GUEST BLOG: Grant Brookes – NZNO Constitutional Review – Speak up now for rules to empower union members

The revolt over broken promises to back-date Pay Equity for DHB nurses to 31 December 2019 is showing, once again, that union members are powerful when we organise and speak up.

For many DHB nurses, the broken back pay promises briefly brought back bad memories of 2018, when our MECA negotiators told us to accept substandard offers, refused to let us vote unless we sat through hour-long meetings, cancelled a strike that we had voted for and then, when we did strike, they let DHBs make a mockery of the Life Preserving Services agreements.

On 11 April, three days after releasing the proposed Pay Equity settlement, NZNO backtracked and announced a full legal review of the settlement agreement and the process leading up to it. The review validated what members had been saying. This was fantastic. It really was!

But why does it have to be so hard to get NZNO to act on our behalf, when We Are The Union?

This kind of thing mustn’t happen again. We need to rewrite the rules, so that NZNO is driven by its members. And between now until 30 April, with the Constitutional Review, we have a golden opportunity to do just that.

What is the Constitution, and why does it matter?

Weighing in at a hefty 49 pages and written in dense legalese, the NZNO Constitution is a document that most people have never read. Who can blame them?

And yet the Constitution is a matter of importance for every fee-paying member of NZNO. This is because it:

• Defines the purpose and objectives of NZNO (what it’s for, and what it will do)
• Sets out the rights of union members (along with our responsibilities)
• Determines who has the power to do what, inside NZNO

Since NZNO is an incorporated society and a union, its Constitution is a legally binding document. Any member is actually able to go to court or to the Employment Relations Authority if they believe the Constitution has been breached. And now this document is up for review.

All NZNO members were emailed a link on 1 April to a Member Survey about the Constitution, open until 30 April. The survey is 40 pages long! I know, because I printed it to PDF using A4 paper size. Who’s got time for a 40-page survey?

The good news, as explained at on page one, is that, “You do not need to answer all questions in order to provide valuable feedback. There may be specific issues of concern to you that you would like to focus on.”

So if you read no further in this article, please at least click on that link in your email and go to Section 4 of the survey, to speak up for the “Objects of the NZNO” that you want to see prioritised. 

Along with the Board election later this year (more on that below), the survey is our biggest chance to exercise our rights as as members and speak up for a membership-driven union. If you’d like to see how I answered all the survey questions, click here. If you want to understand my perspective on problems in the Constitution and the rule changes needed to empower members, please read on. I am proposing ideas which you might like to put in your survey responses, in the following areas:

• Openness and honesty (survey Section 7)
• Genuine democracy (Section 6)
• Kaitiakitanga & servant leadership (Section 5)
• Engagement and belonging (survey Sections 2, 3 and 7)

Openness and honesty

When Board members Anne Daniels, Katrina Hopkinson and Sela Ikavuka resigned in April 2020, just eight months after being elected, many NZNO members were shocked to learn that they were bound by a “gagging order”. “Right from the start”, the trio wrote, “we were required to sign a confidentiality agreement before our first meeting.”

That’s right – the elected leaders NZNO are barred, under threat of legal action, from sharing information with the membership who vote them into office. It hasn’t always been this way. Up until a decade ago, all NZNO Board members used to produce regular reports for the members they represented.

But NZNO today has a problem with openness and honesty, and the problem starts at the top. Last year, the Board refused to release an external review of its performance. Hundreds of members signed a petition calling for its release. “As a transparent, member-led organisation”, said petition organiser and NZNO delegate Al Dietschin, “we believe every member who wants to see this review, which was paid for by NZNO members’ fees, should be able to access it on the website.” The Board dismissed their call.

Agendas and minutes of Board meetings are supposed to be made available to the membership and staff, after a binding motion was passed in 2016 by NZNO delegates unhappy at the Board’s lack of accountability and transparency. But last year, the Board simply ignored that vote and went back to operating in secrecy. Their secrecy has included a serious lack of detail about how all our member fees are spent.

Perhaps the most significant report for NZNO in recent years, the Independent Review of the 2017/18 DHB MECA campaign which led to major changes in NZNO’s approach to bargaining, was also initially withheld. NZNO chief executive Memo Musa said the report would “remain confidential and not be shared with others without the express permission of the chief executive and industrial services manager.” It was only published, in a redacted form, thanks to the organising efforts of hundreds of members who forced its release.

