Employment Court Upholds Minimum Wage

A full bench of the Employment Court has decided by 2-1 that the statutory minimum pay rate for hourly workers cannot be undermined by allowing employers to do an “averaging” calculation over a weekly, fortnightly, monthly or seasonal pay period.

While the case they were hearing (Phillip William Dickson vs IDEA Services Limited) started off as a very simple one over whether disability workers doing sleepovers on their employer’s premises were “working” and should be entitled to the statutory minimum wage, it took a different turn when the employer began to argue that the minimum rate of $12.50/hour was only an average rate.

On 8 July the Court stated unequivocally that SFWU member Phillip Dickson was working when on a sleepover shift and should be entitled to the statutory minimum wage rather than the $34.00 a night he was receiving.

The Court, however, asked to hear further submissions on the Employer’s argument that the $34.00 a night might not be legally permissible if Phil Dickson was being paid a high enough rate for the rest of the fortnightly pay period to give him an average of $12.50 an hour.

At the subsequent hearing the Unions (SFWU, PSA and CTU) found themselves lined up against IHC, the National Residential Intellectual Disability employers, Business NZ and the Department of Labour, all of whom were arguing in favour of “averaging”.

It was particularly galling to see the Department of Labour, whose Labour Inspectorate is tasked with enforcing the Minimum Wages Act for tens of thousands of vulnerable workers, saying that it might be legal for an individual agreement rate of $3.00 an hour to be legal if the employer paid the worker a much higher rate for other hours, so that an “average” of $12.50 an hour was achieved.

It is difficult enough now for workers to estimate their entitlements and prove they are being exploited without averaging complications being brought into it.

The DoL and employer argument could also lead to workers being paid $3.00 an hour for their sick leave if they happened to be sick on a day that they normally were paid $3.00 an hour, or to be paid $4.50 an hour if a public holiday occurred on that day and they were required to work.

The Court, in reflecting on the original Minimum Wages Act 1945, said that the purpose of the legislation was to ensure that “workers received a minimum rate of wages for every part of their work.” It went on to note that “by this means it countered exploitation of vulnerable workers, many of whom were employed on a casual or daily basis.”

More significantly the Court noted that these objectives had become even more important because of the greater incidence of casual and part time work and receiving the minimum rate of pay for every part of your work was of even greater significance than it had been previously.

This is a strong stand by the Employment Court. While the argument over sleepovers and the minimum wage will not finish here, over 10,000 community support workers in the disability sector now know that their claim for proper recognition and payment has taken another step forward.

Low Paid Standing Up Against Freeze

Nearly 10,000 low paid workers rallied in 27 centres throughout the country on Friday to protest over the Government’s freeze on pay rates in the state and state-funded sectors of the economy.

While the numbers and enthusiasm for action in big centres like Auckland, Wellington and Christchurch were predictable, the turnouts and coverage in the smaller centres like Ashburton, Masterton, Thames and Whakatane were impressive.

In Hawera nearly 100 workers were lucky to catch Minister of Labour Kate Wilkinson, who tried to talk to them about why they should freeze their wage rates. She didn’t have much luck.

I think that the thing that infuriates low paid workers about this “it’s time for everyone to tighten their belts” speech is that it is so shallow and unbelievable.

When workers see cabinet ministers on $250,000 a year with their snouts in the trough for more money to cover them living in their own homes, overseas trips with partners, charging for their house cleaning and payment for holidays they just say “stuff you”.

Last Friday’s rallies have given more confidence to the groups such as disability support workers, hospital workers, school support staff and others who went on strike or stopped work. It has also give confidence to many private sector workers, such as the Southland Times workers, who now know that they are not alone in striking to break the wage freeze.

While Labour had its winter of discontent from employers during the introduction of the Employment Relations Act in 2000 I think that it is going to be a long hot summer for the National Party and its allies as the breadth of workers standing in line to break the wage freeze widens.

School Cleaners Win $14.62 an hour

Even though the Government funded schools in July to bring the rates of all school cleaners up to $14.62 an hour, it took until this week for the cleaners at Hutt Valley High School to get the money in their pockets.

The reason for the delay is that many of the cleaners are employed by contracting companies who seem to have more interest in keeping the cleaning pay rates low rather than paying them a reasonable rate of pay.

The SFWU entered into an agreement with the cleaning companies last year called ‘The Principles for a Sustainable Property Services Industry’.

This Agreement committed the companies to a new approach that saw both the union and the companies work with the funders to improve the wages and working conditions of cleaners.

