have created a floor of essential entitlements and have counted on collective bargaining to fill the gaps.

The following quote by the Saskatchewan Minister of Labour in 1944 provides evidence of the great hope that liberal democratic legislators had in the process of collective bargaining as a guarantor of workplace fairness:

No Labour legislation, (he stated), can be regarded as truly fair unless we have first of all clearly established the fundamental democratic rights of employees to organize and bargain collectively. Once these rights are clearly established, workers will be in a position to protect themselves. And the protection which they can give themselves, in a democratic country, is of infinitely greater value than any protection, which the government can give them

This theme was echoed many years later by David Beatty, a prominent Canadian workplace jurist. He writes:

Collective bargaining is intended to be a legal process which governs the interaction of individuals in the workplace in a way which will 'enhance the free development of the human personality'.... and provide a social structure within which the liberal ideal of self-definition and self-government can more closely be approximated in our working lives.

ESSENTIAL DIFFERENCE NON-UNION VS. UNION
In essence governments have introduced collective bargaining as a way of reducing the arbitrary use of residual management rights. As Professor Beatty has put it, collective bargaining is the liberal democratic response to the need to institute “rule of law” in the workplace.

In most states this is achieved through collective bargaining for a number of reasons:

First, along with collective bargaining comes the unfair dismissal provision and the reinstatement remedy in most states. It is very difficult to have a truly fair workplace without an enforceable unfair dismissal standard and without access to the reinstatement remedy. Without those protections all other fairness measures can be easily undermined by the threat of termination of employment.

(I note here that Australia seems to be an exception to this internationally accepted principle. From what I can tell, employees and unions are actually fined for negotiating an unfair dismissal provision in their collective agreement. Under WorkChoices individuals can be fined $6000 and unions $33,000 for negotiating an unfair dismissal provision into an agreement even if the employer agrees. Apparently Mr. Howard was very excited about the title of this lecture (Should Governments Mandate Workplace Fairness) and thought that he would change a number of laws in honor of this momentous occasion. Except he must have read the title of the lecture wrong – what he must have read was “Should Governments Dismantle Workplace Fairness?”

A second advantage of collective bargaining is that employees would have more than just formal access to standards and remedies. Unlike in the common law system where employees had to pay for expensive law suits to enforce their rights, unionized employees would have a union representative to guide them through the process, and would have union-paid litigation to back them up. When looking at the Justice criteria above, this would have a strong impact upon the Protection, Support and Procedural Fairness criteria.

A third attraction of collective bargaining was that it introduced an entity into the workplace that could act as a counter-measure to the extreme imbalance in power relationships. Unions, with their dues, were meant to grow into powerful entities that could have an impact on the setting of government policy – just like employers could.

And finally, the collective agreement grievance procedure was intended to be more efficient than common law courts at settling disputes in the workplace. This is why there were numerous internal steps proposed for a grievance procedure that are not available in the common law litigation system.

In total, governments thought they were making provision for a fair balance in the power relationships in the workplace that would have the result of ensuring workplace fairness.

HOW WELL HAVE PRESENT STRATEGIES WORKED?
So how well has this strategy worked in the Western world? If collective bargaining was seen as the panacea to a world of unfair workplaces, then it must be concluded that state strategies have met with only limited success in most countries. And the primary reason for this is the marked decline in unionized workplaces as demonstrated in the following slides.

UNION DENSITY RATES AND COVERAGE
In general, the density rate of unionized employees in non-European countries is low enough to cause one to question the effectiveness of government strategies to regulate workplace fairness through collective bargaining. A strategy that covers only a minority of employees is hardly an effective one.

RATE OF DECLINE 1970 - 2003
And while the present union density rate is a serious cause for concern, the alarming rate of decline in union density is further proof of the failure of this strategy. The rate of decline in Australia should be especially noted as problematic for the workplace fairness strategy.

PRIVATE VS. PUBLIC
And finally, the character of union density should raise even more alarm bells. There is a consistent pattern of decline in private sector unionism even to the point that in countries like the United States, it is almost non-existent. And with constant rates of privatization in the Western world, this augers poorly for the total rate of unionization.

WHY HAS THIS STRATEGY NOT WORKED?
If the decline of unionization is proof positive that the government strategies in the Western world have not worked, this leaves us with the question why?

1. Maybe it has worked
Well some have argued the contrary: that in fact the strategy has worked. Let’s face it; workplaces are generally fairer than they were 70 years ago when labour legislation proliferated throughout the Western world. Human rights and privacy legislation has been refined, and some would argue that the exercise of residual management rights is more cautious than it used to be – partly because the ability to attract and retain staff (at least in the more skilled sectors of the economy) is influenced by the fairness of the workplace – but also partly because employers fear unionization and will construct fairness measures as an antidote to unionism.

If this is the case, however, the state of fairness must be seen as illusory and entirely contingent upon economic conditions. Many fear that with the decline of unionism, the incentive for employers to have fairer workplaces will also diminish. And in the final analysis there is nothing preventing an employer from firing an employee without cause (especially an Australian employer with 100 employees or less) and ultimately very little preventing an employer from exercising residual management rights in an unfair way outside of the statutory minimum requirements.

2. Internationalization of capital and movement to third world countries
So let’s consider the reason touted by the press for the apparent abandonment of the strategy to unionize: internationalization of capital. Many argue that there really is no choice left – that if a country wants to compete for the free flowing international capital, it must make it more enticing for investors to invest in the country. And the more regulation and unionization there is, the less likely that investors will want to invest.

This, in fact, has been claimed as one of the big successes of the Howard government’s changes. In a recent article in the Australian it was asseted that a year after the WorkChoices Act was introduced, unemployment fell, earnings rose (albeit no more than inflation grew) and most importantly, hours lost due to industrial strikes fell sharply. All this looks good for business. And of course all of this has been done in the name of competition. Such success has been bought at the mere expense of reducing statutory minimum requirements, weakening of unions, and exempting companies with 100 employees or less from unfair dismissal laws.