This culture of secrecy filters down from the top and affects other parts of NZNO, in ways big and small. The secretaries and chairs of NZNO Colleges and Sections, for instance, aren’t even allowed to know the names of the people on their own membership list. Delegates in the same workplace are prevented from talking with each other (and they members they represent) because they can’t get names or contact details.

The withholding of information is a way of actively disempowering NZNO members. In place of open and honest communication, we have even been fed self-serving misinformation. In 2019, a very strange email to all member groups from the Board said, “The Board wishes to clearly state that it is united. Contrary to some suggestions that have been made, the Board is neither dysfunctional nor divided.” Meanwhile the external review, which later leaked despite the Board’s attempts to suppress it, said that during this time the Board was in “a governance crisis”, crippled by internal conflicts and unethical conduct, to the point where it couldn’t say what value (if any) it was adding to the organisation.

“I want to see improved transparency”, said NZNO Vice President Nano Tunnicliff in her election profile statement last year. The Constitutional Review provides an opportunity to achieve this. The Constitution should set out clearly the rights of NZNO members to information about our own union. NZNO’s culture of secrecy is out of step with other similar organisations, current understanding about good governance and recent law changes.

This month, the Incorporated Societies Act 2022 came into force. This Act updates the legislation governing entities like NZNO, and expresses the expectations of New Zealanders around open and transparent governance. Section 80 of the Act sets out for the first time a legal right to information held by incorporated societies (including unions) for members of that society. If the officers of a union refuse an information request, members can now get a court order for its release. There are only a few limited grounds for refusing a request to release information to a member. One of them is if it says that information can be withheld in an organisation’s constitution.

After learning from the Independent Review of the 2017/18 DHB MECA campaign, last year’s MECA bargaining was refreshingly different. DHB Sector members were given frequent updates, containing all the information they needed to make informed decisions for themselves. Information previously marked “confidential”, such as the detailed results of member votes, was now made available. NZNO negotiators were accessible for the first time on social media, and answered questions.

It’s time to make this the norm, for all of NZNO. We can do that by speaking up for rules to empower NZNO members in section 7 of the survey. I suggest that the Constitution should explicitly state, under “Rights and Responsibilities of Membership”, that union members have a right to information held by NZNO, subject only to the grounds for refusing information requests provided in the Incorporated Societies Act 2022.

Genuine democracy

NZNO today is stuck, part way through a transformation into a genuinely democratic organisation. The Constitution currently says that all members have the right to vote on some matters, but decision-making on other matters remains secretive and undemocratic. Section 6 of the Member Survey is our chance to speak up for changes to strengthen our union democracy and member voice.

Enabling all members to vote is a relatively recent development for NZNO. It was not until 2018 that the system of “One Member, One Vote” was introduced, finally empowering every member to vote online for NZNO policy and rule changes. That same year, online voting was introduced in MECA bargaining. When online voting was first raised, it met with strong opposition from NZNO leaders. Now we have to wonder what all the fuss was about. It seems strange to think that prior to 2018, the only members allowed to vote on these things were those able to attend long meetings, in person.

But for other decisions which affect NZNO members, voting by people able to attend long meetings is still in place. This is the case for Annual General Meetings and for two Special General Meetings of the union held in 2019. Whether I like it or not, this part Constitutional Review is bound up with my own story as NZNO President, as these SGMs were both about me. But as someone who has campaigned long and hard against undemocratic features of the Constitution for over a decade – in print, on line and at meetings, even drafting a remit for a constitutional review (later superseded) in December 2019 – my ideas now are not simply a reaction to my own recent experiences.