One of the first tests of this new approach was this year when the Government paid extra funding to the schools to lift cleaners’ wages.

Instead of welcoming this the cleaning companies said that the funding was not sufficient and would only guarantee to increase the cleaning wage rates by 25 cents an hour rather than the $2.07 an hour, which was the basis of the funding.

The approach of the cleaning companies has meant the Union has been forced to battled school by school to get the contractors to pay up.

Now that Hutt Valley High cleaners have got their money we have moved on to others.

Aged Care in the Headlines Again

The Herald on Sunday has reported another serious incident in an Aged Care residential facility.

This time a caregiver in a home in Blenheim was sacked for allegedly verbally and physically assaulting an elderly resident.

NZ Aged Care Association (previously Healthcare Providers NZ) Chief Executive Martin Taylor gave a soft soap to the incident by saying that “the world isn’t a perfect place” and that given the number of caregivers in New Zealand “if only one out of a thousand is bad, that’s only 35 per year”.

Martin Taylor told the Herald on Sunday that he would like a register of rest home workers with a history of abusing residents to be established to help prevent further incidents.

While the SFWU is not opposed to setting up a register of this sort, the quality of care in the Aged Care sector is not going to be improved until there is a mandatory minimum qualification for all caregivers, for minimum staff levels to be introduced and for the pitiful wages paid to caregivers to be radically improved.

To think that all of the problems are going to be solved through outing 35 “bad apples” is putting your head in the sand.

The number of older people needing residential, dementia or hospital care in this country is going to increase rapidly over the next 20 years and unless something is done now there will be more incidents such as this one.

Time for Action on Aged Care

The furore around the action by Mid Central District Health Board closing down a local aged care residential facility because of the published photos of a resident being tied to a bed is another in a long list of “incidents” that have occurred in this sector.

However, what is noticeable about the level of the debate is that it all centres around the “rotten apple” rather than what is happening in the aged care sector generally.

The Minister of Health applauds the DHB for acting quickly, the DHB says that they will act decisively when incidents like this are reported, but the debate is never about what we can do about the lack of any mandatory standards, such as staffing levels and minimum qualifications, in aged care facilities.

The SFWU and NZNO spent six years between 2002 and 2008 working in groups trying to get these mandatory standards and higher pay rates for caregivers in aged care residential facilities.

We participated in forums, working groups, action groups and summits, as well as appearing before a number of Select Committee inquiries without any noticeable change in the situation.

The nearest we got to something happening was when the last Labour Minister of Health David Cunliffe set up an action group with short reporting time frames and there seemed a willingness to get something done. This was scrapped by the incoming Minister of Health.

There is a qualification framework in place, there have been proposals developed over minimum staffing levels and we know the wage rates that are paid to unregulated caregivers in DHBs that should be paid to those in residential aged care.

Rather than waiting for the next incident to occur, we just need to bite the bullet over the funding needed and for the DHBs to make these conditions mandatory for the safety of older people and the peace of mind of their families who are never sure whether their mum or dad is going to be the next front page story.

Why are we having a Referendum?

The results of a newly-published UMR poll make you wonder why we are having a referendum at the next election about our parliamentary election system MMP.

The poll showed that 60% of the respondents don’t want to spend $20 million on a poll and that MMP is still the favoured voting system.

MMP, which came into effect in 1996 after NZers rejected the previous winner-take-all voting system, rated 48%, First-Past-The-Post rated 29%, Single Transferrable Voting rated 20% and Supplementary Member rated a dismal 9%.

What is interesting about this poll is that those business people who hanker after the 1980s and early 1990s, when Governments flogged off NZ assets to them and their mates, are not going to have their dreams realised.

Their leader and ex-Telecom chair Peter Shirtcliffe has been backing the Supplementary option and dumping on both MMP and FPP on the basis of SM being a more moderate option between two extremes.

Although this was a cunning ploy to avoid a fight between MMP and FPP, which he thought he would lose for the second time, it has not worked with the public who obviously do not rate SM at all.

The Supplementary Member option is just FPP in drag anyway (you top of some list seats for those parties who get electorate seats). It will be interesting to see, following this poll, whether the business support for SM dies away completely and the tired old nag (First Past the Post) gallops back on to the paddock.

Catching up with the Ockers

In the latest NZ Listener there is an article entitled Catch them if we can about the Government’s commitment to catch up with Australia by 2025.

During the 2008 election campaign John Key focussed mainly on wage rates and said that workers were going across the Tasman to get better wage rates in Australia.

