The CTU report of the People's Select Committee on the Employment Relations Amendment Bill

Employment Relations

Amendment BillReport of the People’s

Select Committee

December 2013

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Young people aren’t confident to challenge workplace practices. There is already a culture in hospitality that ‘we don’t take breaks, we work hard’. But I know from personal experience that not taking breaks can lead to injury – I am still dealing with my injury now.

If these changes go through it will lead to more young people taking fewer breaks, and increasing the chance of getting hurt at work.

Accidents at work while you are young have a big impact.

Stop shafting workers with silly changes.

Tony Stevens, Young Workers Resource Centre, Hamilton

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The Employment Relations Amendment BillThe Government is proposing a raft of changes to employment law under the guise that they are “technical” changes designed to “tidy up” current employment law. They say the changes will provide fairness and flexibility in workplaces.

Workers all around the country know what fairness at work means – and it’s not what the Government is suggesting.

Changes ranging from eliminating our right to take a tea break, to giving employers the right to dock pay by up to 10 percent for partial strikes mean that the power relationship between employers and employees is getting more and more unequal. Almost every clause in the Employment Relations Amendment Bill aims to disempower workers and drive down wages and conditions.

Workers in New Zealand know that they have a fight on their hands to be treated with fairness and respect. Our views must be taken into account when changes like this are proposed. We are taking our concerns to the streets and to the select committees – and when the official processes ignore us, we will create our own ways to be heard.

Collective bargaining, tea breaks and protections for vulnerable workers are important: important for the kind of society we want to live in and important for every single worker who just wants to do a hard day’s work for a decent day’s pay.

This law doesn’t give us fairness and flexibility.  It creates animosity and conflict; all so a few employers can put pressure on workers to accept worse pay and conditions.

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Employment Relations Amendment Bill timeline5 June 2013 First reading.

Bill referred to the Transport and Industrial Relations Select Committee.

13 June - 25 July 2013 Public submissions accepted.

12 December 2013 The Transport and Industrial Relations Select Committee (and the People’s Select Committee) will report back to the House with recommendations about any changes made as a result of submissions heard.

2014 The Bill will be read for a second and third time. If enough MPs vote for the Bill at the second and third readings, the Bill is enacted and becomes a new law.

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The People’s Select Committee majority reportOver 12,000 union members around the country made submissions against the Employment Relations (Amendment) Bill, and hundreds asked to speak to the Transport and Industrial Relations Select Committee.

Some members were invited to have their say at the Select Committee but the vast majority were not given the opportunity to speak. The Select Committee decided they’d heard enough, and that was the end of what is supposed to be a democratic process.

We think that’s not fair. We know there are union members all over the country who are angry about the changes proposed in the Bill and who want to speak to the Select Committee about it.

That’s why the NZ Council of Trade Unions organised the People’s Select Committee. The People’s Select Committee conducted hearings about the Bill around the country and invited every member who wanted to have a say to attend.

Labour and Green MPs, members of Local Governments, union leaders and others heard submissions, while union reporters recorded the views of their members. This majority report on the Employment Relations (Amendment) Bill is the result of the People’s Select Committee hearings held around Aotearoa New Zealand in November and early December 2013.

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RecommendationsAs well as the specific clause by clause recommendations contained in this report, workers recommend an immediate move to good and positive employment law.

Good employment law would genuinely promote collective bargaining rather than continue to put in place barriers. It would support enterprise bargaining with strong good faith provisions but also provide for industry agreements. Such industry agreements would be built from norms already established in parts of the industry through collective bargaining. This will extend the benefits of collective bargaining to a much greater number of workers.

The extension to collective bargaining is the most important feature of a new law. But there are some other improvements.

The ability for employers to hire a new worker for 90 days with no right of appeal against unfair dismissal would be removed.

Union access to worksites would be improved so that an employer cannot refuse access but a union must be reasonable.

The range of reasons that could justify a dismissal should be narrowed to what a reasonable employer would consider.

Reinstatement would be restored as the primary remedy when a worker has been unjustifiably dismissed.

Workers in precarious forms of employment (such as labour hire, casual employment and contracting) would have rights.

A strengthened employment law framework would lift wages and provide greater protection for working conditions.

A new law would bring film industry workers back under the same set of rights as all other workers.

The new employment law would be part of a legal framework that would include improvements in paid parental leave, and recognition of the right to equal pay including a mechanism to determine work of equal value.

We oppose the amendments being proposed in the Employment Relations Amendment Bill.

We believe the law has to be strengthened, not weakened.

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The statisticsOver 10,000 workers made submissions against the Employment Relations Amendment Bill.