The problems with the current system of voting at meetings “on a representational basis” are that:

• Under Section 30 of the Constitution, just 33 people (out of the 55,000 members in NZNO) are allowed to vote. They are the representatives of the 11 Regional Councils, 20 Colleges and Sections, the National Student Unit and Te Rūnanga
• These 33 representatives (generally the Chairpersons) get the number of votes equal to the number of members in the group they’re representing. This means you can have one rep casting the vote for up to 15,000 members
• The largest five membership groups comprise over half of the membership, meaning just five representatives could make a “majority” decision for all of NZNO
• Yet, there is no requirement for the “representatives” to consult the membership they’re voting on behalf of – and many have been quite open about the fact they don’t consult – or to vote in accordance with the wishes of their members, if these are known
• There’s no way for members to know how their representatives even voted, because it’s “secret”
• And the kicker? The eleven Regional Council Chairs, who wield two thirds of the total vote at AGMs and SGMs, aren’t even elected by the membership of their Region

Members can see that an unelected handful casting thousands of secret votes is an open invitation to corruption, and this has contributed to a breakdown of trust in NZNO. It’s also a pretty rotten system that so few can make a decision that’s paraded around as a democratic decision of the membership.

If this wasn’t reason enough, the system of voting “on a representational basis” is now broken completely in a time when meetings are being held virtually by Zoom. The NZNO Annual Report 2020/21 and the audited financial statements, for instance, were accepted through an AGM ballot where only a minority of the eligible reps voted on behalf of their members at all.

Given this, I have two strong suggestions for responses in Section 6 of the survey. Firstly, people should clearly state that we must keep the “One Member, One Vote” system. Because believe it or not, there is a push at the top of NZNO to remove this from the Constitution and go back to making decisions about remits on a “representational basis” at meetings. Those driving the move backwards say that democracy is inherently “racist”, against Māori.

Their argument rests on the assumption that all Māori think and vote the same way, and that Pākehā and other tauiwi always vote against them. Because Māori are a minority, the argument goes, they will always be outvoted and always lose out.

This argument, however, stereotypes Māori and is not supported by the evidence. Voting for NZNO Board members, for instance, is an area where the “One Member, One Vote” system has applied since 2011. At the last election in 2019, democracy produced wins for Māori candidates. The following year, in an all-member ballot using the “One Member, One Vote” system, a remit giving Māori NZNO members the power to veto anything in future which affects Te Rūnanga or is inconsistent with their rules (Ngā Ture) attracted overwhelming democratic support. This remit to empower Māori NZNO members, which I wrote before stepping down as NZNO President, passed with 73 percent of the vote.

It can sometimes happen that democratic, majority rule systems fail to adequately respect minority rights. This is why protections underpinned by Te Tiriti o Waitangi – like giving Māori members veto power over things which affect them – are needed.

But democracy is not inherently racist. Dressing up opposition to democracy in the garb of anti-racism is just disingenuous. As the world looks on in horror at attempts to suppress democracy in Ukraine, we need to be very clear that democracy is the best system of governance we have. Since the introduction of online democratic voting in 2018, it has strengthened our union, massively increased participation, delivered better outcomes and improved member satisfaction. It is certainly superior to the secretive, unaccountable decision-making that goes on at meetings.

 

So in addition to stating clearly in Section 6 of the survey that we must keep the current “One Member, One Vote” system, members should also tick “yes” to support “One Member, One Vote” on AGM matters and also tick the box to say that “Voting at a special general meeting should be… By one member, one vote to be carried out electronically or by post.”

Kaitiakitanga & servant leadership

The dissatisfaction over the Board’s lack of transparency and the damning assessment of its ethics in the recent external review has fuelled a widespread suspicion that in recent years, the NZNO Board has been driven by personal agendas – not by the needs of the membership. In my experience, this suspicion is well founded. Spending a quarter of a million dollars of members’ money on the Board’s own legal battles in 2018-19 must rank as a scandal, all on its own. We need a board who hold fast instead to values like kaitiakitanga, acting as custodians serving on behalf the membership for a time, rather than as owners of the organisation who would use its resources for their own ends.

The culture and values of a Board, whether that’s a culture of service or an inflated sense of superiority and entitlement, is shaped by many factors. But in the case of the NZNO Board, they include aspects of the Constitution.

Section 5 of the Member Survey focuses on the Board. The second question in this section begins, “The current term for board members, with the exception of the Kaiwhakahaere and the Tumu whakarae is three years, with a right of re-election for a further consecutive three years in any one position. A director may serve up to two terms in any one position. The maximum consecutive terms on the board in any combination of positions is four. Following two terms in any one position or four terms in a combination of positions, a director may be eligible to stand for office again after a break of two years.”

