Workers rights weakened by new laws – fightback needed

By Mike Treen,
National Director, Unite Union

(Reprinted from The Daily Blog)

The government’s changes to the employment laws are designed to weaken workers bargaining power – at both the individual and collective level.

30-day rule

The old law required an employer with a collective agreement in place to employ new staff on the terms of the collective for the first 30-days. This was seen as protecting the collective from being undermined by employing new staff on inferior conditions. With only 9% of the private sector workforce in unions , only a minority or workplaces in the private sector will have collective employment agreements. Even where they exist, like in the fast food industry where Unite has half its members, we often only have a minority or workers as members because the industry is 24-7 in small sites scattered across the country with a 100% annual staff turnover and usually with hostile owners.

This is hard to do in a minimum wage industry. It has been hard to move companies off that rate as a start rate. However we have succeeded in getting some steps built into the agreement for after six months or one year. A real danger would exist if a company offered staff a start rate that was higher than the collective but without some of the service steps that would apply later. Workers would be tempted to take the higher rate and not join the union and therefore the collective.

Breaks

The current legal right to a 10-minute paid break for shifts of two to 6 hours and a second plus a 30 minute unpaid break for shifts of four or more hours is being removed. The worker also loses the right to nominate that the shifts are spread evenly through their shifts. The employers obligation now is simply “provide [you] with a reasonable opportunity for rest, refreshment, and attending to personal matters” that is “appropriate for the duration of [your] work period.” When these breaks are taken is by agreement or failing that at the employers discretion. When an employer feels they can’t provide you with a break (or you agree) then they must compensate you for the loss with at least an equivalent.

Luckily nearly all the Unite Union collective employment agreements have the old legal requirements incorporated in them. In addition our agreements have a paid 15-minute break rather than the 10 minutes that had been in the law. But it has been a fact of life that it is difficult to enforce the agreements around breaks because workers are made to feel they are letting the team down if (as is often the case) the shop or workplace is understaffed. By making it a law in 2008 it gave workers more courage to assert their rights.

One small positive aspect of the new law is the assertion of the need for some sort of at least equivalent compensation if you miss your entitlement. In the past many workers will have worked through their paid breaks without compensation but now there is an obligation on the employer to at least provide equivalent paid time off. We actually had one employer argue in the employment authority that because workers were paid when working through their paid break there was no disadvantage.

Unite union defends workers breaks

Unite Union National Director Mike Treen presented the union’s submission to the parliamentary select committee discussing the proposed law changes in the industrial relations area.

Unite decided to focus its submission on a government proposal to remove the legal entitlements for breaks. Currently the law requires a 30-minute meal break after 4 hours work, a 10-minute rest break after working a minimum of two hours and a second 10-minute break after working six hours. The current law also allows the workers to decide to take their breaks in the middle of the relevant work periods if they aren’t able to agree to an alternative arrangement with their boss.

The new law simply says that breaks should be “reasonable” and compensation for missed breaks can be agreed.

The following article is based on notes used by Mike Treen to speak to the Unite Union submission to the select committee hearing on September 11.

 

Unite McDonald’s members Taylor Mcloon and Sean bailey and Unite Mational Director Mike Treen at the selct committee hearing on planned employment law changes

Getting breaks has been one of the biggest problems in the fast food industry.

The requirement for breaks as specified in either the employment contract or law has been routinely ignored.

Companies in this sector tightly control the labour hours allocated to stores.

Usually a bare minimum staff are available to managers to run a store. In that situation any absences or sudden rushes in demand makes it difficult to operate a store without all hands on deck all the time.

Workers are also extremely reluctant to let their mates down when a store is busy and won’t take their break.

A large number of migrant workers work in this industry and are often reluctant to assert their rights because they are hoping for a promotion to manager to pursue work or residence visa opportunities.

A company investigation of a KFC up north revealed the majority Indian workers in the store actually didn’t believe they had the right to a break.

There is usually no compensation clauses in employment agreements for lost breaks.

This industry, like the hotels and security where we also represent many workers, have what are being called “Zero-hour” contracts in the UK. This means there are no minimum hours stipulated in the agreement.

This gives enormous power to often young and inexperienced managers to use rostering to reward or punish a worker depending on how much you are considered a “team player”.

A worker who insists on their right to a break could find their rostered hours cut the following week. Reducing a workers hours is also used as a disciplinary tool for lateness etc without going through a proper process.

Breaks are of course important for health and safety. Company head offices always assured us that they told their managers that breaks should be given.

However we are dealing with the reality of an industry where there is a tremendous inequality of power between the young often migrant workers and the company generally or their store manager.

To be honest as a union we found it hard to even enforce the contract.

Prior to the law change there were no meal breaks unless you worked a 5 hour shift and no second rest break unless the crew worked a full 8-hour shift.

Rosters would be drawn up to avoid break entitlements but workers would end up working longer than their rostered shift without a break.