Around 500 asked to be heard by the Committee. They wanted to argue for fairness at work, and show the committee what the effects of the changes would be on workers, their families and communities in New Zealand

Unfortunately, only a fraction of that number were given the opportunity to speak to the committee, and we have heard that some union members, who were brave enough to step forward and tell the workers’ side of the story, were shut down, talked over and bullied by some members of the Committee.

That’s not democracy.

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Clause 4: Good Faith No access to your personal employment information.

The amendment restricts the ability of employees to access employer information relevant to decisions that may have an impact on on-going employment.

If your job is under threat, your employer will be able to withhold information from you under more circumstances than currently. This hurts your ability to effectively defend yourself in a disciplinary investigation or to challenge your employer’s decision to make you redundant.

If a worker is dismissed or made redundant, they should be told why and have the chance to challenge an unfair decision.

Under this clause, employers will be able to make people redundant, or dismiss them, but refuse to show them the information they used to make that decision.

So if five workers lose their jobs, but three get to stay on, you might never know why those three were the lucky ones.

And if you – or someone you know – is being sacked, you can be denied the information you need to defend yourself and that makes it very hard to fight the decision if you think it is unfair.

Recommendation: Delete this clause from the Bill

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The ‘walk away at will’ provision is contradictory to the good faith principles of the Act.

We have had a relatively long period of industrial peace. This law will change that.

New Zealand once prided itself on our international reputation. This law undermines that.

Professor Kevin A. Broughan, Tertiary Education Union

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There are many women and sole providers who are already vulnerable at work and these changes will only make it worse.

The changes will also have a big impact on job security meaning that more children are likely to be ‘transient’ students as parents have to change jobs and hours etc due to lack of security.

Lorna Kenedy, New Zealand Educational Institute

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These changes are erosion by stealth. It’s hard to voice concerns that this is not OK.

John Brooker

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Clause 9: Collective Bargaining – obligation to conclude a collective agreement removed Employers will be able to walk away from bargaining.

Your employer will be able to apply to the Employment Relations Authority to declare bargaining is over. That means:

The previous collective agreement expires. Workers covered by it all go onto individual employment agreements. Employers may then seek to change your terms and conditions;

Industrial action will become illegal once bargaining is declared over;

Unions will have to wait to re-initiate bargaining for 60 days. In the meantime, employers may seek to convince people to leave the union or not to participate in the bargaining.

This clause means that employers will be able to say ‘no’ to a collective agreement and force people onto individual agreements with less job security and lower pay and conditions.

As the law currently stands, when employers and workers sit down at the table to negotiate they are obliged to keep negotiating and reach an agreement unless there’s a good reason that one can’t be reached. Negotiations like this are why union members receive fair increases to pay and conditions (and on-the-whole bigger increases than non-union members).

Clause 9 will mean your employer doesn’t have to keep negotiating. They can just decide to stop, put workers on individual agreements and force people to accept lower pay and worse conditions or even contract out your job altogether.

If this happens, unions won’t be able to do anything about it, or even try to bargain again for 60 days. This gives an employer 60 days to pressure workers to accept less and/or leave the union.

Recommendation: Delete this clause from the Bill

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“ “There is nothing fair about removing the duty to conclude.

Recent disputes like Ports of Auckland, AFFCO meatworks and ANZCO meatworks tell us that bad employers will always push this, and the changes will let them do it.

Bret Brown, New Zealand Diary Workers Union

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You don’t have to be Einstein to figure out what’s going to happen to workers and their wages. Members are already working 2, 3, 4 jobs to get by and worried everytime they go shopping about having enough money.

These changes will cut job security through encouraging re-contracting of cleaning contracts.

Nellie Katipa

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When Richard Seddon declared us ‘God’s own country’, I don’t think he envisioned a nation where the government started playing god with those members of our society who ensure that this country actually runs.

It seems abhorrent that workers who don’t get paid a fair living wage are the workers that are targeted by the Bill. They are vulnerable to employers who are in a race to the bottom by offering the worst pay and conditions.

Pip Tinning, New Zealand Educational Institute

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Clause 10: Collective Bargaining – union initiation period removed Removal of bargaining initiation period.

The period of preference for union initiation of bargaining is removed and either union or employer may initiate 60 days before the collective agreement expires.

This clause allows employers to initiate bargaining at the same time as unions.  Currently, unions get a 20-day window to initiate bargaining first – and they usually do.  

Removing this window will mean employers and unions may try to initiate at the same time, leading to confusion – who initiated first?  Do you count when the letter or email was received, or when it was opened? – and then to expensive legal action to try to sort out who gets precedence.

