Wendy’s workers take action over stolen lieu days

US McDonald’s workers Genoby Jimes (2nd from left) and Anggie Godoy (3rd from left) join Wendy’s workers outside the Royal Oak store in Auckland February 10. (Photo by Jos Wheeler)

Wendy’s workers from five stores in Auckland and Papakura walked off the job yesterday over the company’s theft of their right to “alternative days” off or “lieu days” for working on a public holiday.

The workers were joined outside the Royal Oak store by two McDonald’s workers from the USA who are part of the campaign in Los Angeles for “$15 and hour and a Union“. Anggie Godoy, 19, and Genoby Jimes, 27, are in New Zealand to support Unite Union’s campaign against zero hour contracts in the fast food industry and will be attending a national fast food workers gathering in Auckland on February 14. Meetings are also planned in Wellington on February 11 and 12 with the Council of Trade Unions, members of parliament and union activists

Letter to Minister on abuse of breaks law

Michael Woodhouse
Minister of Labour
Parliament Buildings
Wellington
6160

20 November 2014

Dear Mr Woodhouse,

Yesterday I received a concerning email from one of our union members.

It stated that:

“This morning in the briefing our manager declared that its now her right to decide when we take our breaks, and that since it was a busy day no one could have one until 3pm. Everyone started at 8am, and were due to finish at 3:30pm or 4pm.”

This is a direct consequence of the recently passed rest breaks legislation.

You have stated through the media that these law changes were aimed at providing flexibility, not taking away rights. You said that you saw it applying in situations such as a sole operator at a petrol-station, sole-charge air traffic controllers at small airports, or nurses on a night shift.

You also said that employees and employers would be able to negotiate their rest breaks.

“I think we patronise employees by pretending they cannot negotiate with their employer for a fair outcome.”

This law has not even come into effect yet and already this legislation has been used as an excuse to take advantage of workers at a hotel in Auckland. These workers are not sole-charge. This is not a small employer. This is a well-known nationwide brand. These workers do an incredibly physical job all day involving heaving lifting, bending, pushing and pulling. Many of these workers are on work visas, many do not speak English as a first language.

These workers were not given the chance to negotiate their breaks. They were simply told during a morning staff briefing that their breaks were changing from now on and they were to work almost an entire shift without a rest break. Even if they were able to negotiate their breaks how could they do this successfully given that they are already in a vulnerable position, being that many are migrant workers?

This is the direct consequence of the law change you supported. This is the first example. We expect there will be many, many more.

I have some questions for you Minister.

a) Is this the actual intended effect for this legislation, do you think this is fair and reasonable?

b) Do you think this is reasonable in terms of an employers’ responsibility regarding the health and safety of these workers?

c) How do you suggest workers go about negotiating their tea breaks with their employer, especially non-union workers?

d) Do you have any further advice for these workers?

Mr Woodhouse, I am eager to discuss the effects of this law change with you further. Would you be willing to meet with us and a delegation of our union members?

I look forward to hearing from you.

Shanna Reeder
Hotels Organiser
Unite Union
029 44 55 703
shanna@unite.org.nz

Christchurch chef awarded close to $175,000 in compensation

(Reprinted from the NZ Herald)

By Sophie Ryan @SophieRyan

A chef employed at a Christchurch Vietnamese restaurant has been awarded $174,356.65 after working for five years without being paid, in what the Employment Relations Authority calls one of an increasing number of cases of exploitation of migrant workers.

His brother has also been awarded $14,386.73 for not being paid either.Bao Ho Van Nguyen and Vu Ho Van Nguyen both worked in Hue Kim Thi Ta’s restaurant Little Saigon.

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.

Employers liquidating companies to avoid paying minimum entitlements

By Tali Williams, First Union Organiser

(Reprinted from The Daily Blog)

Across the union movement we have seen a number of documented cases now where companies are liquidating their business in order to avoid their legal obligations, in terms of paying the minimum entitlements to their workers.

