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.
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.
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.
Removing a duty to conclude bargaining
It is no longer a breach of the duty of good faith not to conclude bargaining. To be honest I don’t understand that this changes anything for Unite. We have had a couple of employers who were determined to refuse to conclude bargaining, and we lacked the strength to force them to do so, and we do not have a collective. I am not sure a legal case would have changes that reality. I suspect this clause is connected to the ones below which allow companies to terminate bargaining in certain circumstances.
The Employment Relations Authority can determine that bargaining has concluded
An employer or a union can apply to the employment relations authority for a determination that bargaining has concluded. If the authority accepts the application and agrees then bargaining is terminated for 60 days before bargaining can be initiated again (unless the other side agrees).
This means than an industrial action becomes illegal and must be terminated.
Employers can use the law to scuttle an industrial campaign and workers who lose momentum often find it hard to resolve to begin action again. However, there may be occasions, such as a protracted lockout, where a union could use the law in the same way.
The draft law has been changed to make simply not wanting an agreement insufficient grounds to refuse one. There are some reasonable hurdles before an employer can get the authority to rule in its favour. The authority can also demand further mediation or facilitation to help the parties reach an agreement. Bad faith behaviour invalidates an application.
All strikes will require notice
All unions will have to give notice of strikes. Currently only essential services have. There is not notice period specified however.
Employers able to opt out of multi-employer bargaining.
The new law allows any employer to refuse to be party to multi-employer bargaining. This had been a very weak aspect of the current law anyway and few multi-employer agreements were reached without the employers also wanting it.
Removed protections for some of the most vulnerable workers.
Currently some vulnerable groups of workers like cleaning and food services have their existing wages and conditions protected when being contracted out to another employer. This will no longer be the case if it is small employer with fewer than 20 employees. It won’t be clear for some time if this clause is actually used in many contracting out situations and leads to a race to the bottom. Most of the changes to this section of the Act actually apply to employers who had been refusing to give the new employer information about their employees out of spite when losing a contract.
Partial wage deductions
If workers take partial strike action like a go slow, then the employers can deduct what they estimate to have lost (difficult if not impossible) or a fixed amount of 10%. Notice must be given of any deduction.
Reducing access to information in a restructure
New limits have been put on information that a worker can ask to see when they have been subject to a process that results in their being made redundant. This follows a court decision in 2011 which had expanded an employees rights.
Flexible working arrangement
The one progressive change to the current law is the extension of the right to apply for “flexible” working arrangements to all workers, not just those with dependants. Workers can apply immediately after starting work and there are no limits on the number of applications in a year. Employers response time is reduced from three to one month maximum.
Employers have a “duty to consider” seriously any requests from their employees. So, employers have a legal obligation to consider an employee’s request carefully.
I think unions should be looking for opportunities for workers to use this law to ask for more secure hours at regular times rather than all the “flexibility” being on the employers side.
Workers and unions need to fight
Too many workers and their unions have lost a first hand knowledge or experience of what is possible when workers are on the front foot and have the confidence to stand up to their bosses. One consequence of that is the appalling number of deaths in sectors like forestry or workplaces like Tauranga Port which have suffered the worst of deregulation, casualisation an deunionisation. Workers need to demand a safe and rewarding job, as well as decent wages and working conditions. The main problem unions in this country have have had is not the unfair legal framework but an unwillingness to stand up and fight for our rights. These laws will make our legal position weaker in some respects. But a determined struggle can overcome these barriers and others the employers and their government throw at us. Workers deserve RESPECT!
(Unite National Director Mike Treen has a blog hosted on The Daily Blog 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.)