To put it another way, The Australian government has sold off workplace fairness for increased employment. Ironically this is the government that is supposed to espouse the liberal democratic compromise. And instead it is forsaking liberal democratic principles in the name of competition.

But the reality of all this is that internationalization of capital is not the primary reason for the decline of unionism. This decline began before the internationalization of capital and some would argue was the necessary precursor to relaxing of national laws to allow unrestricted free trade.

3. Attitudes toward unionism
Perhaps the most fundamental reason for the failure of the government strategy of achieving fairness through unionization has been the public attitude toward unionism: that unions are a necessary evil.

A prominent North American academic, Roy Adams of McMaster University, has summarized the attitude of employers toward unions. He writes:

1. Unions are seen as "outside organizations," individual employment relations are the natural norm, and unionization is the outcome of a failed attempt by management to create social harmony in the workplace.
2. The proper role of government is to act as a neutral referee in the contest between unions and unorganized employers for the loyalty and support of the employees.

This construct informs public thinking about unions. But this is not entirely the fault (or shall we say success) of employers. The attitude of union as adversary, as trouble-maker, as the power-based, self-interested, politically radical, bullies in the workplace is partly also due to the actions of unions themselves. It is fair to say that in the past some unions have used excessive force to wring concessions out of employers.

The history of the union movement in North America and in Australia is one of constant struggle between employers and unions. The power based model of strike lockout to resolve disputes has exacerbated this struggle. It naturally led in the earlier years of unionization to the prominence of international socialists and communists within the movement. The great liberal democratic ideal for unionization as a measure to secure workplace fairness was sacrificed to the acceptance by both employers and unions of “class struggle” as the predominant model of unionism.

It is not surprising under these circumstances for employers, some employees and the general public to see unionization in the way it has been described by Professor Adams above – as nothing better than a poison pill for bad management practices.

And this outcome really represents a failure of the liberal democratic ideal of unionism as the free expression of democratic interests in the workplace aimed at securing workplace fairness.

WHAT NEW STRATEGIES SHOULD BE TRIED?
Well now that we have established the limited success in present strategies in ensuring workplace fairness, where do we go from here?

1. Let free market decide
Well perhaps the likes of Epstein (and who knows maybe even John Howard) might say, “See I told you so. Don’t mess with capitalism and it will take care of itself. It is completely self-correcting as long as you just leave well enough alone.”

So why don’t we then just eliminate all statutory minimum requirements? Why don’t we allow employers to live by the conditions of the market? If the market will supply workers who will work for 30 cents a day, then why not allow that to happen. They do this of their own free will. No one is making them work there. Right? And while we are at it, why not also eliminate all environmental legislation so that we can directly compete with some third world country? On the logic of free market, there should be no unemployment at all as long as people are willing to work for free.

The fact of the matter is that investors buy into to markets like Australia and Canada because the workforce is stable, it is highly educated, efficient and motivated. To the extent that there is a relationship between a social safety net and the stability of a national workforce, the reduction of such standards are likely to cause disruptions and instability. A primary example of this is in the apparent public reaction to the Work Choices legislation here in Australia. Now it is not for me to judge, but from what I see in the papers, this legislation has sent a chill throughout the country – a chill that will eventually have an economic impact.

2. Bolstering unionism
So what about going the other way? What about making unionization mandatory and requiring all employees to be a part of a union or to be covered by a union?

This is fraught with as much peril as the first suggestion. Mandating membership in a union is a violation of the right of individuals to freedom of association. It is an unreasonable infringement upon the freedom of association to require a clear majority of employees to join an organization that they do not wish to join.

3. Increasing regulation outside unionism
So what about dismissing trade unionism altogether and instead concentrating upon mandatory legislation to ensure workplace fairness? To some extent this is beginning to happen in jurisdictions with declining union density rates. For example the Canadian national jurisdiction and the Provincial jurisdiction of Quebec have both mandated a reinstatement remedy and a just cause standard for dismissal that all employers are subject to (regardless of whether or not there is a union). This appears to be going in the exact opposite direction of the Australian government with WorkChoices.

On the surface, this idea of directly mandated workplace fairness has its attractions. There would be no concern about union density, no requirement for mandatory unionization, and still it might be possible to achieve workplace fairness (on paper at least.)

On this slide, I have represented what these governments have done on the spectrum of workplace fairness regulation as “Reinstatement/Just Cause” legislation. There is a reason, however, why I have put this lower on the spectrum than unionization.

The existence of reinstatement and just cause is much more effective in a unionized work environment than in a non-union work environment. The reason for this is practical – in a non-union workplace the employee in virtually unprotected from acts of reprisal by employers who are grudgingly forced to take an employee back. The employer can always find some excuse to fire the employee – through restructuring, downsizing, etc. It is not so simple in a unionized work environment where the employee has the full support of the union behind her.

This is not to say that such legislation is meaningless, or unadvisable. But at the end of the day, by providing no further support for a returning employee, this does not amount to effective protection of workplace fairness.

4. Changing the nature of unionism
So what is the solution then? In my view there are two prominent measures that must be put in place to promote effective workplace fairness:

Promoting liberal democratic view of unions
The first such measure will require the cooperation of governments, employers, unions and the public. And this comes from revisiting the original purpose of unionization in liberal democratic societies. We must promote and enhance a liberal democratic view of unionism.

Professor Roy Adams clearly articulates this view as follows:

Collective bargaining is an inherently good thing and the preferred process for making democracy effective in the economic sphere of society. Thus, it should be freely accepted as the norm by employees, employers, and society as a whole. Thus the proper role of government is encouragement of collective bargaining, not neutrality.

The liberal democratic view of unionism is not one of class struggle, but simply the free expression of the desire among employees to band together to negotiate just and favorable conditions of work. It is the vehicle for instituting the rule of law in the workplace.

