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Posts Tagged ‘Ports of Auckland’

A proposed Labour-Green-Mana(-NZ First?) agenda – part toru

8 March 2014 3 comments

Continued from:  A proposed Labour-Green-Mana(-NZ First?) agenda – part rua

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new-zealand-national-party_3382 adapted 2014

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An incoming Labour-Green-Mana(-NZ First?*) coalition government will have much work to do – especially in it’s first three years.

In the six years that National has been in power, they have passed many odious and often repressive pieces of legislation. Labour and the Greens have already committed to repealing some of these laws and policies.

As a Labour-led coalition government addresses growing problems of child poverty; income inequality; a shortage of decent, affordable housing; and chronic unemployment, a legislative programme will demand a long list of progressive reforms.

In no particular order;

The 90 Day Employment Trial Period

An amendment to the Employment Relations Act 2000, Section 67A, allows  employers to sack – without just cause or a chance for an employee to improve performance – within a 90 day period.

It gives unbalanced power to employers who can blackmail an employee or get rid of them at the slightest whim. It also makes workers less willing to be mobile in the workplace. Why change jobs at the risk of being fired within 90 days of taking up a new position?

When the 90 Day Trial period was first introduced in April 2009, it applied only to companies employing 19 staff or less.

By April 2011, this was extended to all companies regardless of staff numbers. (A typical National strategy; start small – then encompass an entire sector.)

Has it helped  generate more jobs as National claimed it would?  Evidence suggests it played very little part in creating employment, and indeed unemployment went up after both legislative changes,

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So aside from empowering employers and disempowering workers, what exactly was the point of enacting this piece of legislation? Because it seems that an awful lot of people lost their jobs through this legislation. As one media report stated,

It is not known how many workers were dismissed during the trial period, but the figures revealed 27 per cent of employers said they had fired at least one new employee during or at the end of their trial.

This means at least 18,000 people lost their jobs in the first three months of employment last year, with the actual figure likely to be much higher.

And precisely how does this raise wages, as per Dear Leader’s past promises (see below)?

This law gives too much power to one party in the Employer-Employee relationship, and it has no place in a fair-bargaining workplace.

On 17 October 2010, Labour promised that this law would be scrapped by an incoming Labour-led government. I hope the current Labour leadership has not resiled from this commitment.

Ports of Auckland Dispute – Shipping Lines Price Fixing

“The average income has been about $90,000, so it hasn’t been a badly-paid place. But the problem is flexibility when ships arrive and when staff get called out, how they can cope with that.” – John Key, 12 March 2012

Putting to one side the myth of  POAL maritime workers earning $90,000 – so what?

Even if it were true (which is doubtful – POAL has never released the workings of how they arrived at that sum, despite requests), isn’t such a good wage precisely what Dear Leader John Key has been advocating?

POAL management sought to reduce costs;  casualise their workforce; and compete with Ports of Tauranga for shipping business. Unfortunately, competing on costs would, by necessity, involve driving down wages.

This appears to have been motivated  by a high degree of price-fixing by shipping cartels, as was pointed out by the Productivity Commission in April 2012,

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Full story

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Rather than supporting the workers, Dear Leader bought into a situation where international shipping companies were playing New Zealand ports off against each other, to gain the  lowest possible port-charges.  Even local company, Fonterra, was playing the game.

Here we have a situation where New Zealand workers were enjoying high wages – something John Key insists he supports – and yet he was effectively allowing international corporations to create circumstances where those wages could  be cut and driven down.

As with the “Hobbit Law”, our Dear Leader appears to pay more heed to the demands of international corporate interests than to fulfilling his pledges to raise wages.

An incoming Labour-led government should immediatly implement the Productivity Commission’s recommendation,

“The commission recommends that New Zealand require shipping companies wishing to collaborate to fix prices or limit capacity to demonstrate to the Commerce Commission that there will be a public benefit which will outweigh the anti-competitive effects.”

This problem must be addressed by an incoming government. It is simply intolerable for foreign corporations to be dictating labour laws; industrial relations; and wages, in a supposedly sovereign nation.

Youth Rates

From 1 May 2013, National  re-introduced a new Youth Rate. The rate would be set at $10.80 an hour [soon to be increased to $11.40 per hour]– compared to the then- minimum rate of $13.50  an hour  [soon to be $14.25 on 1 April this year], and would include 16 to 19 year olds.

John Key stated,

“For a lot of employers, they will go out there and say, ‘I’m going to give somebody a go that’s been in the workforce before’ and so the balance is against that younger person. That’s very disheartening for them – they are good young people, they just want a chance.

So I think it’s got to be seen in perspective – the vast overwhelming bulk of youngsters actually won’t go on a starting out wage.”

Which conflicts with John Key’s other assertions that he wants to see wages rise;

We think Kiwis deserve higher wages and lower taxes during their working lives, as well as a good retirement.” – John Key, 27 May 2007

We will be unrelenting in our quest to lift our economic growth rate and raise wage rates.” – John Key, 29 January 2008

We will also continue our work to increase the incomes New Zealanders earn. That is a fundamental objective of our plan to build a stronger economy.” – John Key, 8 February 2011

We want to increase the level of earnings and the level of incomes of the average New Zealander and we think we have a quality product with which we can do that.” –  John Key, 19 April 2012

Youth rates won’t achieve that goal, Mr Prime Minister!

There is no good reason why Youth Rates should actually create new jobs. More likely, a drop in youth wages will simply create more ‘churn’ in employment/unemployment numbers.

As David Lowe, Employment Services Manager for the Employers and Manufacturers Association, inadvertently  revealed,

Without an incentive an employer with a choice between an experienced worker and an inexperienced worker will choose experience every time.”

