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Posts Tagged ‘Employment Relations Act 2000’

John Key’s track record on raising wages – 8. An End to Collective Agreements

11 November 2012 7 comments

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Continued from: John Key’s track record on raising wages – 7. Part 6A – stripped away

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8. An End to Collective Agreements

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National’s covert agenda to resurrect the Employment Contract’s Act involves the following,

  1. The Employment Relations Authority can declare in certain circumstances that collective bargaining has ended.
  2. A duty of good faith does not require the parties to conclude a collective agreement.
  3. Employers can opt out of multi-employer bargaining.
  4. Partial pay reductions in cases of partial strike action.
  5. Removing the 30-day rule that forces non-union members to take union terms and conditions.

Items 1, 2, and 3 have only one purpose; to ensure that an employer can walk away from the negotiating table; scrap any collective agreement; and re-hire workers on individual contracts.

It is solely designed to destroy unions once and for all.

Had Items 1, 2, and 3 been in force this year, POAL (Ports of Auckland Ltd) would have been able to abandon the bargaining table after a mock “negotiation”; locked out any worker on strike; and issued take-it-or-leave-it individual contracts.

The worker’s negotiating agent,  the Maritime Union, would have been dis-empowered and destroyed.

Only the current provisions of good-faith bargaining in the Employment Relations Act 2000 and the Employment Relations Authority were able to stop POAL from unilaterally walking away from the negotiating table. (On 27 March this year, the Employment Court issued a judgement severely admonishing POAL for their actions, and ordering them to return to negotiations.)

The same happened when Talleys locked out workers. Talleys was demanding that workers quit their Union and sign individual contracts.

See previous blogpost: If anyone wants to see the Working Class

See previous blogpost: Help Talley’s Affco Workers!

See previous blogpost: Immovable and Irresistable forces – combined!!

See previous blogpost: The Talleys Strikes Back

All this will change – and not fot the better –  if National proceeds with implementation of their draconian law-changes.

They will serve the purposes of business – whilst leaving employees totally vulnerable and at the mercy of their employers.

This is Third World banana republic stuff.

This will drive wages down, and will send more New Zealanders packing for Australia.

Item 4 is self-evident, and is designed to dissuade employees from strike action. Using financial pressure to control workers would be the inevitable outcome of this law-change.

Again, it would leave workers totally vulnerable to employer demands.

Item 5 – What better way to prevent workers from learning about the benefits of union-membership – than by denying workers the benefits of Union-won  conditions? It means that an employer can hire staff at lower pay, or sub-standard conditions.

Labour Minister Kate Wilkinson’s own cabinet paper confirmed that the 30 Day Rule  would permit  employers to offer lower wages to new workers than those on the collective agreement. What other reasonwould there be for such a radical  change in our labour laws?

With unemployment now at 7.3%, more than 175,000 people are now competing for fewer and fewer jobs. If National proceeds with it’s miserable labour “reforms” it will simply result in unemployed job-seekers willing to accept lower and lower pay, and reduced conditions. It will become a dog-eat-dog labour market.

This may satisfy free market fanatics, but it does nothing to fulfill Dear Leader’s pledges to raise wages, or create new jobs.

As usual, Key promises one thing whilst his Minister work quietly in the background to achieve the polar-opposite.

In polite society, this is called duplicity.

How does this raise wages, one may rightly ask?

Next chapter: 9. Conclusion

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John Key’s track record on raising wages – 2. The 90 Day Employment Trial Period

11 November 2012 5 comments

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Continued from: John Key’s track record on raising wages – 1. The “Hobbit Law”

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2. The 90 Day Employment Trial Period

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An amendment to the Employment Relations Act 2000, Section 67A, allows for 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.

See: Will the 90 Day trial period make a difference?

By April 2011, this was extended to all companies regardless of staff numbers.

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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Source

So aside from empowering employers and disempowering workers, what exactly was the point of enacting this piece of legislation?

And precisely how does this raise wages, as per Dear Leader’s promises?