In order to achieve this liberal democratic view and defeat the de facto (“us versus them”, class struggle analysis) a number of attitudes must change:

1. Unions must be seen, and must see themselves as partners in the management of conflict in the workplace
2. Unions and employers must cease to see themselves as enemies, but rather as cooperative partners in the success of the business. This may mean letting go of numerous tired assumptions about seniority preference and other ideas standing in the way of effective decision-making.
3. Unions must abandon the class struggle analysis in favor of a view of unionism as the democratic expression of their right to workplace fairness. While they have a role to play in informing public opinion, they should be promoting the liberal democratic face of unionism in doing so.
4. Governments, as noted above, must cease to act as so-called neutral third parties and should actively promote the liberal democratic version of unionism as the most effective means of achieving workplace fairness. Governments must move beyond the bear enactment of collective bargaining legislation, to the effective enforcement of it, and most importantly the active public support of such legislation and of unionism in general.

Substituting Mediation - Arbitration for strike lockout as a remedy
The second measure involves the dispute resolution mechanism. The liberal democratic version of unionism will never come to dominance unless the essential dispute resolution mechanism is changed from the power-based strike-lock/out to the interest and rights based mediation-arbitration as a remedy.

Now Tim informs me that in Australia the government has gone in completely the wrong direction on this issue. They have moved from mandatory conciliation and arbitration to the strike lock-out paradigm in 1996. It is no small wonder why the liberal democratic vision of workplace fairness is in such disarray in this country.

At present, most of what is perceived negatively regarding unionization relates to the use of strike lockout as a dispute resolution mechanism. Work stoppages, people disrupting others’ lives, strike line violence associated with scabbing, and the process of gearing up for a labour relations war, all have a negative impact upon the liberal democratic view of unionization.

If the purpose of unionization is to ensure workplace harmony, then this can be accomplished through consensual mediation-arbitration as a remedy to contract disputes. In mediation-arbitration both parties must convince a neutral third party of their need for change or their need for stability. Reference is made to fair and reasonable external standards. And if the third party cannot help the parties reach agreement on their own, then the third party makes a decision and the matter is closed. No strikes, no lockouts, no disruptions, no negative press campaigns, no labour relations war – simply a just and reasonable resolution of disagreements between partners in the management of workplace conflict.

The quicker we get away from the Golden Calf concept of unionism and start seeing it as the clearest articulation of the Golden Rule (the original golden rule that is), then the quicker we will achieve true workplace fairness.

THANK YOU - Thank you for allowing me to speak with you today.

The Self-Help Focus: The Third Focus of Efficiency

2007-03-17T20:10:00.000-07:00

The ultimate sign of an effective fairness system is one in which the participants feel comfortable resoloving thier own conflicts without the aid of third parties or appeal to authority. The Self-Help focus encourages workplaces to develop self-help strategies and training for participants. The conditions necessary for self-help to flourish are related to both interest and rights based options. In order for self-help to be effective there must be sufficient participant training in the fundamentals of interest based negotiations. In addition there must be sufficient safeguards against acts of reprisal for attempting a self-help strategy. Generally speaking the Protection Focus in the Justice Quotient will have a relationship with this focus - as will the education focus in the Efficiency Quotient.

Focus on Alternatives: The Second Element of Efficiency in Workplace Conflict Management Systems

2007-02-13T13:45:00.000-08:00

What do we do when interest-based techniques will not work? This happens for a variety of reasons: lack of trust, instability of relationships, conflict styles, workplace cultures, non-workplace cultures, to name but a few.
The Alternatives Focus measures the extent to which the workplace fairness system makes provisions for these inevitabilities. The alternative provisions include investigations, findings of fact, early neutral evaluations and arbitrations. It provides the parties with a neutral evaluation of the issues rendering it easier to manage.
The Alternatives Focus also considers the cost, preferring lower-cost options to the higher cost ones. Instead of devoting tens of thousands of dollars to an expensive arbitration, the fairness system will call first for an Early Neutral Evaluation to give the parties a non-binding view of the matter. Alternatively, the fairness system may use managerial mediation as a low-cost form of dispute resolution to resolve a deadlock. The manager provides a low-cost power-based solution by imposing a decision upon them.

Focus On Interests: The First Element of the Efficiency Quotient

2007-02-11T06:39:00.000-08:00

When creating the theory about an "efficiency quotient" I was much influenced by the Dispute Systems Design movement and the later Integrated Conflict Management Systems paradigms. In reviewing their work I found that their primary argument for systems analysis and design was efficiency in the management of conflict. This is most clearly the dominant theme in workplace consultancy in general.

And at the core of "efficiency" is the need to ensure workplace participants have their interests met. The theory suggests that workplace participants should focus on interests rather than positions for successful conflict management. The Interest Focus measures the use of processes that lead to interest-based solutions. Interest-based processes are less formal and directed at managing conflict regardless of whether there is a right associated with the conflict and regardless of who holds power in the conflict.

The problem with rights or power-based options is that they may cloud the underlying interests. And for conflict to be truly managed, the underlying interests must be met. Interest-based options nurture relationships and strive to resolve the submerged conflict. The goal is to address the conflict in a wise and efficient manner rather than to either ignore the conflict or run away from it. Therefore interest-based options are well suited to a workplace fairness system.

Many consider interest-based options to be inefficient compared to rights or power-based options. Rather than wasting time trying to get consensus on a path forward, some argue it would be much more efficient for a manager to just make a decision.
The task of a fairness system is to balance long term efficiency with short term expediency. Managerial decisions on important matters of conflict are expedient. They “resolve” the matter at hand in a short period of time. The problem with such resort to the power-based option, however, is that it does not always resolve the conflict – or resolve the underlying issues that will lead to further conflict. The Interest Focus measures half of the equation – long term efficiency. The Timeliness, Alternatives, and Flexibility Focuses measure the other half – expediency.