So as the survey explains, the Constitution currently limits how long the President, Vice-President and the non-officer directors can remain in their positions.

What the survey does not mention is the very next clause in the Constitution: “… The term of the Kaiwhakahaere and Tumu whakarae Directors shall be three years, with a right of re-election for a further consecutive three years, and may be eligible to stand for office again every three years thereafter.” In other words, there are no limits on how long the Kaiwhakahaere and Tumu Whakarae can hold hold office. Nor does the survey mention the six figure salaries paid to the elected officers.

And the survey does not mention how the Kaiwhakahaere and Tumu Whakarae are elected, either. As stated in Schedule Three of the Constitution, these positions are elected at the Hui ā-Tau – which is run each year under the rules of Te Rūnanga (Ngā Ture). In accordance with the principle of tino rangatiratanga, Ngā Ture are determined by solely by Māori members of NZNO. They are not up for wider input as part of the Constitutional Review. However, Ngā Ture are referenced in the NZNO Constitution and need to be read alongside it, as these rules of Te Rūnanga provide relevant additional context.

Ngā Ture state that to be eligible to stand in elections for the position of Kaiwhakahaere or Tumu Whakarae, candidates must have held a position at Te Poari within two years of applying. In other words, while a call for nominations for these positions goes out every three years to all 4,000 members of Te Rūnanga, the only people eligible to stand (apart from the two incumbents) are two nursing students from Te Rūnanga Tauira, or (realistically) the eleven regional representatives who make up the rest of Te Poari.

This tiny pool of potential candidates (numbering just eleven, or perhaps a couple more given turnover in these positions in a two year period) are all people who have served loyally under the incumbent office-holders – who also happen to control the budget for travel and accommodation for the delegates to Hui ā-Tau, and control who may speak at Hui-ā-Tau, where the couple of hundred voters who’ve been funded to attend elect the Kaiwhakahaere and Tumu Whakarae.

These rules go some way to explaining why, in the last 13 years, the position of Kaiwhakahaere has never been the subject of a contested democratic election – and probably won’t be in the future, either.

The term limits which specified how long the Kaiwhakahaere and Tumu Whakarae can hold hold office were removed from the Constitution in 2017. The rationale for this was something I went along with at the time, and I lent my support to the change. But with the benefit of hindsight, the key argument – that the pool of Māori RN members with the level of skill and knowledge required is so small, that two individuals must be allowed to hold office indefinitely – does a gross disservice to the amazing strength and leadership abilities of Māori nurses as a whole.

In combination with the strict limitations on eligibility for office in Ngā Ture and the introduction of six figure salaries for NZNO officers, the consequence of this Constitutional change – perhaps unintended – has been to effectively turn what should be kaitiaki roles into careers and “jobs for life”. This is having a negative impact on the development and emergence of new Māori nursing leaders, and creating psychological and cultural shifts on the Board which divert its focus away from serving the membership.

Servant leadership is a leadership philosophy in which the goal of the leader is to serve. A servant leader shares power, puts the needs of members and staff first and helps people develop and perform as highly as possible. Instead of the people working to serve the leader, the leader exists to serve the people. This culture is what we need to restore to the NZNO Board, and Constitutional change can be a part of that.

The last question in Section 5 of the Member Survey asks, “If I could propose one process involving the Board that would benefit me as a member, that process would be…”. I suggest that an answer could be, “To apply equal term limits for all Board members so they each understand their stewardship role, as custodians serving on behalf the membership for a limited time only.”

Engagement and Belonging

Section 3 of the Member Survey will strike virtually all NZNO members as odd. Under a heading of “Connection to the NZNO”, it begins by asking whether you belong to a Regional Council. Faced with this question, most NZNO members will wonder, “What’s a Regional Council?”.

In this way, the survey unintentionally highlights what is a fundamental disconnect between NZNO members and the structures of our union. This disconnect is based on flaws in the Constitution. We now have the opportunity to fix these flaws and create new member structures which support engagement and belonging.