As Lowe admitted – there is no new job for the  younger worker. S/he is merely displacing an older worker.

As it is, figures from Statistics New Zealand’s  Household Labour Force Survey showed that unemployment for young people had already fallen by the March 2013 Quarter – a full two months before Youth Rates came into effect;

In the year to March 2013, there was a large fall in unemployment for people aged 15–24 years (down 10,500). This fall can be largely attributed to a decrease in unemployed 20–24-year-olds (down 11,200). This was an atypical fall in unemployment, as the number of people unemployed for this age group usually increases during March quarters. The unemployment rate for people aged 20–24 years fell 4.1 percentage points to 10.9 percent – the lowest rate since the September 2009 quarter.

The employment rate for 20–24-year-olds rose over the year to March 2013. There was also an increase in the number of people aged 15–24 years not in the labour force over the year. Behind this was a rise in the number of young people outside the labour force who are studying (up 25,000). The number of both 15–19-year-olds and 20–24-year-olds in study rose –  up 16,200 and 8,800 respectively.
NEET rate declines

In seasonally adjusted terms, the NEET (not in employment, education or training) rate for youth (aged 15–24 years) decreased 1.5 percentage points, to 12.5 percent in the March 2013 quarter. This is the lowest youth NEET rate since the September 2011 quarter. The NEET rate for people aged 20–24 years fell 2.4 percentage points to 15.9 percent.

As the global economy continued to improve; the Christchurch re-build moved into high gear; and demand for our exports increased, unemployment was bound to eventually fall.

In which case, paying young workers a lower wage than their older counterparts was nothing more than a “gift” handed to employers.

As such, it has no place in a modern, civilised society. Youth rates are exploitative and demoralising. They also drag adult wages downward, as employers can opt for cheaper labour, as  David Lowe stated above.

In October 2012, Labour’s then-Leader, David Shearer condemned youth rates,

“It’s not going to create jobs by driving down wages.  These people are going to leave and go to Australia.

We need an economy that provides decent, secure jobs and good incomes and where young people have hope and opportunity, not the low-wage vision promoted by National.”

An incoming Labour-led government must repeal this exploitative legislation.

Continued at:  A proposed Labour-Green-Mana(-NZ First?) agenda – part wha

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(* At this point in time, NZ First’s leader, Winston Peters,  has not indicated which bloc – Labour or National – he intends to coalesce with. As such, any involvement by NZ First in a progressive government cannot be counted upon.)

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Above image acknowledgment: Francis Owen

To be continued at:  A proposed Labour-Green-Mana(-NZ First?) agenda – part wha

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References

Parliament Legislation: Employment Relations Act 2000, Section 67A

NZ Herald: Will the 90 Day trial period make a difference?

Beehive:  90-Day Trial Period extended to all employers

Trading Economics: New Zealand Unemployment Rate

Waikato Times: Thousands sacked under 90-day trial period

Radio NZ:  Labour would scrap 90 day trial – Goff

Fairfax media: Calls to end shipping lines’ price fixing

Fairfax media: Jackson pulls back from port comments

Radio NZ: PM defends lower youth pay rate

Scoop media: Starting-out wage will help young people onto job ladder

Statistics NZ: Household Labour Force Survey: March 2013 quarter

TV1 News: Employers back youth ‘starting wage’

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NZ Truth – Cameron-style

[This blogpost best read to the popular cult-hit, Gangnam-style.]

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The sleaziest blogger in New Zealand, Cameron Slater,  taking up the reins of editing the sleaziest newspaper,  ‘Truth‘ – appropriate. There must be some fundamental law of bio-physics which explains the process how such clumpings take place.

The appointment is ostensibly to give a boost to ‘Truth’s‘  circulation – a Big Ask in this age of internet and freely available news-content. Better newspapers than kitty-tray-liner-‘Truth‘ are finding that their circulations are falling, despite attempts and gimmicks to stem the slide.

What Slater has to offer ‘Truth‘ is a bit of a mystery.

More sleaze? Plenty on the internet, with blogs such as the one Cameron edits.

A return to the Page Three Girl, with unfeasibly large mammary glands? How quaint.

Listings of recent divorces, such as the ‘Truth‘ used to publish? Care factor; nil.

Stories of political corruption and incompetance? Plenty of those. But considering that National is in power, I doubt his political handlers on the Ninth Floor will take kindly to their attack-pooch turning on their own. They shan’t be amused.

Or will he launch ongoing attacks on the Parliamentary Opposition? Bashing Labour, the Greens, Mana, NZ First, etc, will be a pointless exercise. Not being part of the government, what would be the point?

Or else Slater can just make up any old sh*t. As TV3’s Duncan Garner took him to task on 15 March, this year, when Slater was caught out fibbing (again),

For the record, claims made by the Beached Whale (Whale Oil blogger Cameron Slater) that 3 News secured footage of John Key’s 2008 speech from the PSA are inaccurate.

The footage is held in our library.

It brings into question the credibility and accuracy of all his other blogs, read by dozens of followers.

Big claims from a big man on a small blog site.

It’s a shame he is wrong. Why does Slater make so much of his stuff up?

Source: Whale Oil lies again – opinion

The most stomach turning aspect of this appointment is not that Slater will be ‘Truth’s‘ editor – the two are a perfect match for each other – but his comments today on Radio NZ’s ‘Morning Report‘,

It used to be that journalists held the powerful to account. They went out there and they outed people  that basically caused the working man grief.”

Hear: Radio NZ – Blogger takes helm at Truth

Yes, it’s terrible when someone does things that  “caused the working man grief”. Things like this,

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Full story

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Full story

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Slater had nil reservations about posting personal details of a port worker. Perhaps he thought that smearing a man whose wife had died from a terminal disease would not “cause the working man grief “?