Recommendation: Delete this clause from the Bill

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Clause 11: Collective bargaining – employer opt-out of multi-employer collective agreement bargainingEmployers will be able to opt out of MECA bargaining.

Employers will be able to withdraw from bargaining for multi-employer collective agreements (MECAs). This could dismantle MECAs that have brought steady improvements in pay and conditions to large number of New Zealand workers.

MECAs are agreements between a union or unions and two or more employers. They are common in the public service where 76 percent of union members in education and 83 percent in the health sector are covered by MECAs rather than single employer collective agreements.

MECAs mean bargaining can happen efficiently, which then gives time for unions and employers to work on other important issues, like the provision of safe, quality care and healthy workplaces.

MECAs provide benefits to union members in terms of consistency of pay and conditions. That means that a nurse at Timaru Hospital is paid the same as a nurse at Waikato Base Hospital. Widespread MECAs mean that employers compete on the basis of the efficiency of their business rather than how little they pay their workers.

MECAs also benefit employers; currently all DHBs negotiate a MECA with unions collectively. If they opted out of the MECA, each DHB would have to negotiate separately, a time consuming job.

Recommendation: Delete this clause from the Bill

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No nurse wants to return to pre-MECA status where everyone is employed on different terms and conditions.

My boss used to say ‘What I pay staff has nothing to do with how much I value them, but what I can get away with.’

Our MECA gives us transparency, fairness and equity.

Glyn Havill, New Zealand Nurses Organisation

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These changes are eradicating fair play, justice and equity

The Nursing MECA is the cornerstone of our employment relationship. Without it, or if these changes go through, New Zealand trained nurses will move to Australia. There may also be impacts on the quality of nursing care provided as there will be fewer nurses wanting to work for DHBs.

Roberta Clunie, New Zealand Nurses Organisation

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Clause 16: Collective Bargaining – removal of the ‘30 day rule’ New staff can be employed on less pay and worse conditions.

This clause would remove the ‘30 day rule’ whereby new non-union employees are currently required to be on same terms as the collective agreement for the first 30 days of employment. This protection will be stripped away so new employees can be paid less. Over time this will reduce everyone’s terms and conditions.

At the moment, when you start a job in a union workplace you can’t be paid less than the going rate in the collective for the first 30 days.

This protection exists to make sure new staff don’t get exploited and can’t be used to put pressure on wages of existing staff. If the Bill is passed, this protection will disappear.

No worker is forced to join a union - we’ve had voluntary unionism in New Zealand for decades. The 30 day rule simply means people get the union’s protection when they first start so they can’t be paid less than the going rate.

New workers are vulnerable, especially if they’re on a 90-day trial. At the moment, the employer can’t exploit that vulnerability to decrease their wage bill. But if the law is changed, employers will be able to pay first one, then another, then another worker lower wages - and provide worse conditions. The employer will have flexibility. The worker will have to take what they’re given.

The result will be lower wages for everyone.

Recommendation: Delete this clause from the Bill

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These changes are really damaging. The amendments are at odds with the whole direction of the ERA. The real agenda of these changes is not about making things fairer, it’s about going back to the Employment Contracts Act.

This will turn workplaces into little tyrannies where workers are too frightened to ask for better pay or conditions, and where wages don’t cover the cost of living.

Peter Harvey, Maritime Union of New Zealand

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This will have a dramatic impact making already vulnerable workers more vulnerable and will be bad for their job security.

The changes to Part 6A are awful. Part 6A workers are low paid, vulnerable workers.

There is not much room to move in contract negotiations on pay – many are only on 35c above the minimum wage, meaning that time or hours is the main thing that contractors offer up as a bargaining chip to get the job done cheaper meaning that workers will lose their jobs, others will be employed on worse conditions of being paid for fewer hours to do the same job.

Shane, Service and Food Workers Union

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Clauses 28 – 42: Sale/Transfer of Undertaking/Vulnerable Employee Protections Job protection will be stripped away.

Changes to existing protections for vulnerable employees in situations where there is a sale or transfer of business/ undertaking. Such protections will no longer apply when the incoming employer (and their associated companies) has less than 20 employees. Additional changes in this area include a requirement for vulnerable employees who wish to transfer to the new employer to make a decision within 5 working days of relevant information being provided by the employer.

Jobs and conditions will not be protected when contracts for services are transferred to a new employer who (along with their associated companies) employs less than 20 employees. This clause will affect cleaners, hospital orderlies and kitchen workers among others.

Cleaning contracts in particular often change hands and this clause means that staff lose job security when this happens. It allows a new contractor for the same job to get rid of staff or “re-hire” staff with no guarantee that they will receive the same pay and conditions. These protections were enacted because these “vulnerable employees” found their pay and conditions driven down by constantly changing employers.