Next Chapter: 3. Ports of Auckland Dispute

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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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Full Story

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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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Roosting chickens

25 September 2011 6 comments

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I think we all remember the ‘Hobbit‘ fiasco, last year. The cast of this little tragi-farce included Actor’s Equity; Peter Jackson; Warner Bros; and John Key and his guvmint.

It also included a gentleman by the name of Greg Ellis, who played a ‘bit part’, as leading a “break-a-way” group of actors (numbers unknown) and formed the so-called “New Zealand Actors’ Guild – Te Taurahere i Te Hunga Toi Whakaari“, in October 2010.

Mr Ellis formed the NZAG to oppose Actor’s Equity, who at the time were attempting to negotiate with SPADA (Screen Production and Development Association – Waka Papaho). The NZAG came out firmly in support of Peter Jackson’s views that actors and production workers were “independent contractors”, and not employees. Though, in an expression of  “generosity”, Mr Ellis’  “temporary” (operating since October,  2010) website did ask,

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“One of the big issues that has been at the heart of recent disputes has been the status of actors as employees on productions…

… Tell us about the up and down sides of being an independent contractor and let us know – do you want to remain self employed?”

Self-employed or employee?, October 26th, 2010

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As we have no way of knowing who is a member of NZAG – or for that matter how many members they have – it is difficult to determine what sort of response there was to that question, if any.  Considering that NZAG’s existence is predicated on keeping actors as independent contractors, and not as employees (as Actor’s Equity was wanting) – what would NZAG/Greg Ellis do if their membership opted for status as employees?

Though there must have been some form of response, as Mr Ellis later comments,

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“One of the things that irks us most is the CTU’s failure to acknowledge that almost all actors prefer to be self-employed contractors. “

The CTU trolls through the past again”, April 14th, 2011

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One wonders how Mr Ellis arrived at the conclusion that “almost all actors prefer to be self-employed contractors”?

How many members does this so-called “Guild” actually have? It can’t be that many, as they have registered themselves – not as a Union, but as a charity,

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“Just sent off an online application to become a registered charity.  That means that people can make donations to us and have them classed as charitable donations by the IRD.”

“Applying to become a charity”, January 30th, 2011

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I’m not even sure if this is legal?! It certainly begs the question as to how an organisation dedicated to the advancement of it’s own members can be classed as a charity?

It certainly puts paid to one of the posters on the NZAG’s blogsite, who believes that the NZAG is some kind of “union”,

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James says:
October 27, 2010 at 10:49 am

“Truth to the membership and real principles based on the strength of coming together are the base of every union.”

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But moving along.

The NZAG criticised Actor’s Equity for daring to want negotions with SPADA.  NZAG said,

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“The NZ Actors’ Guild believes that it is churlish and argumentative to call into question the whole casting process that has already benefited New Zealand performers and will continue to give countless opportunities to actors outside the speaking roles. The actors in the roles of stand-ins and doubles are also on generous contracts for extended periods of time and there will be the opportunity for a large number of performers to benefit from extra roles, giving many actors valuable experience and an ongoing income in uncertain times…

… So New Zealand actors will be rubbing shoulders with overseas counterparts but Kiwis are present in this Hollywood film in large numbers and this is to be celebrated.”

NZ Actors’ Guild seeks to celebrate the positive impacts on the lives of Kiwi actors, March 14th, 2011

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According to NZAG/Greg Ellis, Actor’s Equity were firmly cast as the “bad guys” in this affair. Actor’s Equity had no right to demand negotiations to improve the conditions of actors and other staff. After all, as NZAG claimed, “almost all actors prefer to be self-employed contractors”.

The government, led by our unfeasibly popular Prime Minister, John “The Baptist” Key, acted accordingly. They fulfilled their cameo-role as The Guvmint , and amended legislation that ensured that actors and other movie staff were independent contractors – not employees. At the stroke of a legislative pen, the rights of an entire class of New Zealand workers was taken away.

The Employment Relations Act 2000 was amended via the Employment Relations (Film Production Work) Amendment Bill,  introduced to Parliament on 28 October, last year,  under Urgency*,  as part of a deal between Warner Bros and Government ministers to keep ‘The Hobbit‘ film production in New Zealand. (Though, as was later discovered in an email from Peter Jackson, there was little likelihood of  the production actually moving overseas.)