Let’s hope Slater is more responsible  in his new, paid role.

What are the chances?

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Citizen A – 21 June 2012 – Online now!

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Citizen A

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- 21 June 2012 -

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-  Efeso Collins & Phoebe Fletcher -

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Issue 1 : The Pacific Island communities marched up queen street last week in protest – what are their concerns and does NZ give the Pacific Island community enough political and cultural voice?

Issue 2: The Ports of Auckland dispute has been settled, but are there still moves to sell and move the Port? Should Local Councils be privatizing their assets?

Issue 3: Len Brown has organized a new task force to look into the drinking culture – what should he be doing?

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Acknowledgement (republished with kind permission)

Tumeke

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Employment Court Upholds Maritime Union Injunction!

29 March 2012 6 comments

Announced today, the Employment Court has judged in favour of the Maritime Court, seeking an injunction against Ports of Employment Ltd’s  plans to contract out 297 jobs currently held by union workers,

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MARITIME UNION OF NEW ZEALAND INC V PORTS OF AUCKLAND LIMITED

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NZEmpC AK [2012]
NZEmpC 54 [27 March 2012]

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IN THE EMPLOYMENT COURT
AUCKLAND

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[2012] NZEmpC 54
ARC 13/12
ARC 17/12

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IN THE MATTER OF an application for declaration, proceedings removed from Employment Relations Authority
AND IN THE MATTER OF applications for interim injunctions
BETWEEN MARITIME UNION OF NEW ZEALAND INC Plaintiff
AND PORTS OF AUCKLAND LIMITED Defendant

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Hearing: 27 March 2012 (Heard at Auckland)
Counsel: Mr Carruthers QC, Mr Cranney and Mr Mitchell, counsel for plaintiff Mr Haigh QC, Mr McIlraith and Ms Dunn, counsel for defendant
Judgment: 27 March 2012
Reasons: 29 March 2012

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REASONS FOR ORAL INTERLOCUTORY JUDGMENT
OF JUDGE B S TRAVIS

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[1] These are my reasons for issuing interim injunctions on 27 March 2012 in the following terms:

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(i) The defendant will take no further steps to advance or implement the proposal to make the plaintiff’s members redundant.
(ii) The defendant will not dismiss the plaintiff’s members.
(iii) The defendant will not employ or engage Drake New Zealand Ltd or Allied Workforce Ltd or any other person to perform the work of striking or locked-out employees in breach of s 97 of the Employment Relations Act 2000.
(iv) The defendant will instruct Drake New Zealand Ltd and Allied Workforce Ltd and any other contractor employed or engaged by the defendant to cease any form of advertising, training or recruitment or any form of preparation for those activities on behalf of the defendant or otherwise.
(v) The defendant will not make any statement to, or which could, encourage any union member to seek or accept employment with the contractors identified in (iv) above.
(vi) In the event that the defendant intends to employ or engage any other person to perform work covered by the collective agreement in dispute, it will give the plaintiff 48 hours’ notice to enable the plaintiff to apply for relief.
[8] The defendant will not take any further steps in relation to applications for voluntary redundancy until 5pm on Friday 30 March 2012 or further order of the Court.

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[2] The plaintiff union (MUNZ) has made two applications for interim injunctions against the defendant. The first in time was filed on 13 March 2012 and sought interlocutory injunctions, in broad terms, to prevent the defendant, Ports of Auckland Limited (POAL), from proceeding to contract out stevedoring and other work at the ports of Auckland (the contracting out injunctions). The contracting out injunctions were set down for hearing on 22 March. They were then adjourned on the basis of undertakings offered to the Court by the defendant, which were accepted by the plaintiff on 21 March, and are recorded in a minute of 22 March. It was agreed that the interlocutory application for the contracting out injunctions could be brought on at short notice by either party.

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[3] The plaintiff union applied on 23 March to bring on the contracting out injunctions for hearing. This was on the grounds that the undertakings offered to the Court by the defendant and recorded in the minute of 22 March had been breached. The plaintiff sought more effective oversight by the Court of the defendant’s conduct. The injunction application was therefore set down for hearing on Tuesday 27 March.

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[4] At that hearing, the defendant consented to the plaintiff’s application but the Court was required to be satisfied that it had the jurisdiction to issue the interim injunctions and that this was a proper case for the exercise of its discretion. Mr Carruthers, counsel for the plaintiff, provided his written submissions to the Court and the defendant. These contained references to a schedule of documents from the bundles of documents obtained on disclosure and filed in Court by the plaintiff. It was agreed that I should not have regard to those documents until the defendant had had the opportunity to respond to them, which it would do by midday on Thursday 29 March. As I shall indicate, I was satisfied from the balance of Mr Carruthers’s submissions that this was a proper case for the issuance of the interim injunctions as consented to by the defendant.

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[5] The second application for interlocutory injunctions was to restrain what were allegedly unlawful lockouts imposed by the defendant on 22 March (the lockout injunctions). That application was filed on 23 March and agreed to be heard at the same time as the contracting out injunctions. The second application was adjourned by consent until Friday 30 March 2012 on the basis of the defendant’s offer to pay all permanent and P24 union employees (a category covered by the expired collective agreement) who were available for work, for the period from 3pm on Thursday 22 March when the strike notices were lifted, for their guaranteed shifts under the expired collective agreement, until 3pm on Friday 30 March 2012. To determine which union employees were available for work, those union members would need to present themselves at 3pm on Thursday 29 March 2012 at a place within one kilometre of the Port nominated by the defendant, and which was to be advised to the plaintiff by 9am on Wednesday 28 March.