The Efficiency Quotient: Measuring Beyond Justice

2007-01-19T13:51:00.000-08:00

This second series of articles will explore the "Efficiency Quotient" in the measurement of fairness in workplace conflict management systems. Efficiency is vitally important to a conflict management system. A system cannot be truly Just or Engaging without it also being efficient.

While the Justice Quotient measures how well the participants are treated and supported, the Efficiency Quotient measures the smooth operation of the fairness system. In the following articles we will consider the seven focusses of efficiency:
- Interests: Emphasis placed upon meeting the workplace participants’ interests
- Alternatives: How well the fairness system provides for alternative measures
- Self-Help: measuring encouragement for individuals to resolve their own conflicts
- Cost: How cost effective the fairness system is
- Flexibility: How well it allows managers to craft good solutions
- Education: How well the system educates participants
- Timeliness: How quickly matters are resolved

By considering these seven focusses, it is possible to measure the efficiency of a workplace conflict management system. We will consider each of these focusses in turn in upcoming articles. In the meantime, for those who have not read earlier articles on the topic of measuring workplace fairness, it is important to note that Efficiency is but one of four crucial measures of a conflict management system. The other three are Justice (which we have already explored)and Engagement and Resource Sufficiency - which will be discussed after the Efficiency articles.

Please feel free to comment on any of these articles. Tell me what you think of the measures. Are they too narrow or too broad? How can they be refined?

Lawyers Appreciate Fairness

2006-12-23T21:26:00.000-08:00

This article was inspired by Vickie Pynchon of settle-it-now blog http://www.negotiationlawblog.com/ who tagged the workplaces that work blog on the topic of what lawyers appreciate.

It may come as a surprise to some people to learn that most lawyers strive for fairness in their dealings with others. This includes their own clients, other lawyers and even opposing clients. While it is clearly understood that the parties are in competition with each other - there is still an overriding sense of fairness that guides the actions of lawyers. As this blog is devoted to workplace fairness I thought it appropriate to mention that many lawyers strive for fairness in their own workplace through their dealings with other workplace participants.

I have chosen to tag three other canadian bloggers

Steve Raymond
http://www.raymonddisputeresolution.blogspot.com/

Michael Fitzgibbon
http://labourlawblog.typepad.com/

Alan Revich
http://www.workitout.ca/weblog/

Best wishes to you all on this holiday season...

Mediation Without Borders

2006-12-23T12:58:00.000-08:00

On this holiday season, my mind is drawn to just how lucky most people are in the Western world to be blessed with relative peace, prosperity and security - where we can tackle injustice in our everyday lives. This site is devoted to a preoccupation that is perhaps more relewant to a relatively self-actualized society: workplace fairness. But there are societies that are far less fortunate, riddled with strife, poverty, and uncertainty. It is to those parts of the world that my thoughts travel during this season.

My friend Vickie Pynchon suggested that I look into Mediation Without Borders as a socially progressive activity for mediators and other ADR practitioners. I had a look, and I am very impressed with this idea. This very worthy service is so needed in a world full of strife. A quote from Vickie's blog says it all:

MWOB is a non-profit provider of pro bono conflict resolution capacity building within post-conflict communities.

A key goal of MWOB is to develop indigenous skills for group facilitation, public dialogue, strategic planning, collaborative negotiation, and peer mediation.

The concept is for teams of volunteer mediators to conduct skill-building workshops consistent with the norms, values, and culture of the locale.

The Mission is to increase the capacity of hostile communities to prevent, resolve, and recover from violent conflict. An array of conflict alternatives can be explored by strategic integration into the political, economic, and social institutions. The same team would volunteer for between 1-3 weeks per year, over a number of years in the same country, to build sustainable initiatives and to develop local peacemakers and peacekeepers

I would encourage everyone to get involved. A small donation will help the organization get started. I believe they are only asking for $1 a day. I can't wait to make my donation to this very worthy cause.

Focus on Legal Requirements: The 8th and Final Component of a Just Conflict Management System

2006-12-18T08:47:00.000-08:00

One of the most significant dangers of ADR in the workplace, is the temptation to assume that informal processes can trump the external legal rights of workplace participants. Let's take, for example, the situation where the employer insists upon a mediation process to resolve a human rights discrimation case. Mediation diverstion can be extremely successful for such cases in the right situations. This time, however, the employer insists that the employee sign a document stating that this mediation process will take the place of any adjudication through the human rights process. Clearly, in Canadian jurisdications at least, this would be viewed as an improper demand - and would not likely stand up in the external legal processes available.

The fairness system should not overreach its authority by infringing upon the legal rights of the participants. Decisions must be considerate of the legal entitlements of participants and invite legal counsel if needed. For example, if mediation ends with a signed agreement that precludes a participant from seeking further redress in the common law courts, the participants should be aware of their options. Where legal entitlements are effected, participants must have appropriate legal advice. The mediator could make a tentative agreement and defer the final decision until the participants have obtained legal advice. Alternatively legal advice could be engaged as a part of the mediation. Thus, the Legal Focus measures the extent to which the fairness system protects the legal rights of the participants.

This concludes the first part of this series of articles on the elements of fairness in workplace conflict management systems: the Justice Quotient. The next series of articles will explore the measurement of Efficiency in workplace conflict management systems.

Become a Fairness Systems Analyst

2006-12-05T19:05:00.000-08:00

As I posted earlier, there will be a one day training session in Ottawa on February 15, 2007 in conjunction with the Workplace Fairness Institute and MDR Associates. This one day session will introduce participants to the tools set out in Workplaces That Work to define and analyze the fairness of workplace conflict management systems. Completion of this course is the first step to certification as a Workplace Fairness Analyst. As an analyst you will be certified by the Workplace Fairness Institute to carry on audits of workplace conflict management systems. Check the link for details.