Unfortunately, while the Listener article has the photos and comments from the brains trust, including Don Brash, on how “we” catch up, there is a deliberate move away from the wages gap and how to do something about this into the lower tax and privatisation territory that we have been down before.

Cleaners in Australia, for instance, in their recently negotiated collective agreements, have now moved on to a pay rate of $20.00 an hour.

If cleaners in New Zealand are to catch up with that rate by 2025 then we would need to get about 3.5-4.0% increase every year and we will only catch the Aussie cleaners if their pay rates are frozen for the next 15 years (hardly likely).

While it is comforting to know that Finance Minister Bill English is charging Ministerial Services $20.00 an hour for his house cleaner in Wellington (not Dipton), on the other hand he is imposing a wage freeze on the state sector, which has a direct effect on hospital cleaners, school cleaners and those cleaning government departments.

It is these actions that show ordinary New Zealand workers that the various taskforces that have been set up to consider the trans-Tasman gap is not about making their lives better, but how to make the lives better for those already doing very well.

Seabed for Shore

One of the great tragic mistakes of the last Labour Government was the Foreshore and Seabed Act.

It was a panic measure in the face of the Don Brash Treaty-basing and it was the biggest factor in undermining support from Labour’s traditional strong Maori base. This was acknowledged recently by Labour Leader Phil Goff, but it does need to be continually reinforced.

The SFWU joined the march to Parliament and appeared before the Parliamentary Select Committee to voice our opposition to the Bill and despite some of the deals made under the law by a couple of iwi, we don’t have any regrets about our stand.

We opposed it at the time largely because of the process surrounding it. For any government to legislate to take away any group’s right to have their case heard in a New Zealand court is serious. When that group is one that you have signed a treaty with is even more serious.

It was the process, rather than the substance, that was the major issue. The success of customary title claims internationally was mixed and was not certain in this case, but once the Government struck out the right for Maori to get a decision from the Courts, it escalated the feeling around the substance of the issue.

At the time the SFWU told the Select Committee that they should follow the Waitangi Tribunal’s recommendation for the Government to have a “longer conversation” with Maori about the issue, a position I still think is the correct one.

It is interesting that Don Brash is now saying that National got it wrong in not supporting the right of Maori to take their case through the courts, although he has no regrets about his “Iwi – Kiwi” billboards and his one-law-for-all speeches at the time.

It is this rank opportunism that has bedevilled the development of productive race relations and I agree with Shane Jones who said in this morning’s DominionPost that the country “is much poorer for what Dr Brash did.”

Standing Up for School Cleaners

All of New Zealand’s state and integrated primary and secondary schools received government funding from 1 July this year to bring their cleaners up to a minimum rate of $14.62/hour.

While all the directly-employed cleaners received a well-earned pay increase from 1 July, those cleaners employed by contractors stayed on their miserable rate of $12.55 an hour – 5 cents an hour above the minimum wage.

Since then the Union has been chasing the schools and the contractors to pay up. Most schools said they would pay over the tagged money but the nearly all the contractors said they didn’t want it. They said it would create problems for them with cleaners who cleaned schools on $14.62/hour and commercial buildings on $12.55/hour.

After four months of going around in circles we have said “enough!”

We told HuttValleyHigh School and WellingtonCollege to either get the contractor to pay up or we would start “public awareness raising” by hundreds of cleaners outside their gates.

Amazingly, the contractor at these two schools suddenly decided that they would pay the $14.62/hour rate.

Isn’t it a sad state of affairs that some of the lowest paid workers in New Zealand have to make threats to get money that is owed to them.

Give Kate a Break!

National Party Cabinet Minister Kate Wilkinson has introduced legislation to kill off statutory minimum rest breaks for workers.

She says that she wants to “give employers and employees greater opportunity to develop breaks at the time best suited to their individual requirements”.

While I was reflecting today on this new found freedom I had a visit from union member Anuradha Lal, who up until late last year was working at a local Indian restaurant.

Like many of the cases we come across in ethnic restaurants she was working on average 60 hours a week and during some days she worked 11 hours with only a half-hour break for lunch.

She has asked her employer, who also worked in the restaurant, about 10 minute rest breaks, but he said the restaurant was too busy and it did not suit his business.

Anuradha was excited when the rest break legislation came into effect last year because her employer was forced to arrange the breaks on a roster.

Kate Wilkinson’s brave new world of employer and employee sitting down and determining work breaks that are best suited to their individual requirements is so far away from this reality that sometimes I wonder what planet she is on.