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

11 November 2012 8 comments

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Continued from:  John Key’s track record on raising wages – preface

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1. The “Hobbit Law”

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On 20 October 2010, Peter Jackson released this statement to the media,

“Next week Warners are coming down to New Zealand to make arrangements to move the production offshore. It appears we cannot make films in our own country even when substantial financing is available.”

See: Warner preparing to take Hobbit offshore – Sir Peter

It was the opening shot of a public war-of-words between Jackson and his camp, and Actor’s Equity.  An industrial dispute had been elevated to DefCon One, and things were about to ‘go nuclear‘.

Almost overnight, a mood of hysteria gripped the country; we were about to lose ‘Our Precious‘ movies to Eastern Europe, Mongolia, or Timbuktu.

Public panic reached levels unseen since the 1981 Springbok Tour, or the satanic child abuse-ritual stories of the early 199os. There were patriotic street marches (flaming torches were considered but rejected because of OSH concerns.) Union officials were harassed in public; vilified; and threatened with death. A well-known  actress – popular up till this point – considered leaving for Australia after receiving death threats, because of her pro-Union stance.

See: And everybody take a deep breath – please

It was the nastier side of New Zealand’s collective psyche which we’ve come  to be familiar with. We do ‘mob hysteria‘ very well.

John Key and National would have none of it, of course. Dear Leader acted with authoritarian style not seen outside ex-Soviet republics, African, and Middle East  dictatorships.

As the Dominion Post reported,

The Hobbit dispute was resolved after Warner Bros executives jetted into New Zealand for a meeting with Government ministers at Mr Key’s official Wellington residence, Premier House.

After two days of tense days of talks with Warner Bros bosses, who were chauffeured around Wellington in Crown limousines, the Government agreed to a raft of measures including a $20 million tax break to keep the two Hobbit movies in New Zealand.

An agreement to change New Zealand’s employment laws clinched the deal after studio bosses and Jackson threatened to move production off-shore over a stoush with the actors union. Labour lawswere were [subsequently amended].

See: PM’s ‘special’ movie studio meeting

The labour law that the Dompost piece referred to was the Employment Relations (Film Production Work) Amendment Bill which made film industry workers independent contractors by default – thereby changing the definition in employment legislation of what constitutes an “employee”.

See: The Hobbit law – what does it mean for workers?

Even if the nature of your employment mirrors that of an employee with a boss who determines your hours of on-site work; supplies all your tools and work materials; dictates your workplace requirements, including meal breaks – your employer can still treat you legally as a “contractor”.

A worker under these conditions has all the obligations of an employee – but none of the rights.  That same worker may be deemed a “self employed contractor” – but has none of the usual independence of a contractor.

A worker in this “limbo” has had all his/her security of employment; minimum wages;  holidays; and right to collective bargaining stripped away.

In effect, for the first time in our democracy, a government has legislated away a  workers right to choose. They no longer have any choice in the matter.

All done at the stroke of a pen. No consultation. It was all decided for you, whether you wanted it or not. Only a totalitarian, One Party, regime could match such dictatorial powers.

The “Hobbit Law” took precisely two days from First Reading to Royal Assent. An Olympic record in law-making.

See: Employment Relations (Film Production Work) Amendment Act 2010 – Legislative history

By 21 December 2010 – two months after Jackson had sent the entire nation into a spin with his first press release –  an email dated 18 October, to Economic Development Minister Gerry Brownlee, revealed a startling new picture,

There is no connection between the blacklist (and it’s eventual retraction) and the choice of production base for The Hobbit”.

“What Warners requires for The Hobbit is the certainty of a stable employment environment and the ability to conduct its business in such as way that it feels its $500 million investment is as secure as possible.”

See: Sir Peter: Actors no threat to Hobbit

Peter Jackson and John Key knew precisely how to pull this country’s strings and make workers and the public dance to their tune. They managed to con workers to demand losing their own rights as employees. Well played, Mr Jackson, Mr Key.

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

Next chaper:  2. The 90 Day Employment Trial Period

See also previous blogposts:Muppets, Hobbits, and Scab ‘Unions’, Roosting chickens

Additional

Tech Dirt: The Hobbit Took $120M From Kiwi Taxpayers – Maybe They Should Own The Rights (5 Dec 2012)

Fairfax Media: To save regular earth, kill Hobbit subsidies (6 Dec 2012)

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John Key’s track record on raising wages – preface

11 November 2012 19 comments

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Preface

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By now, I think most readers of this blog (and other sources of  political information) will recall certain statements made by Dear Leader over the last four years,

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

See: National policy – SPEECH: 2008: A Fresh Start for New Zealand

“One of National’s key goals, should we lead the next Government, will be to stem the flow of New Zealanders choosing to live and work overseas.  We want to make New Zealand an attractive place for our children and grandchildren to live – including those who are currently living in Australia, the UK, or elsewhere.