Why Fairness Matters To Employers Who Need to Attract and Retain Younger Professionals

2006-12-01T15:03:00.000-08:00

A couple of days ago I was speaking at a conference in Vancouver to a conference of HR professionals about how to measure the fairness of workplace conflict management systems. The topic of the conference itself was how to attract and retain staff in a war for talent. I was fortunate to hear a presentation from a major Canadian telecommunications company about different demographic groups and what motivates them. What I found confirmed my own research in this area - that younger employees (i.e. those born in 1982 and later - who are refered to as "millenials") have a very different attitude toward work and authority in the workplace than their older counterparts (i.e. the baby boomers 1943-64 and Generation X'ers 1965-1981). According to the marketting research of this firm Millenials:

- have a realistic outlook toward life;
- are oblivious to authority;
- are committed to success;
- believe in decisions that are for the good of the world around them; and
- look for meaning in the work that they do.

(source:"Employer of Choice: Talent Attraction and Retention. Insight Conference, Vancouver November 2006)

Implications for this in the fairness of conflict management systems are clear. Millenials - especially the more talented and sought after professionals)are not afraid to leave an employer who they consider to be "unfair" whether it be in the way they treat the outside world, or the workplace itself. In fact they would choose to move to a new employer rather than have their reputation tarnished in any way by a negative conflic in the workplace. Success is important to them. But they are much more interested in work-life balance than their earlier generations. Moreoever, they are realistic. They know that unresolved conflict can lead to a very negative work environment. They do not believe that authority will fix the problem.

Therefore, if your company seeks to attract younger staff and retain the staff you have, it is extremely important to ensure conflict is managed fairly and efficiently. Conflict is a distraction that will simply not be tolerated by those who have options and are motivated to succeed.

Focus on Enforcement: The 7th Measure of Justice in Workplace Conflict Management Systems

2006-12-01T14:52:00.000-08:00

So you have finally reached an agreement to that long outstanding conflict in the workplace. The agreement requires a number of actions upon the employees involved in the work group and also requires that the manager take a diversity training course. Most of the actions are fulfilled within the first couple of weeks, but this item remains outstanding for months. The manager complains of a lack of time and available resources to get the training done and all the other work that is required. How does this reflect upon the strength of your conflict management system? And what happens when a conflict is resolved upon a certain understanding and then one of the parties does not live up to it? The answer to this is rather simple. An agreement to end a conflict is like a contract. When one or both of the parties refuses to live up to the terms of the contract, and there is no way to compel the person to do so, it creates cynicism in the process, and bitterness between the parties in conflict. Further conflict will arise, not just about the substance of the original conflict, but now about this lack of enforcement. Others will get involved in this new conflict. And in fact the system itself will be called into question by the participants.

No conflict management system will be considered “just” by participants unless the agreements and decisions arising out the system’s operation are enforced in a direct and timely manner. Often one of the fatal flaws of a system is that it fails to enforce agreements. This leads to lack of confidence in the system’s fairness to individuals who have invested their trust in the results of the system’s use. The Enforcement Focus measures the systems in place to ensure that agreements and decisions are enforced.

Focus on Procedural Fairness: The Sixth Measure of Justice in Conflict Management

2006-11-17T10:49:00.000-08:00

Often when asked about whether they have recieved justice, many employees will say "well at least I had my day in court." What this really amounts to is that they had a sense that there was fairness in the process by which a decision was made. This refers to procedural fairness. They may not have liked the result but they were satisfied that the process to get there was fair. Conversely, where the process is not fair, workplace participants will feel that a further injustice has been done to them.

The Procedural Fairness Focus measures how well the system enables the participants to feel that they have been heard, that their issues are taken seriously, and that the results are based upon fair standards. It measures how transparent, rational, predictable and unbiased an adjudicative component of the process is. It also measures access to an adjudicative process if necessary. This is related to the Efficiency Quotient in that speed and efficiency of the process are also a measure of its procedural fairness.

The Procedural Fairness Focus also measures the extent to which there are adequate resources in the system to ensure it is running fairly. The system must have resources to quickly process the conflicts, and avoid any attempt to scuttle the process through procedural delays.

One of the fundamental tenants of due process is that decisions are made rationally and objectively. Investigators and tribunals must be concerned with the facts and not the status of the parties or the political implications of their decisions. The Procedural Fairness Focus measures the consistency of rulings. In a free and democratic society we expect court and tribunal systems to follow procedures, apply rules of evidence, and to heed the sanctity of jurisprudence. This expectation also exists in the workplace. It is not necessary to make a Perry Mason style court case out of every conflict. But where adjudicative processes are used, there is an expectation of procedural fairness. This applies especially to the opportunity to be heard and to know the nature of the conflict from the perspective of the other workplace participants.

Finally this Focus measures the extent to which the system is visible. How periodic and extensive are communications to the participants; how effective is the system in reporting results (i.e. statistics concerning the number and types of conflicts handled)?

Looking for Tips on How to Market Your Mediation Practice?

2006-11-12T19:27:00.000-08:00

I can recommend two very excellent people for this purpose. The first is Kristina Haymes of Mediation Marketing Institute. You can check her out by clicking "mediation marketing tips" on the side bar. She has a very interesting practice helping mediators find their niche and giving them solid advice on how to reach clients. And the second is Dina Lynch from ADR Practice Builder. You can reach her at ADRPracticebuilder.com. Dina also has connections with the Ombuds community so is a good resource for those interested in a practice in systems analysis and design.

I highly recommend both of these practice consultants because they both have strong faith in the value of ADR processes. They both have a passion for social transformation which makes them especially effective in their efforts to build practices with their clients. And they both have ADR practices of thier own - which means they know what they are doing. If you are looking for that personal touch to marketing your practice both Kristina and Dina are good choices.

Focus on Support: The Fifth Measure of Justice in a Workplace Conflict Management System

2006-11-10T09:43:00.000-08:00

This is a continuation of the series called "The 25 Measures of Fairness in Workplace Conflict Management Systems."

I have noticed that many workplaces have invested their energies into creating sophisticated conflict management options that end up being underutilized by workplace participants. One of the primary reasons for this is that some options, (like arbitration for example) are impractical for use by workplace participants relying solely on their own devices. Often these options are of little value to those who do not have the proper advice, guidance and advocacy in the use of the system.