Workers in larger workplaces: Outgoing employers will be required to provide the incoming employer with all your personal information such as wage and holiday records, and HR files, including performance, disciplinary and grievance information. Often this information is wrong, irrelevant to your new employer and may just make them think worse of you.

Recommendation: Delete these clauses from the Bill

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This Bill goes against everything, that as a support worker, I think is important to the role.

This Bill exploits the kind nature of support workers.

We work in the framework of the Health and Disabilities Code of Rights and the Health and Safety Act – this Bill is at odds with the rights and responsibilities contained within these frameworks.

Ngapera Rangiaho, Public Service Association

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The changes will encourage a race to the bottom in this country. We’ve gone back to having to fight for our rights. Removing rest breaks is akin to stepping back in time.

This law will encourage ‘negotiation dictatorial style’ – if you don’t like it, leave.

Laura

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Clause 44: Entitlement to Rest Breaks and Meal Breaks Removing the right to meal and rest breaks

Your employer will be able to restrict the times and durations for tea and meal breaks and how long you must work before you get a break.

Removes current provisions which provide for clearly structured rest and meal breaks. Substitutes non-proscribed rest periods to be taken at a time agreed with or directed by the employer. There may be limitations on breaks including that they are:

subject to interruption

required to be taken at workstation

Alternatively an employer may not provide rest breaks at all if “compensatory measures” are provided.

We all look forward to having a break during the work day – getting away from the computer or the workshop, having a cuppa, stepping outside for some fresh air, getting off our feet for a couple of minutes.

This clause would take away the guaranteed minimum rest breaks and replace them with a general obligation for your employer to give you “a reasonable opportunity” to get a break.

If you and your employer can’t agree on what that “reasonable opportunity” means, the employer will decide. If your employer thinks it’s not “reasonable” to give you a break at all, you may have to work without a toilet break or cup of tea.

Meal and rest breaks are an essential part of having a healthy and safe workplace.  Working long stretches without a break contributes to errors and accidents.

Recommendation: Delete this clause from the Bill

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I remember the Employment Contracts Act – we lost conditions and power in the workplace.”

Senior nurses who have been there before are terrified they might have to go back to individual contract negotiations.

Carol Fiend, New Zealand Nurses Organisation

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Clause 55: Strikes Strikes and lockouts will require written notice

The changes will make it very difficult to take industrial action in support of improved terms and conditions and even if there is a threat to your health and safety.

All strikes and lock-outs will now require written notice (existing requirements relating to essential services continue to apply).

Strike notices including those in essential industries will have to state the date on which the strike will end. Additionally, any withdrawal of strike/lock-out notice will also need to be confirmed in writing. Employers may try to find any issues with strike notices they can to stop the strike or sue workers and unions for substantial damages.

It will be more difficult to take industrial action and that means that workers are likely to get a worse deal in collective bargaining.

Recommendation: Delete this clause from the Bill

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“ “Workers need a break, its important to be able to call the kids’ school or make a doctor’s appointment. These things compound and make workers lives unbearable.

Glen Barnes

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Clause 56: Partial Strikes Allows the employer to dock pay for low-level industrial action.

This is specific provision providing for partial deductions of pay in the event of a partial strike. The employer can take a punt at how much work they think the worker has stopped doing and deduct that amount (regardless of whether this drops the worker’s pay below the minimum wage or whether the worker does something else instead). The Bill also enables employers to arbitrarily impose a reduction of 10 percent if they wish, regardless of the real impact of the partial strike.

A partial strike doesn’t mean walking off the job – it can be any change to your normal work patterns. Partial strikes can be endlessly creative: they might involve a paperwork ban, or refusing to provide cover for workers on breaks.

The Government says this means a loss of productivity to employers, who should be allowed to pay you less, in proportion to the amount of work they think you are not doing. And if they think it’s too hard to work that out, they can just take off 10 percent.

Recommendation: Delete this clause from the Bill

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Many of the parents of kids at school have to do 2 or 3 jobs already. This law will make that worse as it will cut wages and conditions, which will make it worse for the kids at school.

It’s pretty terrifying that the Ministry will just be able to say bargaining is over. It’s a cynical attack on the workers at the bottom – which is the majority these days.

Rachel Chater, New Zealand Educational Institute

New Zealand Council of Trade Unions Level 7, West Block, Education House, 178 Willis St, Wellington.

PO Box 6645, Marion Square, Wellington 6141.

Phone 04 385 1334 www.nzctu.org.nz