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Factual background

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[6] The factual background which I am about to set out is not, for the most part, in dispute and is based on the current pleadings. It should be noted, however, that although leave may be required to do so, as the substantive matter has been set down, either party may apply to amend its pleadings so the admissions on which I have relied for present purposes only, may not be those on which the substantive proceedings are heard.

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[7] Three classic tests are to be applied to the question of whether an interlocutory injunction should issue. The first is whether the plaintiff has an arguable case. The second test is where the balance of convenience lies between the parties before the substantive matter can be heard and determined. Because the grant of interim relief is discretionary, the third test requires the Court to stand back from the detail of the first two tests and to ask where the overall justice of the case lies at the interlocutory stage.

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[8] The plaintiff is a registered union. The defendant was established under the Port Companies Act 1988 and operates the port at Auckland. The defendant employs approximately 297 of the plaintiff’s members (the union members), of whom approximately 235 are employed as stevedores. Others are engineers and tradespersons. The plaintiff and the defendant are engaged in collective bargaining to settle a new collective agreement to replace the collective agreement which expired on 30 September 2011. The expired agreement continues in force, pursuant to s 53 of the Employment Relations Act 2000 (the Act). The bargaining commenced on 6 September 2011.

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[9] One of the issues discussed, but yet to be settled in the bargaining, is a proposal by the plaintiff that work covered by the new collective agreement not be contracted out during the term of the agreement. The expired collective agreement contains a clause which deals with contracting out but there is a dispute as to whether it has been properly complied with by the defendant.

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[10] On 9 January 2012, it is alleged that the defendant issued a public press statement and advised the plaintiff that the defendant proposed the introduction of a contracting out model which might lead to the redundancy of the union members (the contracting out proposal). All subsequent dates refer to events in 2012.

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[11] On 7 March, the defendant informed the plaintiff that it had decided to implement the contracting out proposal and stated that this would result in the termination of the union members’ employment and their reengagement with new employers (the contractors) from whom proposals were being sought by the defendant. The defendant referred to a six week period of consultation prior to the
defendant issuing notices of termination. The defendant alleges that stevedores employed by it, including the union’s members, have the opportunity to apply for employment with the selected contractors, that it has consulted with the union on these matters and alleges that the union has refused to engage on these issues. These matters are in dispute.

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[12] On 9 March, it is alleged that the plaintiff received a media release from the defendant which stated that it had signed contracts with Drake New Zealand Limited (Drake) and Allied Workforce Limited (AWF) following its decision “to introduce competitive stevedoring at its Fergusson and Bledisloe Container Terminal operations” and that a further press release naming the third company that would be working with the defendant was expected shortly.

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[13] The affidavits filed in support of the interim injunction stated that the union has received no information as to the terms of the contracts between the defendant and the selected contractors. The affidavits also deposed that the union understands that its members are going to be encouraged to make applications for positions with the new contractors. In support of those allegations, references were made to statements made by the chairman of the defendant, Richard Pearson, in the media in which he was alleged to have said that the union members needed to apply for jobs with the new contractors.

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[14] Affidavits from three union members have deposed that they are permanent stevedores who have been employed by the defendant for up to 15 years, have economic commitments to their family and are torn between wanting a collective agreement between their union and the defendant and their concerns that they might have no option but to apply for employment with the contractors. The affidavit of Russell Mayn, the secretary/treasurer of the Auckland branch of the plaintiff union, has expressed the view that the union membership will be torn between the need to keep working even with contractors and their wish to be employed under a collective agreement and that since the announcement of 9 January, the collective bargaining has been undermined by the threat of the contracting out proposal. Mr Mayn also deposes that the active recruitment of stevedores for the contracting companies would allow such employees to be engaged to perform the work of striking workers
during the strikes which, at the time the affidavits were sworn, were currently in place and were to continue. The strike notices were withdrawn on 22 March.

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[15] On 21 March, the agreement referred to above (at [2]) was reached between the parties which allowed the application for the lockout injunctions to be adjourned sine die to be brought on at short notice, if sought by either party. It also allowed for the substantive hearing, set down to commence on 26 March for five days, to be adjourned sine die on the same basis. This agreement was reached on the basis of the undertakings given by the defendant in the following terms:

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The defendant makes the following undertakings for a period of one month from Thursday 22 March 2012 and thereafter by agreement or further order of the Court:

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(i) The defendant will take no further steps to implement the proposal to make the plaintiff’s members redundant.
(ii) The defendant will not dismiss the plaintiff’s members.
(iii) The defendant will not employ or engage Drake Personnel Limited or Allied Workforce Limited, or any other person to perform the work of striking employees in breach of s 97 of the Employment Relations Act 2000 and will take steps to instruct Drake Personnel Limited, Allied Workforce Limited and any other potential contractor not to undertake any recruitment or training related to the contracting out of work at Ports of Auckland.
(iv) In the event that the defendant intends to employ or engage any other person to perform work covered by the collective agreement in dispute, it will give the plaintiff 48 hours’ notice to enable the plaintiff to apply for relief.

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[16] The plaintiff’s affidavits set out statements allegedly made by Mr Pearson on 22 March in radio and television interviews to the effect that there had been “no U-turn. You could call it a route deviation if you have to”. He also allegedly stated on television on 22 March that the defendant was:
… encouraging our staff that’s on strike still to come and apply for jobs with the contractors. So there’s no change there. The board, we’ve made no change in our view, of the benefits of contracting and it’s the right decision for the Port.