Workers would be rostered 5 hours with no meal break in the shift roster but end up working 6 or 7 because the store was busy. Similarly they would be rostered 7.5 hours with no second rest break planned for but end up working 8 or more hours without a second break.

Enforcing the contractual right to a break became easier when the law was changed. It was easier for workers to say “I want a break – it’s the law”. Making the meal break entitlement kick in after 4 hours and the second break after six hours was also helpful.

The collective agreements we have negotiated in the last few years have been able to largely include these legal improvements. But enforcement remains a challenge. We still have meal breaks being rostered after one hour into a shift. We still have people being rostered 4 or 6 hours but working beyond that time without a break or any compensation for missing it.

Only one company has agreed to compensation for missing a rest break (but not for missing the meal break) – McDonald’s. We are seeking compensation for missed meal breaks as well. From the wage and time records we have it seems workers have been working more than four hours without a meal break on average a 100 times a month in every store. Sometimes they will only work a few minutes beyond the four hours but often they worked 5 or 6 hours without a meal break. We will be arguing that issue in court but McDonald’s is not unusual in that regard. That is the situation for for tens of thousands of workers in New Zealand.

Having the legal obligation to provide breaks has made our job easier. We were able to improve the clauses in the collective agreements but also just the knowledge it was law made workers a bit more willing to speak up and be heard.

Without the law an industry with tens of thousands of workers would have continued to be serial offender on the breaks issue. Workers without the protection of a collective agreement will be in an even more impossible situation.

The desire for flexibility is one thing but when that flexibility means you routinely miss out on a basic right which is what did exist in this industry its a giant step backwards.

– See more at: http://thedailyblog.co.nz/2013/09/13/unite-union-defends-workers-breaks/?preview=true&preview_id=31250&preview_nonce=4c4adf86f5#sthash.nZgWmmF9.dpuf

McDonald’s workers claim $2.5 million in unpaid breaks

(Reprinted from HRM Online)

McDonald’s workers claim that they are being deprived of the breaks that are their legal entitlements, according to Unite Union. “There’s always been a problem in terms of getting breaks, and also getting breaks at the appropriate time,” Mike Treen, national director, said.

In the case of McDonald’s workers, Treen said that there is a particular issue. Workers are rostered on for four-hour shifts, so that they aren’t owed a meal break under the law, but then they remain for longer – up to six hours – without being given one.

“The problem is, workers don’t like to let their team mates down if you’re busy…there’s a natural generosity in people to want to pull their weight, and that get’s taken of advantage of too much,” Treen said.

Unite alleges that for the last six years McDonald’s has been depriving workers of their breaks, and that in the last two they have failed to compensate them for that under a clause in their contract.

Although McDonald’s has refused to give the union wage and time records, Treen said that they have made a rough calculation of what they company owes. “We’ve got print-outs of the wage and time records for two stores…and it was the same pattern in both stores and roughly the same amount,” he said. Treen said that if people were paid for the breaks that they’d missed in the last two years that they would be owed a total of $2.5 million.

The union had a mediation session over the question of breaks with McDonald’s last Friday. “They’ve gone away to think about it for a week,” Treen said.

“Under the new Act [the Employment Relations Amendment Bill], it’s entirely up to the employer…they don’t even specify how long the breaks should be or when they should be held – meal breaks or smoko breaks,” Treen said. Because of this, Unite is currently in negotiations with McDonald’s to have workers’ entitlements to breaks entrenched in their contracts.

A McDonald’s spokesperson said that the company was currently in mediation on the matter and was, due to the confidentiality of this process, unable to comment.

David vs Goliath

By Mike Treen

(Reprinted from The Daily Blog)

Unite Union discovered recently that McDonald’s has been breaking the law over breaks. In out attempts to fix the problem we have run into the legal might of a wealthy corporation and its contempt for “good faith”.

Unite Union discovered recently that McDonald’s has been breaking the law over breaks. In out attempts to fix the problem we have run into the legal might of a wealthy corporation and its contempt for “good faith”.

This is an important issue as the government is removing even the modest protections that exist in the current law on breaks and leaving everything up to the employer to decide – so long as they are “reasonable” of course.

The current law says that all employees become eligible for a 30 minute meal break once they have worked four hours. Our collective agreement has an added clause that if this is missed then the worker should be paid an additional 30 minutes as compensation.

We discovered that the company has been routinely working people over 4 hours but not rostering a meal break. If they do get a meal break it is often scheduled as little as one hour after starting the shift – again in breach of the law which stipulates it must be mid shift unless there is agreement otherwise. Our members were never given the option of agreeing or disagreeing.

Friendly managers gave us printouts of the hours worked by all staff in two stores. One was a McCopco store owned directly by the US parent and the other store is owned by a franchisee. All waged employees have to clock out and back in for their meal break but this does not apply to the shorter breaks. The reports clearly show that workers were routinely not being given a meal break if they were working shifts of more than four hours. It also showed that supervisors were regularly cutting their own breaks short because of short staffing. Neither group was compensated.