To stem that flow so we must ensure Kiwis can receive competitive after-tax wages in New Zealand.” – John Key, 6 September 2008

See: National policy – Speech: Environment Policy Launch

“I don’t want our talented young people leaving permanently for Australia, the US, Europe, or Asia, because they feel they have to go overseas to better themselves.” – John Key, 15 July 2009

See: Speech: Key – business breakfast

“Science and innovation are important. They’re one of the keys to growing our economy, raising wages, and providing the world-class public services that Kiwi families need.” – John Key, 12 March 2010

See: National policy – Boosting Science and Innovation

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

See: Statement to Parliament 2011

The driving goal of my Government is to build a more competitive and internationally-focused economy with less debt, more jobs and higher incomes.” – John Key, 21 December 2011

See: Parliament – Speech from the Throne

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

See: Key wants a high-wage NZ

Key has repeated the same pledge every year since 2008. It has become a mantra, “raise wages, raise wages, raise…”.

But words are easy. What has been Key’s actual track record? How does Dear Leader’s words reconcile with his actions? What have been the results?

The following chapters give an insight into the rhetoric and reality of the National Party and it’s leader, John Key.

1. The “Hobbit Law”

2. The 90 Day Employment Trial Period

3. Ports of Auckland Dispute

4. Rest Home Workers

5. The Minimum Wage

6. Youth Rates

7. Part 6A – stripped away

8. An End to Collective Agreements

9. Conclusion

10. A New Government’s Response

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Muppets, Hobbits, and Scab ‘Unions’

9 October 2012 8 comments

From a previous blogpost; Roosting chickens,

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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…

… 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.

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NZAG was little more than a scab-union. It’s creator, Greg Ellis, a relatively unknown “actor” may have had the best intentions in breaking away from Actor’s Equity, but he was nevertheless a pawn (a rather small pawn) in the game that the Big Boys were playing in this international industrial dispute.

Such is the role of the scab ‘Union’ – to play off worker-against-worker; to muddy the waters and cloud issues; and most importantly, to do the bidding of the Employer.

Ironically, Ellis’s naiveté came back to bite big chunks from his arse last September when he railed against one of the very issues that Actor’s Equity was campaigning on, when National announced,

Key players in the New Zealand film industry have raised concerns over new law changes, which they say could stifle local talent both in front and behind the camera.

On Friday the government announced that entertainment industry workers entering New Zealand to work for 14 days or less, would no longer have to be approved by a local film industry guild.

The move comes almost a year after the government secured the filming of Sir Peter’s Jackson’s The Hobbit through an urgent amendment to employment law, which prevented independent contractors from claiming entitlements as employees, as well as an agreement to increase the tax concession for big screen productions. ” – Dominion Post, 25 September 2011

Ellis’s bleating response,

Recently the NZAG was asked, along with various other industry guilds and unions to comment on further aspects of the new immigration regulations – this time relating to production companies applying to become accredited employers for the purposes of bringing in overseas performers.

The NZAG had several points to make, which included:

  • there needs to be more drilling down into the types of NZ employees that a business or production has. It is all very well to say a production has 25 kiwi employees but if they are all admin staff this is no use to us. At minimum a production, crew, and talent breakdown is necessary. It would be also desirable from the NZAG’s perspective to see whether the performers employed were principals, supporting cast, featured extra or extra. Again it is easy to say “we employed 200 kiwi actors on our film” but if all 200 were extras then this is not the best outcome.
  • etc,” – NZAG, 29 March 2012

That’s the trouble with scab unions – it can be damned embarressing when they forget their place and attempt to play the role of a real trade union or professional association.

Lobbying on behalf of your members is not the  raison d’etre for scab unions.

The place of a scab union is to know your place and remain there.

This is a lesson that Grant Lane, disaffected ex-Maritime Union member and organisor of the breakaway scab-union, ‘Portpro’ should learn, and learn quickly.

Like Greg Ellis,  Lane formed his breakaway “union” to create a puppet workers’-front more sympathetic to employers’ demands.