The most recent example is the case of Momo Tea. Momo Tea workers raised a case related to unpaid wages and annual leave among other breaches to their minimum workers rights. The workers say they were bought into a meeting and told by their employer that because they had raised these breaches the company would be liquidated and they all had to clean up the restaurant and leave as they had lost their jobs. The following day, despite the liquidation, the restaurant carried on trading. The company had simply transferred workers from their other restaurants to cover the shifts.

Hotel ordered to pay $80,000 in outstanding wages

An Auckland hotel has been ordered by the Employment Relations Authority to pay nearly $80,000 in outstanding wages to two employees.

Filipino couple Abraham and Nancy Agustin were employed at Auckland Harbour Oaks, and alleged the hotel had underpaid them and withheld part of their salaries.

The employers maintained their payment regime is correct but failed to provide any wage and time records to the authority, as required by law.

Cafe chef awarded $50,000 for unfair dismissal

A former chef at an Auckland cafe has been awarded more than $50,000 in unpaid wages and compensation for unjustified dismissal.

The Employment Relations Authority was told by Lin Zhang that she had been employed by Tan Pacific at its cafe business in Auckland after travelling to New Zealand on a student visa.

Tan Pacific failed to show up for any hearings or respond to allegations throughout the authority’s investigation.

Ms Zhang told the ERA as evidence that her student visa was set to expire when she saw a job for a full time chef at BB’s Cafe advertised.

Ms Zhang said during the course of the interview she told her employer William Tan her visa was about to expire.

She said Mr Tan told her he would offer her the job and help with her visa application if she paid him $23,000 as a bond, to ensure she would remain working for him for two years.

Ministry report: National Government changes not working

Media release

Ministry report: National Government changes not working

The Ministry of Business, Innovation and Employment (MBIE) has released its report into the changes to the Holidays Act and the Employment Relations Act the National Government made in 2011.

“This report clearly shows that this set of changes by the National Government to employment law are failing New Zealanders. This report shows that they have failed to increase employment and failed to help disadvantaged workers.”CTU President Helen Kelly said.

CTU President Helen Kelly

“The infamous 90 day trial period is a flop. There is no evidence that 90 day trial periods have led to the creation of a single job. In fact it shows that tens of thousands of workers are being dismissed under 90 day trials each year. There’s not a shred of evidence that trial periods have created any additional employment – which was the primary justification the government provided for wanting to implement this law change. It is clear that employers like trial periods (one surveyed called it a safety blanket) but also that they are a cause of huge distress to workers who have been unfairly dismissed with no recourse to justice. There is no evidence that it has helped disadvantaged workers find jobs. Instead they are more vulnerable to being laid off. This policy is a huge and ongoing cause of human misery with no real gains for the economy as a whole. It should be scrapped.” Kelly said.

“Cashing up of annual leave is being used primarily by workers on low incomes to supplement their inadequate take home pay in lieu of a pay increase (within the context that 46% didn’t get a pay rise last year). The purpose of annual leave is to provide workers with an opportunity to spend time with their families, and for rest and recreation. The opportunity to have a break has been proven to have a positive impact on productivity.“ Kelly said.

“The rights of workers is clearly an election issue. Workers are entitled to employment law which supports and ensures fairness at work.” Kelly said.

ENDS

For further comment, please contact:

Helen Kelly, President, CTU, 021 776 741

For reporters:

Key points

90 Day trial periods

• Last year 27% of employers dismissed at least one person on a trial period. This is up from 19% the year before. Since at least 69,000 employers used trial periods this equates to tens of thousands of workers dismissed.

• It is notable that MBIE hasn’t managed to find any workers who have been dismissed on trial periods to talk to (perhaps because they only spoke to 19 workers including only 2 in retail, 1 in construction).

• Trial periods are generally imposed as a standard clause without negotiation in employment agreements. Most workers surveyed did not know that trial periods were negotiable (p 43).

• International evidence suggests that initiatives like trial periods can lead to more ‘churn’ by increasing both hiring and firing. Trial periods are no substitute for good recruitment and performance management processes. By suggesting to employers that they can skimp on these can lead to bad hiring and HR practices.