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The Employment Relations (Film Production Work) Amendment Act made film industry workers independent contractors by default, avoiding the definition in current employment legislation of what constitutes an “employee”.

Just imagine, you are an employee on Friday, with four weeks annual leave; sick pay; the right to join a Union if you so wish; and job security.

Then you arrive at work on Monday and, by Government decree, you are now classed as an independent contractor. No more annual leave; no more sick pay; no more job security. And because you’re an independent contractor, the law forbids you the choice of belonging to a Union.

Yes, my fellow New Zealanders, that is precisely what happened.

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When the media enquired further, Gerry Brownlee’s office stated that,  “the Government was comfortable with its action and would not be commenting further“. Source.  Yeah, I’ll bet they didn’t want to comment further!

However, as the old saying goes, be careful what you wish for,

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Source

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“New Zealand Actors’ Guild secretary Greg Ellis said the changes could see local talent overlooked. “New Zealand may become merely a filming location and the creativity and innovation currently present in our creative sector could be lost.”

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Oh, good lord, the IRONY! Greg Ellis complaining about a law change that will impact on local actors’ working rights – when he himself led the charge for a breakaway “Actors  Guild” from Actor’s Equity – in support of Peter Jackson and Warner Bros!?!? And then the government amended employment laws to suit Warner Bros?!?!

The casualisation and erosion of actor’s rights in New Zealand started with National caving in to threats from certain quarters, in October last year, and Mr Ellis certainly played his part (albeit minor, perhaps) in undermining Actor’s Equity.

In fact, let me remind Mr Ellis about his comments last year;

“Actors’ Equity claims 600 members were reported to be unhappy about the casting of New Zealand roles in The Hobbit, but Actors’ Guild chairman Greg Ellis was pleased as punch.

“The NZ Actors’ Guild believes that it is churlish and argumentative to call into question the whole casting process that has already benefited New Zealand performers and will continue to give countless opportunities to actors outside the speaking roles. ” Source

Mr Ellis’s colleague in the breakaway “Guild/Union/Charity”, also seemed to be quite pleased back in March of this year, when we crowed,

“”I have a great contract and awesome working conditions and a performance fee that is almost double my ‘day job’ wage,” says guild member Gareth Ruck.

“I look at the hundreds of fellow actors and crew members I’m working with and think how bad it could have been if Equity had its way.”” Source

I wonder if Mr Ruck will still be as happy if this government pushes through with it’s Bill? And just how much better would it have been had Actor’s Equity “had its way”?

And I think Mr Ellis was being somewhat optimistic when he naively expressed this sentiment,

“I think that an actor’s destiny needs to be controlled by New Zealand actors who are aware of our industry. There’s no point having people outside the country deciding our destiny, especially not people like Helen Kelly who don’t understand how our industry works or the relations inside it.”Source

There is nothing quite so dangerous as a person with good intentions, but wholly misguided in his actions, and in attempting to help others  has played into the hands of interests that he does not fully understand. In fighting Actor’s Equity, Mr Ellis and his NZAG have been well and truly  ‘played‘  by government, Warner Bros, and Peter Jackson (who would tolerate no intrusion into his private movie-making empire).

Look out the window, Mr Ellis, Mr Ruck, et al – your chickens have come home to roost.

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* “Urgency” in Parliamentary terms  means that thre Government’s Bill does not go to a Select Committee for public discussion; the public has no say on the contents of the Bill; and Parliament has no oversight. It is “rammed” through, simply bcause the Government can do it – it has the numbers. It also means that the Bill can  contain horrendous mistakes (as has happened in the past), and the public is powerless if they disagree with the Bill, or any aspect of it.

This current government has passsed more laws through “Urgency” than any other in recent history.

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Further reading

NZ Actors’ Guild Seeks To Celebrate The Positive Impacts On The Lives Of Kiwi Actors

The Hobbit law – what does it mean for workers?

Helen Kelly (NZ Council of Trade Unions): The Hobbit Dispute

Sir Peter: Actors no threat to Hobbit

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