The Support Focus measures the advice and advocacy the participants have access to. This Focus is especially important where a rights-based or adjudicative process is built into the system. Workplace participants do not always have the experience or training to properly articulate their interests and views on the conflict in question. Some workplaces designate staff to support participants. This is frequently how an Ombuds office is used in larger workplaces. The Ombuds staff assists workplace participants to bring their conflicts to the table and monitor compliance with decisions. HR may play a role here or the fairness system may call for a self-selection of an “advocate” from the workplace community. Often this is a senior, respected member of the community selected by the participant.

And of course, where there is a unionized workplace, the union plays a central support role for the employee (and HR plays a central support role for managers). In either case, a great deal of resources are devoted to the workplace participant. The union will represent an employee through each stage of the process - providing legal and practical advice, and in fact paying for lawyers in some cases to advocate for the participant.

Where there is no union, a great deal of attention must be paid to this focus. Workplace participants will not raise issues if they are not supported through the process.

Join Me In Ottawa!

2006-11-02T19:39:00.001-08:00

Below is an announcement for my upcoming seminar on measuring the strength of Workplace Conflict Management Systems.

MDR Associates and the Workplace Fairness Institute proudly present Making Workplaces Work, a one day workshop with a diagnostic tool to test the strength of workplace conflict management systems.

This workshop will be run jointly by Richard Moore of MDR Associates and Blaine Donais of the Workplace Fairness Institute.

Participants in the workshop will receive a copy of the book: Workplaces That Work: A Guide to Conflict Management in Union and Non-Union Work Environments (Aurora: Canada Law Book, 2006).

The seminar will be of particular interest to:

-HR Professionals
-Managers
-ADR Professionals
-Workplace Consultants
-Union Representatives
-Organizational Design Professionals
-Conflict Management System Designers
-Ombuds
-Diversity Departments
-Change Management Professionals

Attendees will gain a powerful tool to help them:
- define their workplace’s conflict management system
- test the system’s strength
- uncover weaknesses in the system
- develop a strategy for improving the system.

Cost: $500 + GST (which includes the cost of the book, a value of $79.00 + GST)

Place:
MDR Associates Conflict Resolution Inc.
201-280 Albert Street
Ottawa, Ontario K1P 5G8
613-230-8671 or 866-212-8022
Fax: 613-238-3340
Email: nmurphy@mdrassociates.ca
www.mdrassociates.ca

Date: February 15, 2007

Redux on the ACR Conference

2006-11-02T19:17:00.000-08:00

Last week I went to the Annual Conference of the Association For Conflict Resolution (ACR) in Philadelphia. It was an honour to speak at the conference on the topic of Measuring Workplace Fairness. Our small room was packed with interested workplace practitioners. I introduced my theory of fairness and showed participants how to use the Testing Instrument for Fairness Systems (TIFFS) to measure the strength of thier conflict management systems. I was also most pleased to be welcomed into the Workplace Section ACR. This is a vibrant community of workplace practitioners. One of the Tri-Chair's is my friend Debra Dupree from the Pulse Institute.

Other very interesting people I met were:

- Catherine O'Brien: Canadian Association of Professional Employees (CAPE
- Judy Curme: AFSCME local 2620
- John Ford: Managing Editor - mediate.com
- Michael Dickstein: Mediator/Arbitrator
- Barbara Swartz: Mediator
- Candace Gottlieb: Workplace Mediator
- Stephen Ktoev: American Bar Assocation
- Pattie Porter: Workplace Mediator
- Ken Starr: Mediator-Arbitrator
- Neil Bodine: Attorney
- Connie Ferris: ADR Program Manager
- Denese Edsall: HR Manager
- Shari Swoish: Workforce Solutions Plus
- Bill Eddy: Mediator/author
- Margarita Canal: Professor
- Erica Sher: conflict coach and mediator
- Professor David Lipsky: Cornell University
- Stephanie Stobbe: Professor - University of Winnipeg
- Steve Critchley: Pulse Institute
- Gina Barbieri: Executive Director, African Institute of Mediation
- Eskandar Rastegar: Ombudsperson, United Nations
- Tanis Sourdin: Professor of Law and DR, La Trobe, Australia
- Kevin Brown - Mediator
- And of course, who could forget Kristina Haymes of Mediator Marketing Institute?

The ACR community is vibrant and engaging. It was such a pleasure to share theory and practice ideas with so many workplace consultants, coaches, mediators and abitrators.

Focus on Protection: The Fourth Measure of Justice in a Conflict Management System

2006-10-21T20:08:00.000-07:00

Often I have heard from employees and even managers that the conflict management system looks fine on paper, but they do not feel comfortable using it. "It will hurt my career. It will make me look like a whiner. It will cast me in the role of trouble maker. If I get involved in this, I will be fired." These are common responses by employees and line managers in crisis who need access to an effective conflict management system.

Conflict will go unaddressed unless employees are protected by the system. The Protection Focus rates the degree to which actors feel safe to raise issues. A workplace participant who fears retaliation will avoid participation in conflict resolution. Similar to the Applicability Focus, there must be evidence of protection from retaliation for open dialogue to occur. This is especially true for performance-paid employees. Since the employer is in charge of performance evaluation, assignment of work and promotions, employees are vulnerable to subtle reprisals from management actors. The fairness system must discourage retaliation from other workplace participants, especially those in positions of authority.

One way to discourage reprisals is to concentrate on interest-based options. This has the advantage of engaging the participants and sharing the victory. The less litigious the fairness system is, the less likely it will give rise to retaliation. Participants need sufficient buy-in to trust the other actors and the system’s results.

Another way the system can minimize retaliation is by protecting participant confidentiality. In many cases this may be difficult. Nevertheless, a high score on the Protection Focus will depend upon the care to which the system guards the confidentiality of its participants.