The eleven NZNO Regional Councils were created in 1989. They replaced the 54 “branches” in the old New Zealand Nurses Association (NZNA), shortly before it transformed into the NZNO we have today. Under the NZNO Constitution, Regional Councils have a lot of power. Not only do the Council Chairs wield thousands of votes each in NZNO meetings (see above), they also control the submission of remits for the “One Member, One Vote” process and approve candidates wishing to stand for the NZNO Board.

The flaws in the system have been well understood for many years. Back in 1998, the NZNO Conference requested that the effectiveness of Regional Councils be reviewed. The review concluded that Regional Councils were not effective, but the resulting changes were minor.

In 2003, delegates to the NZNO AGM went further. They debated a paper proposing significant change to the structure of NZNO. The discussion paper said:

• “Regional Councils have not been effective in representing members and have been reviewed in the past.
• At present there are 11 Regional Councils. The Committee reviewed the attendance over the past 12 months of six of those Regional Councils; Central, Bay of Plenty, Auckland, Midlands, Wellington and Southern. All met two- monthly. The lowest attendance was three persons, the maximum attendance was 23 (Southern). No other Regional Council meeting had an attendance of 20 or more persons. The average attendance of the Regional Councils over the 12 month period ranged between under 10 to a little over 14 (Auckland). These are extremely low numbers and cannot give any confidence that decision making structures based around Regional Council are inclusive, democratic and participatory.”

The problem has only gotten worse since 2003. In 2010 the official centennial history of NZNO, Freed to Care, Proud to Nurse, described the replacement of union branches by Regional Councils:

“This restructuring was seen by NZNA leadership as better representing the majority of members, who now worked across multiple workplaces. It was perceived by the membership, however, as the destruction of the organic channels that they had created. In fact, the imposed structure was never to function in the comfortable, rhythmic way that the old branches had.”

Today, although NZNO membership has grown to the point that the Regional Councils are supposed to represent thousands or even tens of thousands of members each, most still struggle to get meeting participation numbering in double digits.

I need to stress that the fault in this system does not lie with the member volunteers who keep the Regional Councils running. Regional Council members are among the most dedicated NZNO members, who work incredibly hard to try and make them work. The problem is, they’re working in a structure that’s never worked since it was first created, 33 years ago, and is now broken beyond repair.

“The main drivers behind our present structure were legislative requirements in the Labour Relations Act 1987 and the Employment Contracts Act 1991”, observed the 2003 NZNO AGM discussion paper. These laws were repealed decades ago. NZNO Regional Councils are relics of a bygone age. Divorced from the conditions which led to their creation, they no longer made sense in 2003, and they make even less sense now.

Other problems with NZNO structures flow on from this. The Membership Committee, which is first mentioned in Section 2 of the Member Survey, was created in 2012 “to advise the board”, due to member concerns that the Board would become remote and unaccountable.

It hasn’t worked. The Board did become remote and unaccountable. The Membership Committee was never to fulfil the key functions in its original Charter of:

• “Providing further insight into the views and needs of the diverse membership of NZNO and provide a link to the local level
• Ensuring the NZNO is responsive to the needs and issues of members
• Receiving and considering the summary of Board meetings and providing feedback”

There are two reasons for this. Firstly, because the Board would simply refuse requests to meet, or to provide a summary of their meetings. But also because the Membership Committee is based largely upon the unrepresentative, disconnected Regional Councils.

Despite my best efforts during six years on the Membership Committee, in various roles, I watched it get captured by the agendas of the Board, succumb to the culture of secrecy at the topand finally adopt a new Charter in 2020 which deleted its original purpose. Today almost half the positions on the Membership Committee sit vacant, partly as a result of its irrelevance. Even with the added inducement of fully funded travel, meals and accommodation, paid leave and reimbursement of meeting expenses, the vacancies cannot be filled.

Under “General Understanding of Constitution”, Section 2 of the survey asks about “the most important functions of the Membership Committee”. I suggest that an answer could be: “Representing the views and needs of the diverse membership of NZNO and providing a link to the local level, and ensuring the NZNO is responsive to the needs and issues of members, which it cannot possibly do under current Constitutional arrangements.”