Lane insists that his “union” is independent, but this is patently untrue. Facts reveal otherwise,

  • POAL CEO, Tony Gibson, thanked Grant Lane for signing an employment agreement to cover “Portpro’s” thirtythree members,

The new deal is a partnership which rewards both sides – it delivers a productive and cost-effective outcome for the port, and well-paid jobs for PortPro members. Ports of Auckland wishes to thank PortPro for the positive and constructive way they approached bargaining, which has been completed efficiently and without disruption.” – Source

It’s unclear what sort of “bargaining” took place when, as CTU president Helen Kelly revealed,

PortPro simply agreed to all of the port’s bargaining points” – no weekend loading, no standard shifts. The contract  removes all security of employment.”

“Bargaining”? More like a good rodgering.

  • If  “Portpro” is as independent as Lane insists, why was POAL stevedoring manager Jonathan Hulme listed as a contact for maritime workers wanting to join the new “union”, or wanting more information about “negotiations”?

Since when does a senior management official become a contact for a trade union?

Such an arrangement  is unheard of in the annals of industrial relations. The only inference one can take is that “Portpro” is a stooge for  POAL (Ports of Auckland Ltd).

Otherwise, would POAL management volunteer to offer services to the Maritime Union? Yeah, right.

  • Port spokeswoman Dee Radhakrishnan said there had been no company involvement in setting up the new body, but it was legally obliged to respond to the group’s bargaining overtures.” – NZ Herald, 24 Sept 2012

Since “Portpro” has never had any collective agreement with POAL, it’s unclear as to how the port company was  “legally obliged” to “ respond to the group’s bargaining overtures“.

If I set up a new “union” called the “Funky Union for Corporate Kickbacks” and approach POAL – are they also “legally obliged” to “respond” to me? Cool!

At any rate, Port manager Hulme denied knowing “how to get in touch with Portpro” – despite  Port Spokeswoman Dee Radhakrishnan explaining that “it was so he could refer them to Mr Lane for information about the proposed bargaining”.

Bizarre.

POAL need to get their ‘cover story’ straight, it seems.

POAL and “Portpro” achieved a “negotiated agreement” just nine days after beginning negotiations. (See:  Ports gains quick collective agreement from new union)

Really? Nine days? What took them so long?

Surely the deal should’ve been signed, sealed, and delivered,  nine minutes after “Portpro” was officially registered.

After all, it’s fairly obvious to anyone with two firing neuron-cells that “Portpro” is a creature of Ports of Auckland Ltd. It is no more “independent” than my thumb is from my hand.

Such front-organisations are also illegal under the Employment Relations Act 2000. The Ministry of Business, Innovation, & Employment website states quite clearly,

What the Employment Relations Act requires

The Employment Relations Act 2000 requires a union to be an incorporated society, to be independent from employers, and to have a set of rules that comply with the requirements of the Employment Relations Act 2000

Independence from employers

A union must be independent of, and be constituted and operate at arms length, from any employer.

The Registrar of Unions may examine applications for registration as a union to determine whether or not an applicant is independent of any employer. If an applicant is not independent of any employer, the Registrar must decline to register it as a union.

Employer support for the formation and/or registration of a union will not, in itself, prevent registration. The Registrar of Unions will consider all relevant circumstances including the nature and purpose of employer support and any employer influence over the nature or scope of the union’s activities.” (Source)

New Zealanders should be wary of these kinds of  “independent unions”. They are not here for our benefit. They are here to drive down wages; reduce conditions; and increase profits for employers and shareholders.

Workers who organise such “unions” are prostituting themselves for corporate interests.

Workers who join them do so at the peril of all workers in this country.

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Previous blogposts

Lies, Boards, and Aucklandports (#Toru)

Ratbags, Rightwingers, and other assorted Rogues!

Roosting chickens

Sources

The temporary website for the NZ Actors’ Guild (since Oct 2010)

Law changes ‘could stifle screen talent’ (25 Sept 2011)

Port to hold talks with union of non strikers (24 Sept, 2012)

Rebel union signs deal with port – “a partnership which rewards both sides” (5 Oct 2012)

Ports gains quick collective agreement from new union (6 Oct 2012)

Maritime Union laughs off rival in Auckland port dispute (6 Oct 2012)

New port union could spell trouble – lawyer (6 Oct 2012)

References

Ministry of Business, Innovation, & Employment: Union registration and administration

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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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Tonysavedourport.com – Gone?

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It appears that the pro-POAL Facebook page, “TonySavedOurPort.com has been taken down.

The FB page was set up on or about 13 March,  by an anonymous author, and was a pro-Tony Gibson, pro-company mouthpiece.

The Admin was unapologetic  in his/her pro-company stance, and we can only wonder who was behind it.

It appears that the page may have been shut down as it was “swamped” with people expressing their free opinions that the workers were most definitely in the right – and POAL Board and management were being arses.