Finally, the system should discourage parties from taking the law into their own hands. The conflict management system must impose consequences on those who retaliate, and reward those who cooperate by meeting their interests.

Focus on Independence - The Third Justice Measure

2006-10-19T11:10:00.000-07:00

Who is in charge of your conflict management system? Who makes decisions about changes to the system? And who is that person or those persons responsible to? These are all questions related to the independence of the conflict management system.

The Independence Focus measures how secure the fairness system is from employer arbitrariness and manipulation. Without independence, the system is incapable of meeting most of the other Focuses. While the system need not be totally separate, it must be independent enough to be unbiased. For example, the system must have the power to get the facts of the case. It cannot operate effectively without access to all the information necessary to make a fair decision.

A fairness system will score high on the Independence Focus when it can operate free of external pressures. This is not meant to challenge the employer’s right and responsibility to manage and make decisions in the normal course of business. Decision-making responsibility for business rests with the employer. This Focus measures how well the system is protected from the misuses of that responsibility.

Focus on Applicability: Another of 8 Justice Measures

2006-10-17T11:17:00.000-07:00

Of all the measures of fairness in conflict management systems, I have found that applicability is the most difficult to achieve. Often I will hear managers or human resources people say, "You cannot submit this decision to the conflict management system - this is a management function. This is management decision-making and it cannot be second-guessed. To do otherwise would undermine the whole employer-employee relationship." Generally in response to this declaration I ask managers whether they ever make decisions that are unreasonable. When they invariably say no, then I ask, "well what do you have to worry about?" After a bit of grumbling I usually find that the manager in question will agree that it is a good idea to test the fairness of some management actions.

The Applicability Focus measures the extent to which all actions are subject to the fairness system. A fairness system that excludes certain actions leaves itself open to abuse. For example, a system that covers discipline but does not allow an employee to challenge their performance review provides an avenue for a manager to exact revenge upon an employee. This infringement would also be reflected in the Protection Focus (see as will be explained later) which emphasizes the need to consider this systemic weakness. A properly functioning fairness system need not submit all employer actions to review by a third party. But it should ensure that there is a forum to discuss those actions. Moreover this Focus should cover co-employee disputes. A high score on the Applicability Focus requires conflict management system that resolves conflict regardless of the issues or the positions of the parties involved.

And this also has a significant impact on how much engagement there will be in the conflict management system. If critical actions and decisions are exempted from the conflict management system, then the system will lack credibility in the eyes of workplace participants.

Therefore, a conflict management system can only be considered just and fair if it includes all critical decisions that can be made about workplace participants regardless of where those decisions come from.

Focus on Access: One of the 8 measures of Justice

2006-10-14T19:45:00.001-07:00

Earlier I promised that I would thoroughly explain each of the 25 measures of workplace fairness. According to my theory, fairness can be both measured and achieved in conflict management systems. In our last installment I generally discussed the notion of Justice as one of the four pillars of Fairness. Now I will focus in on the first of 8 components of Justice: Access.

In Workplaces That Work, I state rather boldly that for a fairness system to properly work, access for all workplace participants must be a right not a privilege. Where membership is tentatively bestowed and withdrawn at the discretion of a superior, an participants are defenseless. Limiting Access to the conflict management system creates unequal classes of workplace participants. This in turn leads to discredit the whole system as cynicism overwhelms to purpose having the system in the first place.

While it is relatively easy to understand the need for unlimited access to a conflict management system, achieving complete access can be very challenging. In gauging the Access Focus, then, it is important to consider what steps are taken to make the system accessible to as many workplace participants as possible. This will be a challenge for many workplaces. There is a temptation to make distinctions between workplace actors. For example, a conflict management system may include the engineers and other professionals but exclude management actors. Without access to the fairness system management actors would have no place to go to resolve their conflicts.

There may in fact be a different fairness system for different workplace participants. This is acceptable so long as each fairness system secures access to the intended participants and all participants are covered by one system or another. This will be problematic, however, where one fairness system is demonstrably more provident than the other. This will engender cynicism about workplace fairness as some participants feel they are treated as second-class.Participants generally fear that raising an issue will harm their careers, and might even engender reprisals. Therefore access to the system should have multiple entry points with more confidential and interest-based options where desired. This is important when considering the mind-set of people in crisis. They need access to a system that will help them manage the conflict in their own way.

In the next installment, I will discuss the Applicability focus of Justice as it relates to the Theory of Workplace Fairness.

The Book Launch Was a Smash Success!

2006-10-12T11:28:00.000-07:00

I could not have imagined it any better! The humble book launch I had planned to have at Arbitrator Elaine Newman's bar in Toronto, turned out to be a great party with well over 100 friends, students, lawyers, ADR Professionals and both union and management labour relations professionals attending. People from all around Toronto and even as far away as Ottawa came to the launch. Here is a sampling of the people who attended:

Management Side
Ivars Starasts, Manager of Labour Relations, Ontario Power Generation (OPG)
Lorraine Irvine, Vice President of Compensation and Benefits for OPG
Glen Gurba, retired Directer of Labour Relations (OPG)
Rhae Naphan, Manager of Human Resources, OPG Hyrdroelectric
Jim Twomey, Executive Vice President of OPG Energy Production
Jason Fitzsimmons, Manager of Labour Relations OPG
Matthew Dowdle, Labour Relations Officer OPG
Alex Brat, Director of Labour Relations, New Horizons Systems Solutions
Bruno Iannacito, Employee Relations Consultant, Toronto Transit Commission
Bill Warrel, Executive Director, LAMP

Union Side
Rod Sheppard, Executive Vice President, Society of Energy Professionals SEP
Marlene Khalil, Local Vice President, OPGN, SEP
Joe Sarick, Local Vice President, NHSS, SEP
Peter Tien, Unit Director, NHSS, SEP
Kathy Wilcox, Unit Director, NHSS, SEP
Jay Monterio, Unit Director, NHSS, SEP
Simon Huang, Unit Director, NHSS, SEP
Frank White, Research Officer, SEP
Brian Robinson, Communications Officer, SEP
Cheri Funston, Staff Officer, SEP
Laura Langmaid, Office Staff, SEP
Lynda Crichton, Training Officer, SEP
Chris Dassios, Senior Legal Counsel, Power Workers Union (PWU)
Garil Lampman, Shop Steward, PWU
David Loney, Staff Representative, Ontario Public Service Employees Union (OPSEU)

