Boosting Union Membership: Reconciling Liberal and Social Democratic Conceptions of Freedom of Association via a Union Default

Abstract

Deploying insights from legal experts in New Zealand, this article examines how a union default could strengthen unions and boost their membership, while reconciling conflicting liberal and social democratic conceptions of freedom of association. The insights are used to develop a broad framework by which a default system could work both in New Zealand and more generally. These insights are then applied to the case of Britain, wherein components of the institutional architecture, embodied in Schedule A1 of the Employment Relations Act 1999, could be appropriately amended.

Public support for a union default: Predicting factors and implications for public policy

“…Third, such union recognition procedures are often predicated upon what has been referred to as a ‘tyranny of majoritarianism’, whereby collective labour rights are denied until more than 50% of a given bargaining unit expresses support, typically via a vote. In the process, the legitimacy of substantial minority support, as a basis for commanding rights to represent and bargain, is excluded (Adams, 1993; Bogg, 2009; Harcourt et al, 2020). Though none of these reasons is entirely new or recent, we believe that a tipping point has been reached whereby enfeebled unions in these decentralised, deregulated, and thus increasingly asymmetrical, systems of industrial relations can no longer benefit from existing recognition provisions in a way they might have several decades ago.…”

The union default: Effects and implications of regulated opting‐out

“…There are two reasons why a 30‐day waiting period might increase the propensity to stay in membership and support a default. First, legal experts, interviewed for an earlier study about the practicalities of a union default, suggested that, with a 30‐day wait until opt‐out, new employees would be better protected from immediate employer pressure to opt‐out, and so would more likely remain as members (Harcourt, Gall, Novell, et al, 2021, p. 394). With a delay, employers would be denied the opportunity to coerce workers into opting out as a quid pro quo for a job offer.…”

“…Second, those aforementioned legal experts also noted that 30 days provides new employees an opportunity to learn about the union, its services, benefits, members and leaders, especially if not exposed to information about unions beforehand (Harcourt, Gall, Novell, et al, 2021, p. 394). After 30 days, employees are more likely to understand and appreciate the potential advantages of union membership (even if there would be little time to have exposure to representation and bargaining as experiential goods).…”

“…Thus, a union default would facilitate the freedom to associate with a union while preserving the freedom not to associate with a union (Harcourt et al, 2019). If combined with union recognition processes for sector‐based bargaining, a union default would make it much easier to recruit and retain members, especially in hitherto hard‐to‐reach sectors with many small employers and high staff turnover, such as shops, cafes and restaurants (Harcourt, Gall, Novell, et al, 2021). It could even be used to effectively recruit non‐union workers in already unionised worksites, a group commonly assumed to be forever non‐union by choice (Harcourt, Gall, Wilson, & Rubenstein, 2021).…”

“…Harcourt, Gall, Novell et al (2021) discussed how a union default might be adapted to suit different employment relations regimes, such as Britain and the US. The same study sought the views of 42 legal experts to explore how the default might be designed to function, more generally.…”