• Employee survey results indicated a broad range of people were starting on trial periods, rather than groups that could be seen to be at a labour market disadvantage. Employers are using them as standard practice for all employees, and skilled technicians and tradespeople are more likely to be affected. However recent migrants were one-and-a-half-times as likely to start on a trial period (51 % versus 34%). Notable in light of acknowledged problems of migrant exploitation.

• Employers, employees, unions and employment experts have all indicated that 90 day trials have encouraged some employers to adopt short term hire and fire patterns (p 40).

• Note that there appear to be some missing sections such as whether changes to the 90 day trial period have increased the balance of fairness (p 44).

Cashing up of annual leave

· These changes have had low uptake (8% of workers in the last year p 29) and those who were requesting cashing up were low paid workers.

· It appears that, in breach of the law, some employers may be forcing their workers to cash up their annual leave or allowing them to cash up more than a week (34% of workers in the UMR survey who had cashed up leave had cashed up more than a week of leave in the past year p 30).

· One Auckland security firm said they believed their staff didn’t want or expect annual holidays and would rather have the cash (p 30).

Union access

· Most employers with a union presence in their workplace noted that they already had a good constructive working relationship with unions (p 34).

· No unions thought that the changes had a positive effect and 17% thought that the changes had negatively impacted on workplace relations.

· Only one of the 19 employees surveyed belonged to a union (p 34).

Huia Welton | Communications & Campaigns Advisor | New Zealand Council of Trade Unions – Te Kauae Kaimahi

ph: +64 4 802 3817 | cell: +64 021 524 502 |

www.facebook.com/fairness.at.work | www.union.org.nz | Follow us on twitter: @fairnessNZ

Unions – we’re about Fairness

 

A history of Unite Union (Part 1 of 4)

(The following history was prepared as part of the contribution by Unite Union to the international fast food workers meeting in New York in early May. Unions officials and workers were fascinated by the story we were able to tell which in many ways was a prequel to the international campaign today.)

All four parts of this series can be downloaded as a single PDF file from here

Part Two

Part Three

Part Four

Restaurant Brands delegates join Maritime Union picket, Auckland Wharf

 

By Mike Treen, Unite National Director

April 29, 2014

In the late 1980s and early 1990s, workers in New Zealand suffered a massive setback in their levels of union and social organisation and their living standards. A neo-liberal, Labour Government elected in 1984 began the assault and it was continued and deepened by a National Party government elected in 1990.

The “free trade”policies adopted by both Labour and the National Party led to massive factory closures. The entire car industry was eliminated and textile industries were closed. Other industries with traditionally strong union organisation such as the meat industry were restructured and thousands lost their jobs. Official unemployment reached 11.2% in the early 1990s. It was higher in real terms. Official unemployment for Maoris (who make up 14% of the population) was 30%, again higher in real terms. Working class communities were devastated.

The National Party government presided over a deep and long recession from 1990-1995 that was in part induced by its savage cuts to welfare spending and benefits. They also introduced a vicious anti-union law. When the Employment Contracts Act was made law on May Day 1990, every single worker covered by a collective agreement was put onto an individual employment agreement identical to the terms of their previous collective. In order for the union to continue to negotiate on your behalf, you had to sign an individual authorisation. It was very difficult for some unions to manage that. Many were eliminated overnight. Voluntary unionism was introduced and closed shops were outlawed. All of the legal wage protections which stipulated breaks, overtime rates, Sunday rates and so on, went. Minimum legal conditions were now very limited – three weeks holiday and five days sick leave was about the lot. Everything else had to be negotiated again. It was a stunning assault on working people. Union bargaining, where it continued, was mostly concessionary bargaining for the next decade.

Fast food companies cheat workers out of lieu days

By Mike Treen

National Director, Unite Union

Workers have been cheated out of their lieu day entitlements for working on a public holiday at several fast food companies.

By law, workers are meant to get one full day as a paid “alternative holiday” (also called a lieu day) if they work any period of time on a public holiday – if that day is usually a working day for them. So, if the public holiday is on a Monday and I usually work Mondays, I should get paid time and a half for all hours worked and get another full day’s paid leave.