Joel Cosgrove, Fightback member.
It’s ironic that the Employment Relations (Continuity of Labour) Bill is being put forward by National backbench MP Jami-Lee Ross. The bill which allows employers to bring in temporary staff (scabs) to work when workers are on strike is being put forward by an MP who has no history of actual work, having first been elected to the Manukau City Council at 18 in 2004 and then to the parliamentary seat of Botany at 25 in 2011.
Under the Employment Relations Act passed by the Labour Government in 2000 employers were barred from taking on any staff/volunteers/family to work during strikes in place of the strikers. The same rules were in place in relation to lockouts.
Previously the law had been silent on the issue. Ross’ bill overturns section 97 of the ERA and positively condones the use of staff/volunteers/family to undermine strikes and expressly weaken organised workers.
In the explanatory note Ross explains that restrictions contained in section 97 “prevented employers from maintaining business continuity”, and that “the law needed to provide a balance between employers and employees to be fair.”
Ross’ private members bill comes amidst wider attacks on worker’s rights to organise and take strikes such as the Employment Relations Act Amendment Bill, a government bill which has passed its first reading with support from John Banks and Peter Dunne. There are a number of major issues with the bill:
Employers don’t have to complete collective negotiations. This provision was part of the vague ‘good faith’ provisions that 5th Labour Government’s Employment Relations Act brought into industrial law. Under these new regulations employers don’t need to finish negotiations, they can let them lapse. This was an important part of what allowed the Maritime Union to last in its fight with Ports of Auckland.
Unions would have to give advance notice of strike action. They would require unions to provide information on “nature of the proposed strike, including whether or not it will be continuous”. What this would do is provide advance notice of time and location of any proposed strikes. Combined with Jamie-Lee Ross’ law this would allow employers to hire scabs in advance and take out much of the impact of any workers taking strike action.
Employers would be able to take arbitrary charges from worker’s pay for “partial strikes”. Anything short of striking i.e. go-slows, work-to-rules would be classed as a ‘partial strike’ and the employer could take a 10% flat rate deduction from worker’s pay. They can come up with higher penalty based on their own calculations of the lost time resulting from the ‘partial strike’. Unions would also have to notify employers of any proposed ‘partial strike’.
The bill also seeks to undermine MECAs (multi-employer collective agreements) by making it straight forward to pull out of one. At the moment, the Nurses collective covers almost [or all] of the District Health Boards; the attempt here is to break up the national MECA and pit individual DHBs against each other, forcing down wages at a regional/local level.
The bill would also cut out any requirement to have breaks and take out the 30 day opt out-in clause that currently enrols a new worker into the union collective contract.
Seeing as Unite Union is taking McDonald’s to court for what it estimates is $2.5 million in breaks not taken and yet taken out of worker’s pay, workers aren’t taking the breaks that they are currently entitled to. It is likely that in a lot of worksites breaks will happen if there is time, which in many cases there isn’t, as many workplaces are understaffed and can’t function with a worker off on a break . The reasoning for taking the 30-day clause is given in the bill itself, as it describes that the change “will enable employers to offer individual terms and conditions that are less than those in the collective agreement” . Instead of having time to talk to the union, workers will be locked into an individual contract that will quite possibly include both lower pay and an agreement to take breaks if possible.
Why is this happening? Each of these changes undermines unions’ work in recruiting members and maintaining conditions. Specifically the Nurses Union, which in the last decade has been successful at winning its MECA which is part of achieving better pay and conditions.
While the Employment Relations Act Amendment Bill is the main attack on organised labour, Ross’ Employment Relations (Continuity of Labour) Bill plays the role of the cavalry in a 17th century Napoleonic army. It’s there to feint and distract and then finish off resistance.
Although Ross is a backbench MP with less than three years’ experience, he is ambitious and part of a far-right wider grouping within the National Party, associated with the now notorious campaigner-for-hire Simon Lusk. In a position paper titled “Building A Conservative Fiscal Majority” leaked from an opposing faction of the National party, Lusk lines up a perspective that the National Party is not conservative enough and puts forward the need to move the ‘political centre to the right’.
Lusk outlines his view that:
“This National government has been a disappointment to fiscal conservatives. The wet wing of the National Party controls the senior ranks of the party and cannot be easily replaced without losing an election. After National loses an election there will be a clean out.”
He outlines finding young ‘fiscal conservatives’ and planting them in safe National seats, gaining experience in local body politics, as well as bailing up current MPs with the threat of no lucrative business contracts after they leave parliament. Lusk also outlines developing more ‘fiscal conservatives’ in the public service to aid MPs.
Lusk is associated closely with Justice Minister Judith Collins, the Young Nationals (him and a number of new MPs, including Jamie-Lee Ross).
Ross’ bill has been supported by a motion from the Northern Region conference, set to be tabled at the national conference in August. With the Northern Region being the largest and most powerful regional bloc within the National Party, there is clearly some groundswell support, even if the senior “wet” leadership of the party aren’t enthusiastic about it. Ross has also admitted on The Nation that the bill has been prompted and looked over by Ports of Auckland, an ongoing industrial conflict that Lusk has admitted in his internal document to having influenced and shaped through partisan right-wing blogs.