Neutrals
Stephen Raymond, Mediator-Arbitrator, Vice-Chair Grievance Settlement Board
Laura Trachuk, Mediator-Arbtrator
Jules Bloch, Mediator-Arbitrator
Peter Chauvin, Vice-Chair, Ontario Labour Relations Board
Mundy McGlaughlin, Past Director Diversity, OPG, Workplace Consultant
Sarah Atkinson, Workplace Investigator
Kathleen Martin, Mediator-Arbitrator, OHRC Appeals Tribunal Member
Roger Altan, Workplace Investigator
Paul Emond, Professor of Law, Mediator, Owner of Emond Montgomery Publishers
Gary Furlong, Mediator
Shirley Drayton, Patient Care Manager, Sunnybrook Hospital
Eleanor Shannon, EPS Consultant Services
Karen Coles, Senior Executive Conference Developer, Insight
Elaine Newman, Mediator-Arbitrator
Dr. Bruce Ally, Mediator-Arbitrator
Lisa Tenace, Department of National Defense Ombuds Office
Lynn Bevin, Mediator-Investigator, Workplace Consultant
Dawna Borg, Mediator
Owen Gray, Mediator-Arbitrator
Joyce Young, Mediator

I was most honoured to have Elaine Newman, Gary Furlong, Paul Emond and Rod Sheppard, four very special people, get up and say a few words about me and my book. I was somewhat overwhelmed by their kind encouragements and thoughtful praises. Then I had a few words for the crowd. I asked them to look around to the people in the room - as this best exemplifies what my book is all about. We are all a part of the workplace conflict management team. And when it comes down to it, workplace fairness begins with respecting the roles of those who are trying to protect fairness.

While I was signing books, I received a call from my friend Andrew Muller, President of the Society of Energy Professionals who could not make the launch because he was in Quebec City. Andy wished me well, echoing emails I had recieved from many colleagues who could not make it on the day. Kevin Whitacker, Chair of the Ontario Labour Relations Board was one of those who could not make it but took the time to give me a thumbs up for my accomplishment.

As the party neared its end I had two gratifying conversations. The first was with Elaine Newman who stated that this was the most lively book launch she had ever hosted, and the other was with Joanne Gordon from Canada Law Book who let me know that she was shocked at how many books we sold. She ran out of books after the first hour or so and had to take orders from the late-commers. That never happens at a book launch according to Joanne.

Anyway, this is one of those milestones that I will never forget. My family, friends and colleagues joined me in celebrating the birth of this book and of a theory of workplace fairness that I hope will mature and gain acceptance in the community.

Thank you Elaine, and thank you my friends, family and colleagues for making this a truly joyous ocassion.

Justice: One of the Four Pillars of Workplace Fairness

2006-10-11T12:08:00.002-07:00

In my research on the topic of workplace conflict management systems, I have uncovered two general schools of thought: one school I will call the Justice school and the other I call the Efficiency school. The Justice school came along very early in the study of workplace conflict management systems. I think it fair to say that justice was the primary motivation of the grievance-arbitration procedure developed for most unionized workplaces. This school featured prominantely in the post-war Western world as the primary factor behind the development of conflict management systems in the workplace. And for non-union workplaces a similar phenomenon existed through what was called the "due process" movement. Human resources professionals sought to emulate some of the conditions of a unionized workplace in non-union workplaces predominately in order to stem the flow of unionization. The theory behind this move was that lack of justice in the workplaces was a precondition for unionization. Therefore to stop a union drive, the workplace should have a system for resolving conflict that had some of the same characteristics. In the US especially this culminated in non-union grievance procedures throughout many workplaces.

The Efficiency school started much later with the introduction "interest-based" negotiations. From IBN came the idea that conflict management structures should contain features that were less aimed at "rights" and more aimed at "interests". The Efficiency school, of course, would not recommend the exclusive use of interest-based techniques for resolving conflict, but sought to integrate interest, rights and power based options. Today, the Justice school and Efficiency school are still alive and well. In every unionized workplace in the Western World one can see examples of Justice style conflict management procedures. And in both union and non-union workplaces there are increasing examples of what is called the Integrated Conflict Management Systems ICMS approach to systems design.

The purpose of this article is to introduce the idea of Justice as one of the four cornerstones of a healthy workplace conflict management system. The other three cornerstones are Efficiency, Engagement and Resources. Subsequent articles will deal with them.

So what is Justice and how is it measured?

The Justice Quotient measures all those concepts that one would find in a normal "rights" based forum for dealing with conflict. When you think of how a court operates, it is primarily concerned with Justice. Extraordinary measures are taken to ensure that participants have the opportunity to present their best case, to hear all the case against them and to have proper advocacy to ensure they know their rights. For the purposes of conflict management systems I have separated Justice into seven components or focuses:

Access
Applicability
Independence
Protection
Support
Procedural Fairness
Enforcement
Legal

Although I will be describing each of these focuses in greater detail in subsequent articles, for the purpose of understanding the Justice Quotient, I will say that each of these measures are critically important. A Just system:

ensures unlimited access to it;
covers all the actions of employers and employees;
is it is independant from manipulation;
protects and supports its participants;
ensures the right to be heard and to hear the case;
results in enforcable and enforced solutions;
and ensures the legal rights of participants are protected.

Without these components any workplace conflict management system would be considered weak in the Justice Quotient.

When trying to determine whether a workplace conflict management system has a strong Justice Quotient, it is important to ask questions related to the above criteria.

In the next seven installments, I will be describing in great detail each of these components.