But outside of the Regional Councils and Membership Committee, there are functioning structures where NZNO members do engage and feel a sense of belonging, such as the Colleges and Sections. The functioning structures also include the Worksite Organising Committees (aka WOCs, or the “monthly delegates meeting”), led by an elected Convenor (aka “Lead Delegate”), and the National Delegates Committees (NDCs). The WOCs and NDCs provide crucial input into on NZNO’s industrial strategies at all levels and guide our negotiating teams. You may be surprised to learn that this democratic structure, where members are highly engaged doing vital NZNO work, is described in the NZNO Delegates Handbook but has no formal powers under the Constitution.

The delegates to the NZNO AGM back in 2003 decided to commission a full structural review. The 2004 Report of the Structural Review Committee proposed solutions which still make sense today. It said:

“The Issue

• The Committee recognises that much of the activity and work of NZNO carried out by members occurs at workplaces, Colleges and Sections and it seems appropriate to locate decision making where membership activity occurs…”

“Proposed Changes

• It is proposed that as far as possible NZNO should devolve its decision making and relate to, consult with, and organise its membership through Workplaces, Colleges and Sections.
• The Committee proposes that Workplace Committees be formalised in the governance structure of NZNO. Under the proposed model general membership participation and decision making would be devolved to Workplaces, Colleges and Sections. The primary flow of communication would be directly from workplaces and Colleges and Sections to national structures and vice versa.
• It is proposed that existing Regional Councils… be retained for a period of two years and then reviewed.”

Section 3 of the Member Survey asks, “The benefits that I obtain from a Regional Council are as follows”. Be honest. If the answer is nothing, say “nothing”. Then in Section 7 of the survey, which asks you to, “Indicate below if you have any comment in respect of a specific structure”. You might like to write something along these lines under “Regional Councils”:

“Back in 2004, at the time of the last NZNO structural review, Regional Councils selected the members of the NZNO Board and did all the voting on remits. Both of these democratic functions have now been transferred to the “One Member, One Vote” system. As mentioned in responses under Section 6 of this survey, voting at AGMs and SGMs also needs to be done according to “One Member, One Vote”. The Regional Councils did have a (relatively small) role in organising Regional Conventions, but these have now been cancelled.

The functions remaining – which largely consist of proposing remits, endorsing candidates wishing to stand for Board, assisting with implementation of NZNO policies and strategies, electing Membership Committee reps and working in partnership with Te Rūnanga – should be devolved to Colleges, Sections and constitutionally defined Worksite Organising Committees, in accordance with the recommendations of the 2004 Structural Review Committee. Regional Councils can then be wound up.”

What’s next? 

This article has suggested a few ideas for members to include in their responses to the current Member Survey on the NZNO Constitution. But it’s far from an exhaustive list. For anyone interested, my complete Member Survey responses are available (for a cheeky copy/paste) here.

Section 8 of the Member Survey asks if there are, “any other comments you would like to make in respect of the Constitution of the Organisation.” You might like to comment that NZNO is the only professional association and registered union in Australasia (and possibly the world, apart from the Royal College of Nursing in the UK) which has a Chief Executive Officer. There appears to be no valid reason for this, although it does lead to a much higher salary for NZNO’s most senior manager, funded of course by our membership fees. In fact, it looks like a bit like a colonial hangover. The CEO role prescribed in Section 20 of the Constitution should be re-scoped, possibly as National Secretary, which was the title held by our current CEO as head of his previous registered union and professional association from 2008-2022.

Some of the things mentioned in the Member Survey – like the questions about Partnership under Te Tiriti o Waitangi in Section 6 – relate largely to personalities and practices, however, which won’t be fixed by changing the Constitution. And any Constitution is only as good as the people who operationalise it. The people who have been dominating the NZNO Board for years have trampled on our union’s system of rules and the values which underpin it – much like what President Donald Trump did with the US Constitution (even to the point of seeking to overturn a democratically-elected NZNO President).

So as well as participating in the current Member Survey before 30 April, and considering the suggestions for survey responses in this article, I hope that union members will also participate in the upcoming election for the NZNO Board. Come August, seven of the eleven Board seats will be up for grabs. For the reasons already stated, this year we need to elect people who support the ongoing transformation of NZNO. We need bicultural servant leaders committed to openness and honesty, genuine democracy and engagement and belonging for NZNO members.