While PM John Key has indicated that National is only committed to supporting the first reading, Ross has said that he believes that bill is important, as well as being a part of National’s wider plan to “restore a balance between employers and employees”. The question that needs to be probed further is whose wider plan? And is the National Party that John Key is talking about the same National Party as Ross’?
Disquiet in the ranks of the employers?
In 2006 Key as Leader of the opposition National party was quoted as saying “we haven’t argued for some time that we would go all the way back to the Employment Contracts Act, largely because the Employment Relations Act is 85 per cent a rewrite of the Employment Contracts Act anyway”.
How serious Key was in this statement is debatable. What is not, is sections within the employer class who are uncomfortable about legislative change.
“In spite of several high profile cases we have had 10 to 15 years of harmonious workplace relations and don’t want to jeopardise that. We need to look carefully at the implications of industrial action on essential industries such as the ports and hospitals, as well as on small businesses”, says Kim Campbell of the Employers and Manufacturers Association. Campbell, chief executive of the EMA, has acknowledged that while the bill might well appear as a good idea to employers, it might not take into account unintended consequences. “While its principles are worth exploring it could prove very divisive”.
To pass legislation the Key government has relied on ACT MP John Banks, United Future MP Peter Dunne and the Maori Party to pass legislation. Both the Maori Party and Dunne have ruled out voting for the legislation, although NZ First have been silent to date on whether they would vote for the legislation or not.
In an editorial on Ross’ bill, John Jones from the Gisborne Herald states that unions “have seen their power steadily diminish over the past three decades”, and their response has demonstrated that there is no clear plan to change this.
“National have rejected this policy to date and we encourage them not to change their mind”, says Peter Conway Secretary of the Council of Trade Unions (CTU).
The Public Service Association (PSA) National Secretary and CTU Vice President Richard Wagstaff described the legislation as being a “distasteful piece of legislation” adding that “it will encourage employer to take a more aggressive approach towards unions and collective bargaining”. Conway added that “if the bill becomes law it will reduce the impact of a strike and create huge conflict between strikers and replacement labour. Workers are already campaigning against the Employment Relations Amendment Bill which will reduce wages and this bill is just another attack”.
Their campaign to date seems to be focused around making online submissions to the select committee that the bill has been sent to. Quite possibly there will be a campaign to send in postcards to the Minister of Labour Simon Bridges.
The response for a while now has been to send our sternly worded press releases, start petitions, make submissions or send in glossy postcards. If the situation is incredibly dire then there might well be a rally where workers are bussed to parliament on paid stop-work time.
That National Party are not afraid of any response from the unions; they know the response and they are not worried at all. It’s like a cat playing with a bird with no wings.
The perspective of the union organisers and hierarchy is outlined well by this statement by Engineering, Printing and Manufacturing Union (EPMU) Waikato organiser Myles Leeson: “There have been no major hassles on any of my sites for quite some time. People need to know that industrial action is always a last straw, a last resort that we only want to make use of if we absolutely have to. It’s not a path we want to go down.”
Labour MP Darien Fenton (previously the head of the Service and Food Workers Union) when interviewed on The Nation in response to an interview with Jamie-Lee Ross, argued that there were 12 officially recognised strikes in 2011 and that section 97 (the section that Ross is trying to get rid of in his private members bill) already allows companies to use already employed workers to scab on striking workers. Their argument is that what is being proposed can already be done; nothing to see here, move on.
We need fighting unions
Total union membership has decreased from 680,000 (43.5% of total workforce) in December 1985 to 305,000 (17.7%) in December 1998 and 380,000 in 2011 (17.4%). When EPMU National Secretary Bill Newsom says “It’s already very difficult, in an era of reasonably high unemployment and very low economic activity, for workers to test their employers for fairer wage outcomes”, it’s[ true. The problem, however, is that the union movement has stagnated since hitting rock bottom in 1998. It’s been a long time at the bottom. We need new ideas, new strategies in order to win. There are examples that can be learnt from and studied; UNITE in fast food, FIRST at the Warehouse and the Nurses union over the last decade. Yet the attempt by the CTU to start Together Union is described on their website as “an initiative of the Council of Trade Unions Te Kauae Kaimahi(CTU) to provide New Zealanders who don’t belong to a trade union with the chance to be part of an organisation that supports worker rights. It also provides individual workers with much-needed support in their day-to-day jobs”. The union has anecdotally estimated to have signed on 70 members. The problem is that workers face bullying, denial of legal rights and pay; they need someone who they can rely on, who they can develop a relationship with and trust. The only thing worse than being picked on by an employer, is being targeted after a union organiser has come and gone leaving workers to fend for themselves. In un-unionised workplaces the employer can take on the self-appointed status of a demi-god, unquestioned and unchallenged. The most important thing in this situation is to take worker’s backs and stop them being persecuted.
This is all part of what is being talked about with regards to the idea of a ‘fighting union’.