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[17] Other examples are given, including an interview allegedly given at 7.16am on 22 March on Newstalk ZB Auckland during the Mike Hosking Breakfast programme, in answer to a question as to whether there had been a U-turn, Mr Pearson stated:
… we are encouraging our staff that are actually still on strike, if they want to apply for jobs at the Port, come and apply, there’s no change to that process at all.

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[18] The plaintiff also provided an affidavit which detailed enquiries allegedly made of Drake and AWF which suggested that the staff of those companies, responding to enquiries on 21 and 22 March, were unaware of any instruction from the defendant to cease recruitment of staff for work at the defendant’s premises. I note that Mr Haigh, counsel for the defendant, gave an undertaking in open Court on 27 March confirming that the defendant had instructed both Drake and AWF to cease any form of advertising, training or recruitment or any form of preparation for those activities on behalf of the defendant, as it had undertaken so to do. I unhesitatingly accepted Mr Haigh’s undertaking, as did Mr Carruthers.

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[19] At around midday on 22 March, the members of the union voted to end their strike currently in place, which was to end on 23 March, and voted to end the two week strike that would have commenced on 23 March and have concluded on 6 April 2012. The union immediately wrote to the defendant advising it that the strikes ended immediately and that it was the union’s expectation “that members will be rostered from second shift today commencing at 3pm.”

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[20] Mr Mayn deposes that the union members had an expectation that some members would be able to return to work at the commencement of the second shift at 3pm on 22 March. He also deposes that since that time, members of the union have not been allowed to return to work and that the defendant invited the plaintiff to attend a meeting to discuss the issue on 23 March. He also deposes that at around midday on 22 March, the defendant served a lockout notice on the plaintiff advising of a complete and continuous discontinuance of employment from 12.01 am on 6 April until its demands were complied with.

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[21] The issues relating to the lockout notice and the defendant’s alleged refusal to allow the union employees to return to work on 22 March will be dealt with in the hearing on 30 March.

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Arguable case

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[22] Counsel for the defendant has advised the Court that, whilst the defendant does not accept that it has breached any of the undertakings recorded in the Court minute of 22 March, it nevertheless consented to the orders sought by the plaintiff in the contracting out injunctions.

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[23] The plaintiff has indicated that it intended to amend its application, in relation to the contracting out injunction, to seek a further order that the defendant not progress any voluntary redundancies. This is based on a letter allegedly sent to members of the union on 23 March by Mr Gibson (Chief Executive of POAL), which refers to the handling of enquiries from employees seeking voluntary severance. Without objection, the plaintiff has been granted leave to amend its contracting out injunctions application to include reference to the allegations about voluntary severance and this matter will be dealt with on 30 March. In the meantime the situation will be covered by the last interim injunction set out in [1] above.

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[24] I find that there is a seriously arguable case that the actions of the defendant in allegedly threatening to and then deciding to contract out the work on which the union employees were engaged under the expired collective agreement whilst collective bargaining was on foot for a new collective agreement was likely to undermine and arguably has undermined the bargaining. It will also, arguably, undermine the bargaining in the future. It is therefore seriously arguable that those actions have breached s 32(1)(d)(iii) of the Act. This section provides that the duty of good faith in s 4 of the Act requires a union and an employer bargaining for a collective agreement to do a number of things. These include the requirement in subsection (d)(iii) that the union and the employer:
must not undermine or do anything that is likely to undermine the bargaining or the authority of the other in the bargaining.

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[25] It is contended by the plaintiff that the proposal and the decision to contract out have caused a fear of dismissals among union members and has created pressure on their families and thereby undermined the bargaining for the new collective. There is evidence in the affidavits before the Court which makes this arguable.
[26] Mr Carruthers’s submissions noted that the issue of mass dismissals of the workforce during bargaining has been addressed only briefly in the s 32(1)(d)(iii) context and was left open by Chief Judge Colgan in Eastern Bay Independent Industrial Workers Union 1995 Inc v Norske Skog Tasman Ltd.1 It was not raised in New Zealand Amalgamated Engineering Printing & Manufacturing Union Inc v Carter Holt Harvey Ltd2 and he submitted that the restructuring in that case was allowed to continue in parallel with bargaining because contracting out was, unlike the present case, not an issue in the bargaining.

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[27] Mr Carruthers submitted that, even under the Employment Contracts Act 1991, mass dismissals for bargaining purposes had been found to be unlawful in McCulloch v New Zealand Fire Service Commission3 and New Zealand Seafarers’ Union Inc v Silver Fern Shipping Ltd (No 2).4

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[28] Next, it has been contended that the dismissal proposals constituted an unlawful lockout. I consider that this is less seriously arguable because there appears to be a lack of the demands which are required to bring the defendant’s alleged actions within the definition of “lock out” in s 82(1)(b)(ii) of the Act.

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[29] It is also contended that the dismissal proposals are contrary to the obligation imposed by s 4(1A)(b) of the Act which requires the defendant to be active and constructive in maintaining a productive employment relationship with the union members of the plaintiff. It is contended that the decision to initiate mass dismissals of the entire bargaining unit was contrary to that duty. There is also an allegation that the defendant has failed to provide information concerning the contracting out proposals in breach of s 4(1A) before any decision was made.

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1 [2010] NZEmpC 165 at [11].
2 [2002] 1 ERNZ 597.
3 [1998] 3 ERNZ 378.
4 [1998] 3 ERNZ 786.

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[30] Finally, there is an issue that by progressing the dismissal proposal and engaging the contractors, their employees will be performing the work of striking employees in breach of s 97 of the Act. That will be equally arguable, even though the strike has ceased, if the dismissal proposals are pursued while the threatened lockouts apply. I find that all these issues are arguable and they will be dealt with in the substantive hearing commencing on 16 May.

