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I was in the Employment Relations Authority today listening to a case taken by a very large private home support company against the local District Health Board trying to get an injunction against the Board to stop them ousting the company from providing home support in favour of two other not-for-profit providers.

I was very interested when the company’s lawyers said the main reason they were seeking an injunction was to safeguard their workforce that didn’t have the resources to stand up for themselves. They were arguing that Part 6A of the Employment Relations Act, which was introduced by the Labour Government in 2006 and designed to protect the security of employment of “vulnerable” workers should apply to these workers.

I thought this was a noble position given that home support workers get paid close to the minimum wage, have very insecure employment arrangements and can have their hours of work reduced if the person they are supporting goes into hospital or dies. I was pleased that a large private home support company should be standing by their workforce in such an upfront and determined way.

However, the more I listened to the case the more I became disillusioned with the motives of the home support company.

The District Health Board said that they wanted a smooth transition of the workforce between the private company and the two successful tenderers but that the private company had continually frustrated that by not providing the names and contact details of the workers nor the people they were supporting so that they could ensure that everyone kept their job and the same clients.

The two successful companies said they had offered to take on all of the workers on their existing terms of employment (including service entitlements) and do everything else that was required under Part 6A of the Employment Relations Act but they couldn’t get the cooperation of the outgoing company to supply the names nor hand over the money they were holding for the workers’ annual leave entitlements in order to pay them when they went on leave.

The workers were represented by their union and their very able lawyer, who reminded the Authority that the workers’ rights were getting lost in a commercial battle between one unsuccessful home support provider and the two successful ones. He challenged the unsuccessful provider to hand over the workers’ money. They refused saying there was no legal obligation to do so and why should they give money to a competitor provider.

Part 6A is appreciated in the cleaning sector as a legal instrument that is designed to safeguard the security of employment of a very vulnerable group of workers. The major companies have a code of conduct where they facilitate the transfer of both the workforce and the accumulated annual leave payments in the case of contract loss. They know that one day they may be the successful tenderer while another day they may be the unsuccessful tenderer.

It is only the ratbags of the industry who try to frustrate the objectives of the Act for their own short-term financial advantage. While they may say they are doing this on behalf of their workforce, their actions undermine these worker protections and in doing so they become the enemies of the industry workforce.

It is time that the home support sector developed their own code of conduct and those who refuse to abide by it should be the target of a concerted drive by both the sector organisation and the unions to drive them out.

John Ryall

National Secretary

Service and Food Workers Union Nga Ringa Tota

Addressing Low Pay

Labour leader Phil Goff announced today that if a Labour-led Government is elected in November then the minimum wage will move from $13.00 an hour to $15.00 an hour by 26 November 2012.

This is an important for Labour in standing on the side of low paid workers who are struggling to survive a tsunami of economic bad news in the form of food price increases, petrol price increases, tax increases and increases in central and local government charges at a time in which wages are not moving at all.

This also creates a coalition of four parties (Greens, Maori Party, Mana Party and Labour) who have policies targeted at an immediate increase to a $15.00 an hour minimum wage and, depending on the votes they can muster in November, the prospects of real relief for workers at the bottom of the pecking order.

However, while the $15.00 an hour minimum wage is an important move it does not provide a realistic path to solving the problem of low pay and income inequality in New Zealand, which is currently the 26th worst performer out of 33 OECD countries.

Since 1991 the average New Zealand workplace has become one in which workers are given no say on the level of their wages and working conditions apart from the minimum rates and conditions set down by parliament. The minimum wage, annual holidays, the payment for public holidays and parental leave are all set by the law and as more and more workers have no ability to negotiate these conditions, the more governments are forced to do it for them. It is not sustainable for the Government to do all the heavy lifting in this area. The effort must be owned by the workers themselves, organised collectively in their own workplace and industry organisations.

While only 9% of workers in the private sector have the ability to participate in their workplace, surveys have constantly shown that three times this number would like to have a say on their working conditions if there was some legal mechanism for this to take place. The Employment Relations Act, with its once-over-lightly approach, has not done this.

It is an area where real change needs to take place. Rather than the “willing buyer, willing seller” basis of current employment law we need to change to a rights-based legal framework where the participation of workers in negotiating the employment norms for their industries is set in law with an independent arbitrator who is able to listen to the arguments and eventually set these norms for all employers who want to set up shop in the sector.

