When things fall apart

“The best lack all conviction, while the worst

Are full of passionate intensity.”

“Things fall apart; the centre cannot hold;

Mere anarchy is loosed upon the world”

– William Butler Yeats

When world civilisations are all simultaneously going through a period of transition, as it certainly appears we are doing at the present, when the old, accustomed binary systems of thought and decision-making we were brought up to use as methods of guiding us through life are faster and faster being replaced by complex unitive approaches – no more either/or; no more either right or wrong; no more either lawful or unlawful; no more our way or their way, and we have to grapple with both/and – with the confusing blending of both science and philosophy, where astrophysics leads seamlessly into religion, and you wake up one morning and what you have always known is a “false fact” and even the old interpersonal relations and interactions are not what they seem to be; everywhere you look, you have to look again.

Industrial relations is not exempt.

Those of us brought up to respect the law are accustomed to looking to the Industrial Relations Act for guidance, but even there the clear light of reason does not always serve us well. And for new practitioners freshly out of academe, where every discipline was founded solidly on binary thought (other than in physics, which then can become wildly exciting), discipline can be not what it is supposed to be.

If we thought employment and industrial relations had to do with relations between employers and employees, for example, it may be somewhat disconcerting to discover that the Industrial Relations Act, while it has a definition for “employer,” has no definition for “employee”; but there is one for “worker.”

And in case you thought otherwise, “employee” is not the same as “worker,” although it contains “worker”; and is not the same as “manager,” although it contains “manager.”

The original drafters of the law, following common law, apparently depicted “employer” as a kind of “sole trader” or “owner manager,” not envisaging the evolution of a situation where an employer may employ many managers and where industrial relations between manager and manager can become far more contentious than those between worker and manager.

Why this was so has not been explained, because even back then, large enterprises employed multiple managers.

The famous woman pirate Ching Shih employed 3,000 at the peak of her career, and trade disputes were reputedly common among them (well, they would be, wouldn’t they?).

Although the distinction between matters of right in dispute-handling and matters of interest are the basis of all dispute-handling, neither term is defined in the act, or even stated.

So for clarification, a “matter of right” is something an employee has by “right,” once they are employed; and "employed" means hired orally, in writing by letter or contract, or “implied” by custom or practice – ie there is a law backing it somewhere, such as guys usually come along the beach foreday morning, and the captain of the boat usually takes them on to his boat. They usually work with him for the day, and he usually pays them an agreed amount.

That is an “implied contract” of employment, established by custom and practice, and confers on the employed person certain rights, such as the right to be paid the agreed amount, the right to be issued the standard safety equipment, etc.

A “matter of interest,” by contrast, is not something you are owed by law or the terms of your contract of employment or by a collective agreement if you are represented by a trade union; but it is something you are interested in getting.

You don’t get it automatically or just by asking or demanding it. You have to negotiate agreement with whomsoever you want to give you what you want, because that is the only way to get it. At least theoretically.

That is not true in the real world, of course. In the real world you can also get what you want by violence, war, rape, lying, threats, bullying, fraud and intimidation.

In the industrial-relations sphere these are not lawful, but they are not unknown, and all, disclosed, bring appropriate consequences, including automatic termination of employment, fines, de-certification, and, under some clauses of the act, possible imprisonment.

Despite their reputation, industrial-relations practitioners representing workers and managers tend to be pretty decent people when you get to know them, who would rather settle things amicably and do not intend to shut down the country to get what they want.

But, if and when these issues are between managers and managers, and they escalate into “trade disputes,” (like Ching Shih’s “managers,” who were as strictly regimented as the heads of funds working for HBSC) the parties cannot take their “matters of right” or “matters of interest” to the Ministry of Labour or the Industrial Court, because that is only for workers or their representatives.

So managers try to persuade the court that they are really “workers,” which is like a 40-year-old adult trying to persuade the fete ticket office that they are only 16.

But since there is no separate Industrial Court division in the legislation for them to take their manager vs manager disputes to, what is a “rights” dispute and what is an “interests” dispute will have to go to the civil court. This is considerably more expensive, does not deal with interests matters in the same way, and has to be handled by lawyers.

This may seem a little unfair to managers who feel that their matters of right are being denied them, but the law was drafted by lawyers who knew what they were doing.

Just ask them.