Unite Union National Director Mike Treen presented the union’s submission to the parliamentary select committee discussing the proposed law changes in the industrial relations area.
Unite decided to focus its submission on a government proposal to remove the legal entitlements for breaks. Currently the law requires a 30-minute meal break after 4 hours work, a 10-minute rest break after working a minimum of two hours and a second 10-minute break after working six hours. The current law also allows the workers to decide to take their breaks in the middle of the relevant work periods if they aren’t able to agree to an alternative arrangement with their boss.
The new law simply says that breaks should be “reasonable” and compensation for missed breaks can be agreed.
The following article is based on notes used by Mike Treen to speak to the Unite Union submission to the select committee hearing on September 11.
Getting breaks has been one of the biggest problems in the fast food industry.
The requirement for breaks as specified in either the employment contract or law has been routinely ignored.
Companies in this sector tightly control the labour hours allocated to stores.
Usually a bare minimum staff are available to managers to run a store. In that situation any absences or sudden rushes in demand makes it difficult to operate a store without all hands on deck all the time.
Workers are also extremely reluctant to let their mates down when a store is busy and won’t take their break.
A large number of migrant workers work in this industry and are often reluctant to assert their rights because they are hoping for a promotion to manager to pursue work or residence visa opportunities.
A company investigation of a KFC up north revealed the majority Indian workers in the store actually didn’t believe they had the right to a break.
There is usually no compensation clauses in employment agreements for lost breaks.
This industry, like the hotels and security where we also represent many workers, have what are being called “Zero-hour” contracts in the UK. This means there are no minimum hours stipulated in the agreement.
This gives enormous power to often young and inexperienced managers to use rostering to reward or punish a worker depending on how much you are considered a “team player”.
A worker who insists on their right to a break could find their rostered hours cut the following week. Reducing a workers hours is also used as a disciplinary tool for lateness etc without going through a proper process.
Breaks are of course important for health and safety. Company head offices always assured us that they told their managers that breaks should be given.
However we are dealing with the reality of an industry where there is a tremendous inequality of power between the young often migrant workers and the company generally or their store manager.
To be honest as a union we found it hard to even enforce the contract.
Prior to the law change there were no meal breaks unless you worked a 5 hour shift and no second rest break unless the crew worked a full 8-hour shift.
Rosters would be drawn up to avoid break entitlements but workers would end up working longer than their rostered shift without a break.
Workers would be rostered 5 hours with no meal break in the shift roster but end up working 6 or 7 because the store was busy. Similarly they would be rostered 7.5 hours with no second rest break planned for but end up working 8 or more hours without a second break.
Enforcing the contractual right to a break became easier when the law was changed. It was easier for workers to say “I want a break – it’s the law”. Making the meal break entitlement kick in after 4 hours and the second break after six hours was also helpful.
The collective agreements we have negotiated in the last few years have been able to largely include these legal improvements. But enforcement remains a challenge. We still have meal breaks being rostered after one hour into a shift. We still have people being rostered 4 or 6 hours but working beyond that time without a break or any compensation for missing it.
Only one company has agreed to compensation for missing a rest break (but not for missing the meal break) – McDonald’s. We are seeking compensation for missed meal breaks as well. From the wage and time records we have it seems workers have been working more than four hours without a meal break on average a 100 times a month in every store. Sometimes they will only work a few minutes beyond the four hours but often they worked 5 or 6 hours without a meal break. We will be arguing that issue in court but McDonald’s is not unusual in that regard. That is the situation for for tens of thousands of workers in New Zealand.
Having the legal obligation to provide breaks has made our job easier. We were able to improve the clauses in the collective agreements but also just the knowledge it was law made workers a bit more willing to speak up and be heard.
Without the law an industry with tens of thousands of workers would have continued to be serial offender on the breaks issue. Workers without the protection of a collective agreement will be in an even more impossible situation.
The desire for flexibility is one thing but when that flexibility means you routinely miss out on a basic right which is what did exist in this industry its a giant step backwards.
Mike Treen presenting submission to select committee
Unite delegates from McDonald’s Taylor McLoon and Sean Bailey join Mike Treen to respond to questions from the select committee members.