By Helen Kelly, Council of Trade Unions President
(Reprinted from The Standard)
The proposed changes to employment law make massive changes to the right to strike. Those opposed to the Bill by Jamie Lee-Ross to allow replacement labour during strikes, need to be consistent in this view and should also be very worried about the main Employment Relations Amendment Bill now in Select Committee.
The Bill changes the right to strike in three significant ways:
1. Notice for strikes.
Currently only those in essential industries must give notice to strike. The new law not only requires notice for all strikes but it also requires that these notices say when the strike will begin and end and there is a requirement for each employee to give notice when a strike will end early. This will prolong strikes and see workers lose wages when they are seeking to return to work. It is intended to create technical grounds for strikes to be ruled illegal.
2. A strike tax
The Bill provides for partial pay deductions for action that falls short of a strike. Firefighters for example, reluctant to take strike action, may take action such as not filling in fire reports, teachers may refuse extra curricula activities or workers may do other creative actions (librarians at universities once refused to process new books rather than shut the library during exam times). The Bill proposes that the employer can unilaterally decide the value of this work and deduct the amount of wages they consider to match this value. Workers can challenge the amount deducted in the Court, but this will take time and the pressure of wage deductions will be used to pressure workers to drop the action. Workers will still be completing their full hours but not getting paid the full amount. The Bill even excludes compliance with the minimum wage for this deduction (it will not matter if the deduction takes the worker below the minimum wage). For state workers that take this limited type of action – the State will benefit – full time work for part time pay – a strike tax.
3. Restrictions on the right to strike
The last change is the most serious one. Currently it is lawful to strike in pursuit of a collective agreement. Sixty days before the expiry of a collective agreement, the union can initiate bargaining and begin negotiations for a renewal. When this happens the expiring collective remains in force for a full year after expiry. This means workers retain coverage and new workers can gain coverage while renewal bargaining takes place.
There is a duty of good faith on the parties to the bargaining to conclude a collective agreement unless their are genuine reasons on reasonable grounds not to. It is not a genuine reason to simply object on ideological grounds to a collective.
40 days following initiation the parties can strike or lock out in order to put pressure on the other party to change their position in the bargaining – an essential element sometimes of getting a settlement. Without it, workers have no ability to shift an intransigent employer to get a reasonable offer – it is a recognised international right, and you have heard the EMA, Peter Dunne and others defend this right. Even Key says he is not too keen.
The Amendment Bill removes the duty to conclude a collective, and provides for a party to apply to the Court to deem bargaining concluded without a settlement. If this is granted then the expiring collective agreement expires immediately leaving no collective in place and putting all workers onto individual employment agreements (remember the Employment Contracts Act?). If bargaining is deemed concluded by the Court without settlement, then both parties are frozen in relation to restarting bargaining for 60 days including from taking strike action in pursuit of a collective agreement. So there employees will sit – no collective, no bargaining and no strike rights. During this time the employer can offer individual agreements to workers to break up the bargaining unit.
All of this is technical but the reality is that this Bill is aimed to drive wages down. It is dramatic and will be used to contract out workers like the wharfies, to remove collective coverage from vulnerable workers like cleaners and hospital service and clerical workers, to undermine school support staff bargaining and to force dramatic cuts in wages and conditions on many unionised groups of workers who will be left choosing between bargaining at all and “take it or leave it” offers. A reduction of wages in collective agreements impacts on all those other workers whose wages are based on the collective and influences wages across industries as well.
The Minister of Labour spoke to the ILO conference today – he reiterated his point that this evens up the power of employers against employees, he waxed on about supporting the ILO and he ignored the fact the changes break the agreements between the New Zealand Government and the ILO. He is creating a situation where collective bargaining will not be promoted as per the requirements of this house. In doing so the Government puts New Zealand’s international reputation at risk. It has referenced these conventions in many of its trade agreements but clearly it does not honour these either!
Don’t get distracted by the Jamie Lee Ross Bill, it is serious too but if you cant strike at all – the issue of replacement labour becomes the sideshow in this larger debate about the future of work in New Zealand.