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[31] As to the balance of convenience, if the dismissal proposals were allowed to proceed before the issues can be substantively resolved, this arguably would have irretrievable consequences for those dismissed employees. The injunctions sought apply until the substantive hearing and may delay the defendant exercising its contractual rights (which are also in issue). However, to permit the exercise of those rights, which are in dispute in the interim because of statutory requirements, could cause irreversible damage to the plaintiff’s members. I note, in this regard, that the substantive issues would have been addressed in the week commencing 26 March but for the undertakings which arguably have been breached. The Court could have provided an earlier fixture in the week commencing 23 April, but counsel for the defendant advised that the defendant was not available. The date finally allocated was suitable for the parties. In all the circumstances, I was satisfied that the balance of convenience favoured the granting of the injunctive relief sought, in the form to which the defendant consented.

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[32] Standing back from the detail, I was also persuaded that the overall justice of the case required that the defendant be prevented from exercising its dismissal proposals until its right to be able to do so, in light of the statutory requirements, is dealt with by the substantive hearing.

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B S Travis
Judge

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Judgment signed at 11.00am on 29 March 2012

Source

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Clearly, Judge Travis is thouroughly unimpressed with the behaviour of POAL and has issured his judgement accordingly.

It is reassuring that the Employment Relations Act works in favour of workers and employers cannot ride roughshod over their employees.

Long may this continue.

Nek step: sack the board and CEO of POAL. Their incompetance has cost Auckland millions in lost income.  The Auckland Council must address this vital issue, or themselves be accused of gross dereliction of duty.

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Acknowledgement

Helen Kelly

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Gerry Brownlee – “In the public interest”

24 March 2012 3 comments

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Are we being treated as children by National’s Gerry Brownlee?

It certainly appears so, when he refuses to release information relating to the Ports of Auckland dispute. It appears that any information Brownlee is witholding is being done because it would be embarressing to National.

Let’s be upfront here; National leaks information when it suits their agenda.

The Nick Smith/Bronwyn Pullar situation is one example. Who leaked Pullar’s name and details to the media?

Who leaked Michelle Boag’s email, that had been sent to ACC Minister Judith Collins (and subsequentlyt forwarded to ACC)?

It could only have been one of two ‘players’ in this politi-drama; ACC or a Minister of the Crown. My money is on the latter.

And now, in the last 24 hours, we have the leaking of pay and conditions of MFAT (Ministry of Foreign Affairs &  Trade) staff to the media. Again, judging by the detailed nature of the information leaked, it could only have emanted from a Ministerial desk.

And in July 2009, we had the open release of  Natasha Fuller and   Jennifer Johnston’s WINZ details to the media, by Welfare Minister, Paula Bennet.

The condemnation of Bennett’s unethical behaviour led to complaints to the Privacy Commissioner (still awaiting resolution).

I suspect that the odium laid upon Bennett’s head over her abuse of Ministerial power served as a warning to other National ministers. Now, instead of releasing information openly, they now do it through  clandestine means, employing third parties such as feral bloggers.

It is obvious that Brownlee has something to hide – that is the only interpretation of his outright refusal to release information to the public. (Information, by the way, which we taxpayers have paid for.)  Brownlee is hiding information that is most like embarressing and could shed some light on the machinations of POAL management, Board, and ministerial involvement.

After all, if the information wasn’t potentially damaging to Brownlee and National – wouldn’t it  have served their purposes to have released it by now?

In fact, wouldn’t they have leaked it already?

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Related Blogposts

Gerry Brownlee – Diplomat

Finland, some thoughts

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Lies, Boards, and Aucklandports (#rima)

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Last night…

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Source

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In the NZ Herald,  Port chairman Richard Pearson said,

Judge Travis had encouraged the company to return to mediation and it would do so in good faith. The only thing that has changed is that the judge has encouraged the parties to have one more crack at mediation. That is it.”

One could practically hear a collective sigh of relief from the citizens of Auckland; port workers would be back at work; and POAL would return to mediation.

Brilliant!

Common sense prevails!

People were practically dancing in the streets!!

But then, by this morning,  an industrial “atomic bomb” was detonated,

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It should be noted that, as in the case of a Union required by law to give two weeks notice of  a strike, an employer must also give two weeks notice of any intention to lock-out workers. No ifs, no buts, no maybes; that’s the law.

It is one thing for POAL to issue a two weeks notice to port workers. That is lawful (though not terribly wise).

It is also another thing for an employer to lock-out workers immediatly, as seems to be happening. That is illegal. It is just as illegal as a strike without notice, as happened recently in Wellington.

It is also hardly a sign of good faith bargaining, as Labour Party employment issues spokeswoman Darien Fenton said today,

Any good faith bargaining was impossible with a lockout notice looming. That action is in defiance of an agreement reached just yesterday with the Employment Court that good faith negotiations would resume with the Maritime Union.”

On this issue, it appears that POAL management have mis-calculated. The Union has every right to seek legal remedies through the Courts, and indications are, that the Maritime Union will do so.

This incident should give considerable cause for concern to the Auckland Council. It has been more and more apparent recently that POAL management are practically out of control, and are pursuing an agenda of their own.

That agenda became more apparent with the shock revelations uncovered by the NZ Herald that a POAL manager is also  a director of another company – and has been recruiting non-union contract-labour to work on the ports,

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Full Story

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This is no longer an industrial dispute – this has the odour of conflict of interests at best, or corruption at worst.

The Auckland Council has every right to be concerned.

Someone may be planning to personally profit from the dispute and de-unionisation of Ports of Auckland.

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The Green Party’s media statement on this issue sums matters up perfectly,

Auckland Mayor Len Brown must step into the ports dispute now that workers have been locked out, the Green Party says.