We asked the company for similar records for all our members. They claimed they were virtually impossible to access, located in Australia and would amount to millions of pages.

They then said that they would only supply them if we got individual authorisations from each member and that we would have to approach each franchisee separately as well. They have never demanded this additional authorisation before when we have requested wage and time information. We believe this is an additional breach of the law.

We applied to the Employment Relations Authority to enforce the law and the collective agreement and have a mediation set for today.

Then last night we received a letter from the company’s lawyer which claims that the collective agreement we have operated on for the last two years was not legal because the company hadn’t signed and returned the copy signed by the union that had been sent to them and the law requires it to be signed by both parties. This has never been raised before. We also have email exchanges confirming the document and a joint presentation from the company and the union that was taken out when it was voted on. And the company has claimed to be abiding by it for the last two years.

Today we have mediation on the issue. We will not let their legal shenanigans get in the way of our claim. We estimate it could cost the company $2.5 million so I can understand they are be worried. But I will be making it very clear to company that Unite Union is not going to be intimidated. We have a great lawyer and he is confident we can challenge and turn back all their legal tricks.

If they want to try and claim the collective agreement agreement doesn’t apply then they may well discover that they have opened a Pandora’s Box because the constraints will also be off as far as Unite is concerned.

More importantly we have the court of public opinion that will be making its judgement on this corporate thief which sacks a worker for putting an extra piece of bacon on a burger but hides behind lawyers when if comes to workers being robbed of millions of dollars in entitlements.

(Unite National Director Mike Treen has a blog hosted on the TheDailyBlog website. The site is sponsored by several unions and hosts some of New Zealand’s leading progressive commentators. Mike’s blog will be covering union news and general political comment but the views expressed are his own and not necessarily those of Unite Union.)

McD’s workers say “Give us a break!”

McDonald’s workers around New Zealand are taking action today with the message “Give us a break” because they claim that they are being cheated of their breaks by the company.

Unite Union National Director Mike Treen says that workers often miss their breaks or are rostered meal breaks an hour after they start work in violation of the existing law on breaks.

“We have filed a case with the Employment Relations Authority over one aspect of this. We have evidence that the company rostered workers for four hour shifts but worked them longer than four hours without providing a meal break. This is a clear breach of the law. In addition they company has breached the worker collective agreement because they also haven’t compensated the workers for he lost break as required by the contract.

A mediation session between McDonald’s and Unite is scheduled tomorrow on this issue.

“We estimate the workers have been cheated of at least $2.5 million dollars.

“We have the wage and time records for two stores covering a four month period. The evidence is clear. Now the company is refusing to give us wage and time records for all ours members to hide their misconduct which we believe is another violation of the law.

“A worker at McDonald’s will be sacked for putting an extra slice of bacon on a burger. Who in the company is being held accountable for stealing millions of dollars out of the pockets of minimum wage workers?

“The government’s plan to change the breaks law will only make the situation worse. If a major multinational employing thousand of vulnerable young and migrant workers can snub its nose at the law on breaks then what can we expect to happen at smaller workplaces in the country.”

Unite claims $2.5m “Stolen Wages, Stolen Breaks” against McDonald’s

Unite are submitting an employment authority case against McDonald’s today for unpaid breaks that the union estimates has resulted in unpaid wages of $2.5 million.

"We have wage and time records from two stores (one a McCopco store and one a franchisee) for the last four months that confirm a consistent pattern of not paying for lost lunch breaks – as they are required to do under the collective agreement," said Unite National Director Mike Treen.

"The company has done everything possible to stop us exposing their theft. They have refused to supply the wage and time records and are demanding we get every member to sign a new form authorising release of information to the union. But this stalling tactic won’t save them. We have been able to get enough information from members to prove our case despite the company’s refusal to supply the records officially.

"The law stipulates that workers who work a 4-6 hour shift must receive an unpaid 30 minute break. The collective agreement stipulates that if they miss the break they must be paid the 30 minutes. McDonald’s has simply ignored the law and the contract. They also ignore the requirement for proper scheduling of breaks with the worker’s agreement. members complain that when they do get a scheduled meal break it will be only an hour after they have started work.

"This case is a warning against weakening the breaks law which the government is planning to do. If a major company like McDonald’s can routinely ignore the law what have workers got at small companies.

"We have done a calculation for the two stores and we estimate the unpaid breaks for all staff to be $2700 for each store for the four months. Multiply that by 6 to cover the two-year collective agreement, and again by 160 to cover every store in the country – and the total owed is $2.5 million.

Unite members at McDonald’s have also voted 85% in favour of continuing action for a new collective agreement in what may be the first secret ballot under the new law.

"Our back pay claim and a proper breaks scheduling at McDonald’s will be part of our claims.

"We will be demanding every penny back one way or another," said Mr Treen.

We will be bringing the 6m high Rat out today at the 1pm outside the Greenlane store and head office for the first time in the campaign to highlight what we think of the company’s conduct.