By Helen Kelly, President, Council of Trade Unions
Any day now the Government will announce more changes to the Employment Relations Act. These changes will drive down wages and undermine the conditions of all workers. They will also remove the small amount of protection most cleaners and hospitality workers get when the business they are working for loses a contract to another contractor.
The changes will be hard to campaign around. “Retain the Duty to Conclude” just doesn’t have a ring about it that will rally people into action. Key will say the changes are “adjustments” and minor. They will advertise the fact they are expanding the flexible working arrangements provisions to make it easier for people to request flexible hours (there provisions are fairly well useless for most workers).
CTU President Helen Kelly
There are lots of nasties hidden in the Governments plans. For example they will give the employer the right to deduct wages for industrial action like refusing certain duties that fall short of actual strikes (an aged care worker for example could still work 40 hours but refuse to prepare the rosters. The employer could deduct wages for this and say pay for only 36 hours etc). The law changes will also require all workers to give and withdraw notice formally before taking strike action or ending it. But the two king hit changes will take the law very close to the Employment Contracts Act (ECA) when combined with the previous changes, and is true blue worker hate.
The first major change will remove the current duty in the Act to conclude a collective agreement when a group of workers is seeking one. Currently an employer can refuse to settle on an issue (so for example if they disagree with a wage claim), but they can’t walk away on ideological grounds from the bargaining (i.e. not wanting a collective agreement at all). The new law will remove the obligation to conclude allowing instead for surface bargaining by employers who have no intention to settle. The law change in our view is likely to have a process to determine that that the bargaining has concluded (e.g. application to the Employment Court) even though settlement has not been reached – this is where the ghost of the ECA comes to life.
If bargaining is deemed concluded without a settlement, strikes in pursuit of a collective become unlawful (workers can only strike as long as the bargaining continues). Collective Agreements in NZ currently continue for one year after expiry to allow time for negotiating a renewal but only as long as the bargaining continues. This change will also allow the collective to end in an untimely way leaving workers without coverage and probably will allow the employer to promote “take it or else” individual agreements. The second nasty little piece of the jigsaw in the new law will remove the protection for new workers to be offered the collective agreement (where one exists) for the first 30 days of employment – instead allowing them to be offered inferior conditions – isolating them from the union and putting at risk those on the collective as the numbers covered by it diminish.
So how does all this fit together? Firstly securing a collective agreement will become much more difficult. Employers will use the provisions releasing them from the duty to conclude to seek concessions including over who is covered by the agreement. They will seek to exclude new workers altogether now they are not compelled to offer them the agreement. They won’t want new workers being able to bypass the new changes by simply joining the union to gain collective coverage.
Workers will be in an impossible bind:
- They can strike for a collective renewal – already high risk and difficult with low wage workers in particular, and face all the new difficulties.
- They can settle collectives that exclude new workers and watch the conditions of the collective and union membership whittle away as the workforce splits in two.
- They can campaign and hold out, risking a determination that the bargaining is concluded which will remove the right to strike all together and cancel the remaining term of the expired collective.
During all this time all types of undermining behaviour can be undertaken by the employer as new coverage options become available to them. Far from promoting collective bargaining as New Zealand’s international obligations require them to do, these law changes will again see workers effectively forced on to individual unilaterally determined by the employer.
The Employment Contracts Act allowed all these things to happen – limited coverage in contracts, individual agreement offers to new workers and union members when contracts expired, severe restrictions on the right to strike, opportunities for new workers to be exploited and de-unionised. It will be hard to explain to the public that this is in fact what the law changes mean – but workers will see exactly that when the rubber hits the road.
The law, if these changes go ahead, will still include good faith provisions and in that regard remains slightly superior to the ECA but without any outcome obligations this is a marginal benefit and these obligations will be effectively removed for all new employees who may also be on a 90 day trial period. You can imagine how companies like Talleys and the Ports of Auckland might use these new provisions.
The other massive change will be to Part 6A which offers protection to cleaners and hospitality workers when for example a building owner or sports facility choses to change contractors. The Government plans to remove these protections for workers who are employed by smaller companies. I will write more about this later but it is dire for these workers in regards to their employment security and wages and conditions.
We will campaign on these changes – we want your ideas as well and need your support. Get in touch!