The Maritime Union says Ports of Auckland has illegally issued striking workers a lockout notice, a day after the parties were convinced by a judge to head back to mediation.

“The Ports of Auckland’s decision to lock out the union workers is in direct defiance of the settlement reached between Ports of Auckland and the Maritime Union in the Employment Court,” Greens industrial relations spokeswoman Denise Roche said.

This lockout notice is yet another example of the bad faith bargaining by the Ports of Auckland management.”” – Source

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The Employment Relations Act 2000 is quite specific in stating that an employer cannot replace striking workers,

” 97. Performance of duties of striking or locked out employees
  • (1) This section applies if there is a lockout or lawful strike.

    (2) An employer may employ or engage another person to perform the work of a striking or locked out employee only in accordance with subsection (3) or subsection (4).

    (3) An employer may employ another person to perform the work of a striking or locked out employee if the person—

    • (a) is already employed by the employer at the time the strike or lockout commences; and

    • (b) is not employed principally for the purpose of performing the work of a striking or locked out employee; and

    • (c) agrees to perform the work.

    (4) An employer may employ or engage another person to perform the work of a striking or locked out employee if—

    • (a) there are reasonable grounds for believing it is necessary for the work to be performed for reasons of safety or health; and

    • (b) the person is employed or engaged to perform the work only to the extent necessary for reasons of safety or health.

    (5) A person who performs the work of a striking or locked out employee in accordance with subsection (3) or subsection (4) must not perform that work for any longer than the duration of the strike or lockout.

    (6) An employer who fails to comply with this section is liable to a penalty imposed by the Authority under this Act in respect of each person who performs the work concerned.”

It would appear that by hiring new port workers, the POAL are clearly breaking the law. It remains to be seen if management can flout the law with impunity. If so, why shouldn’t Unions?

Perhaps  the previous Labour Government did not go far enough, when they enacted the Employment Relations Act to replace the odious and largely discredited Employment Contracts Act.

Perhaps it it time to remove the law preventing other Unions from supporting those who are on strike.

After all, the right to strike – to withdraw one’s labour –  is a fundamental human right. The West openly supported the Polish Solidarity Free Trade Union movement in the 1980s – especially the right to strike.

If employers such as AFFCO, POAL, et al, are prepared to lock-out workers in a methodical agenda to smash unionisation of their workers – then obviously the law is ineffectual.

When a new Labour-led government takes office, this blogger will be making representations on the following issues;

  • That the Employment Relations Act be strengthened,
  • That Unions be free to give industrial support to fellow striking Unions,
  • That representatives from the Labour Department and other Third Parties  be permitted to attend industrial negotiations, as impartial observers,
  • And that City Councils and other local bodies are given more direct control over Council Controlled Organisations CCOs) than they do at present

This will be a matter of urgency for a new incoming Labour-led Government. Union-busting cannot be allowed in this country.

Anyone in doubt as to POAL’s duplicity may wish to listen to this interview earlier today,

Radio NZ: Listen to more from Richard Pearson on Checkpoint

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Additional

Ports negotiator alleged to have sought workers

Other Blog Posts

Chris Trotter: Only People Power Can Save Our Ports

Tumeke: PoA u-turn over manufactured crisis

No Right Turn:  Psychopathic management in action

Socialist Aotearoa: There is Blood in the water

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Ports of Auckland Ltd – THAT magic 12% figure!

14 March 2012 4 comments

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Much has been made of Port of Auckland Ltd being required to make a 12% return to it’s shareholder and owner, the Auckland City Council.

As recently as last Sunday (11 March), Len Brown confirmed the figure (albeit in a roundabout way), in an interview with Paul Holmes,

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LEN  And by that, I mean that we are the 1.5 million Aucklanders, we own the shares, and as a consequence of that, I’m looking after their interests.  I want that port to be successful.  I certainly want a greater return on our investment-
 
PAUL Let’s talk about that shortly, but I wondered about your position because you have said and I quote you, ‘We deserve a port that’s competitive, a decent return for ratepayers and a settlement that is sustainable.’  That sounds like the port’s position, Mr Mayor.
 
LEN  No, it sounds like our position – our position, the council’s position and the position of any Aucklanders.  Look, my commitment during the campaign was not selling the ports; we will hold the port shares.  Secondly, we wanted the ports to be more commercial and present a much better return for ratepayers.

PAUL And that return, of course, the figure that you’ve come up with is you want an increase from 6.3% I think it is at the moment.

LEN  Yeah.
 
PAUL After tax.

LEN  12% over five years in terms of return on investment.
 
PAUL Where did you get the 12% from?  Pluck it out of the air?
 
LEN  No-

PAUL There’s not a port in Australasia, Mr Brown, making 12%.

LEN  So our view was, though, that the port was not performing as well as it was.  Now, you’ve heard Mr Pearson say it’s an aspirational target.  What we’re saying to the port is this is our view.  We believe as a consequence of the assessments that we’ve done within the  council-
 
PAUL Well, how firm are you on this?  Have you laid down the law on the 12%?

LEN  We have given it to them in our statement of corporate intent.  Right at the start of the year, I went down to the port, met all the workers and the employees and the company directors down there and said, ‘Right, this is what we’re expecting from the port.’  And we had an hour’s Q & A-
 
PAUL This is what we’re expecting.  Is this-?  I mean, were you laying the law about the return you want in five years – 12%?
 
LEN  We were laying down the law in terms of what we expected from the port in terms of its return and in terms of its performance generally.

PAUL Where did you get the 12%?