FB can be a very effective tool to highlight injustice and promote decent causes.

Not so good, though, for being a propaganda mouthpiece.

Solidarity to the Auckland port workers. You guys are fighting the good fight.

 

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*raises a glass to working-class heroes*

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Acknowledgement

Andrew Parker

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Weak Comments of the Week – 31 March

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This week, two comments by public figures vie for top placing as the Foot in Mouth, Weak Comment of the Week. Both are so unbelievably unconvincing that it speaks volumes about how these people view the public as fools…

Candidate #1: Tony Gibson, CEO of Ports of Auckland Ltd (POAL)

However, Ports of Auckland chief executive Tony Gibson said the back down was an attempt to reduce pressure on the supply chain, where the company was “acutely aware” that customers and businesses were hurting. ” – Source

POAL has listened to the wishes of the Court, as well the views of the Mayor and all other stakeholders”, Gibson said. ” – Ibid

Oh gosh, Tony, you think ?!

The port workers collective employment agreement  expired on 30 September 2011, and formal negotiations had been ongoing since 5 August 2011 – over half a year!

In that time, POAL announced an agenda to casualise the workforce ; contract out jobs;  workers have been forced to resort to strike action to secure their jobs and conditions; and the company  exacerbated the crisis with needless, expensive  lockouts.

Even the Employment Court found that the port workers had an “arguable case“.

In all that time, as weeks turned into months, and the intransigence of POAL Board and management worsened, importers and exporters were bleeding money,

Weekly trade worth around $27 million – and $90,000 to $100,000 a week for the port – will instead be rerouted through the ports of Tauranga and Napier from the end of the month.” – Source

Has it taken six months for Tony Gibson to recognise that ” customers and businesses were hurting “?

Nah, rubbish.

Gibson, Pearson, et al, have endured an embarressing bollicking from the Employment Court decision that their lockout was illegal; they had most likely broken the law (vis-a-viz the Employment Relations Act) in terms of bargaining in good faith; and that the Maritime Union had an “arguable case”.

Claiming to be suddenly concerned for the welfare of Auckland businesses and  that  ” the back down was an attempt to reduce pressure on the supply chain ” is disingenuous.

And just a little bit darkly cheeky.

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Candidate #2: Michelle Boag, ex National Party President

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This one is a ‘classic‘, and I think most folk will understand why I had a tough time trying to determine whether Gibson or Boag’s comments merited the most derision,

One of her advisers, anticipating that a confidential settlement might be reached, said it would be wise to include all the people who were aware of the dispute so that if any of them asked afterwards, Bronwyn would not be accused of breaching confidentiality. ”  – Source

The comment refers to Bronwyn Pullar’s letter to her insurance company Sovereign, seeking $14 million in compensation for a head accident she suffered ten years ago. (I make no judgement on this matter. Personal experience with other individuals has shown me that head injuries can create long-lasting mental and emotional effects.)

However, in Ms Pullar’s letter – which yet again was leaked to the media (TVNZ’s “Close Up” programme) – she listed twentyeight people  as members of her supposed “support/advisory team” including Prime Minister John Key, ex-Prime Minister  Jenny Shipley, National Party fundraiser Selwyn Cushing,  and ex-minister Wayne Mapp.

John Key has steadfastly denied any involvement in being  included in the list.

Wayne Mapp and Selwyn Cushing have admitted involvement.

Now, for Ms Boag to suddenly claim that ” it would be wise to include all the people who were aware of the dispute so that if any of them asked afterwards, Bronwyn would not be accused of breaching confidentiality ” – is simply bizarre. It makes no sense.  It is clutching at straws and offering the most feeble excuse imaginable to explain why Ms Pullar’s letter  required 28 high-powered New Zealanders to have their names included in her letter.

In short; bollicks.

Anyone with two inter-connected, firing, neurons would understand that listing 28 prominent individuals would be done for one reason only; to add weight to Ms Pullar’s claim against Sovereign Insurance. In effect, she’s saying, “Look here! I know all these High Ups! Don’t mess with me or they may do ‘XYZ’ to you! So gimme the cash and I’ll go away.”

That would tie in with allegations (unsubstantiated) that she requested two years’ worth of benefits from ACC “to move forward”.

So, no, Ms Boag. Your rational for why those 28 names were included in Ms Pullar’s letter is nonsense. More than that, it’s an insult to our intelligence.

If you’re going to bullshit us, can you at least make it convincing?

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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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__________

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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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* * *

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Acknowledgement

Helen Kelly

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