LEN  So, the 12% was an estimate, a view that certainly I’ve been working on for right through the last sort of 18 months, two years.  It was view that was discussed our own table with the officers, with our own council-
 
PAUL So it’s a guess?  It’s a good guess?

LEN  No, it’s an estimate.
 
PAUL (laughs)
 
LEN  This is what we think we should be aiming to achieve.  And so we went back to the company and said, ‘Okay, this where we think you should be.  What is your advice back to us?’  Their advice was, ‘Give us five years and we believe that we can receive that.’

PAUL Well, excuse me, look at this.  Okay, 12%, that’s your estimate – guesstimate.  Tauranga returns 6.8%, Lyttelton 8.6%, Sydney 6.7%, Melbourne 3.1%, Auckland 6% — 6.3% after tax.

LEN  So not just about return either-
 
PAUL Where’s the 12% being made anywhere?

LEN  It’s about competitiveness against other ports.  So we are losing share against Tauranga.  We are competing flat out against Brisbane, in particular, and Sydney.  It was our desire that we wanted the port to be much much stronger in terms of its-
 
PAUL Do you endorse what Mr Pearson was saying about he cannot believe the waste of resource at the Ports of Auckland?
 
LEN  Look, there’s a whole lots of things that we cannot believe about the performance of the Ports of Auckland, so it just was not about-

PAUL Can I just say to you again-?

LEN  a stronger return on investment.

Source: TVNZ Q+A

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Yet,  at a meeting of the CCO Strategy Review Subcommittee, held on 21 April last year, a motion was passed to the effect;

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PRESENT
Chairperson Mayor Len Brown, JP
Deputy Chairperson Deputy Mayor Penny Hulse
Councillors Cr Ann Hartley, JP
Mr Tony Kake
Cr Richard Northey, ONZM
Cr Sir John Walker, KNZM, CBE
Cr Penny Webster
ALSO PRESENT
Councillors Dr C Casey
C Fletcher
D Morrison
C Penrose
S Stewart  [until 11.25pm, part item 11]
W Walker

12  Shareholder Comments on the draft 2011-2014 Statements of Intent/Statement of
Corporate Intent of Substantive Council Controlled Organisations/Watercare Services
Limited

CCOS/2011/4
MOVED by Mayor Brown, seconded Cr Hulse:

b)

Auckland Council Investments Limited

ii) Replace the proposed shareholder comment on page 135 “Add a series of
performance measures/targets to measure port productivity and profitability.
This should include lifting the rate of return investment (from 6%-12% over
three years)” with
“Immediately following completion of the long-term strategy for POAL add to
ACIL’s statement of intent, a series of performance measures and stretch
targets to measure port productivity and profitability. The targets should
require a significant improvement in the performance of POAL, including the
rate of return on investment.”

CARRIED

Source: Council  Sub-Committee Minutes

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So it seems evident that Auckland City Council no longer demands an outrageously high rate of return from Ports of Auckland. The target now requires  “a significant improvement in the performance of POAL, including the
rate of return on investment” – which could be anything; 7%, 8%, 9%, etc.

I believe that there is evidence (more in a moment on that) that what we’re seeing here is Auckland City Council/Ports of Auckland in a war of competition with other local ports – Tauranga to be specific.  Since corporatisation of New Zealand ports,   there has been a steady drive to increasing profits; returns to shareholders; and “efficiency”.  This involves aggressively attracting new clients to use port facilities.

Considering that there is only a limited number of shipping coming to New Zealand at any given moment, ports can only increase business at the expense of other ports. In essence, they are “cannibalising” each other.

A New Zealand Institute of  Economic Research (NZIER) report entitled “Port Performance and Ownership
An assessment of the evidence Report to the Local Government  Forum 9 August 2010” makes the following observations,

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On the other hand, Maersk undoubtedly extracted significant discounts from Auckland to secure its business. Its standard business practice is to play off competing ports aggressively against one another in terms of price and the facilities they provide, such as fixed berth slots and equipment for loading and unloading. It cannot be criticised for its approach; it is operating in a very competitive market and needs to have as cost competitive a port service as it can find and negotiate. As Figure 8 shows, Port of Tauranga’s net profit after tax for continuing activities has been significantly better than Ports of Auckland’s since the Maersk decision in 2006.”

“…there is some evidence that Ports of Auckland, and possibly Lyttelton Port Company, have in recent times succumbed to local pressures to retain and grow the volume of trade through their port by agreeing to provide international shipping lines with levels of service at charges such that the services may not make a full economic return.”

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This seems to be born out by data, such as presented by the (NZIER),

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The graphs above show that despite having a higher a higher container volumes at Auckland than  Tauranga (1995 to 2009), Port of Auckland’s net profit after tax still dropped.

As NZIER stated,

It is extremely unlikely, therefore, that the commercial realities of the Maersk decision supported any change in the relative values of Tauranga and Auckland to the significant favour of Auckland. Indeed, the evidence suggests the impact was probably exactly opposite to this.”

With this in mind, the ongoing competition between NZ ports to attract business from shipping companies such as Maersk appears to be a self-defeating process; a race to the bottom.

In which case, POAL’s agenda for “greater productivity”  (ie; more profits) is now impacting on port worker’s incomes.  Driving down wages and casualising the workforce has the natural consequence of reducing the wages bill for the company.

This is what it’s all about; aggressive competition between ports.

And Maersk benefits.

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Other Blogsites Views

No Right Turn: Ports and transparency

Bowalley Road: Only People Power Can Save Our Ports

Bowalley Road: A Study In Mauve

Pundit: Solving the Ports of Auckland dispute

Related Issues

Bryan Gould: Our workers being squeezed by the bottom line

Acknowledgement

Cathy Casey, Auckland City Councillor

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