This will get rid of the ridiculous situation that occurred in the 2004-07 period where private sector employers had massive shortages of labour but didn’t raise wage rates to attract workers because they were too scared of being outcompeted by other employers in the same market who didn’t. We need a mechanism that responds to these situations and sets a minimum set of employment norms that apply to all employers, not just some employers, in particular industries or markets.

If a specific employer doesn’t want to be bound by these arbitrated industry norms, that employer can negotiate their own collective employment agreement with the industry union on terms that are different, but better, than the industry norms.

It is time for a new deal for New Zealand workers. It is time for greater involvement of New Zealand workers in setting employment conditions. It is time to recognise that workers don’t just want to be reliant on the Government setting new minimum wage rates and employment conditions. Let’s do it now!

The Court of Appeal has finally clarified the rights of community support workers who are required to sleep on their employers’ premises to be on-call for those people with disabilities or mental health issues whom they are supporting.

Cases were filed in the Employment Relations Authority by both the SFWU and PSA in 2007 to remedy the underpayments of workers employed by disability providers IDEA Services and Spectrum Trust.

The case that appeared first was that of a SFWU member Phil Dickson, who was working over 200 hours a fortnight for IDEA Services but only being paid an ordinary rate for 77 of those hours. The other hours were paid at the rate of $3.77 per hour.

Despite the submissions of IDEA Services, the representatives of Intellectual Disability Providers and the Department of Labour that this practice was quite legal, the Employment Court ruled in 2009 that “sleeping over” on the employer’s premises was “work” and Phil Dickson should be paid a minimum of $12.75 an hour for each hour worked.

IDEA Services appealed this decision to the Court of Appeal and were joined by the Government, in the form of the Attorney-General. IDEA Services argued that “sleeping over” was not work because it did not contain any “mental or physical exhaustion” and collaborated with the Attorney-General in a submission that even if sleeping over was work that Phil’s payment of $18.00 an hour for some of his work could be overset against $3.77 an hour for other parts of his work to give him a lawful “average” of at least $12.75 an hour.

The Court of Appeal judges have unanimously rejected both these arguments.

In rejecting the “mental and physical exertion” argument they point out that “few workers are required to physically or mentally exert themselves at every moment of their work day” and point to meat workers during a stock shortage, fruit pickers during inclement weather or shop assistants when there are no customers often experiencing long periods when no such exertion is required.

In regard to the “averaging” argument the Court noted the union lawyer’s comment that “no-one had ever heard of the averaging theory until it was created for this case, and most unions, workers and employers consider it to be bizarre”.

The indication from the Court of Appeal is that they considered that this argument had only been dreamed up to avoid what was an obvious conclusion from the time this case was filed in 2007.

The conclusion was that community support workers provide a fantastic service for people with disabilities and mental health issues, that they have been unrecognised and underpaid for years and it is only now after four years of litigation that they are being taken seriously.

There are 5000 cases filed by the SFWU and PSA in the Employment Relations Authority waiting for the Court of Appeal decision. We hope that the litigation can stop here and the Government commence discussions with the unions and sector employers to sort the matter out once and for all and pay the workers what they deserve.

The Service and Food Workers Union mourns the loss of Sandra Moran, a great friend and legal adviser, who passed away today.

Sandra was associated with the Service and Food Workers Union and one of its predecessors, the Wellington Hotel and Hospital Workers Union, since the early 1980s.

Sandra was not a radical unionist nor politically very left-wing, and when you looked at her dressed up to the nines you would think that she had more in common with the big business types than low-paid workers. However, beneath that soft exterior there was an undying hatred of injustice and the battle of the “small person” against the increasingly powerful forces in New Zealand that are hell-bent on steamrollering them underfoot in their quest for greater power, control and wealth.

When public hospital cleaners, orderlies and food service workers were becoming better organised in the 1980s Sandra won a couple of cases that reinforced their right to “full pay” when they were sick on weekends, public holidays and overtime periods. As with all legal victories for low-paid workers, there were comments that this victory would bring the public hospital system to its knees. It did not do this, and in 2003 was incorporated into the Holidays Act for all New Zealand workers as “relevant daily pay”.

In the early 1990s, when the unionised workforce suffered the single most vicious attack in its history, Sandra led the union legal battle to restore basic worker rights to representation in the workplace and to stop some of the more extreme employer strategies to slash employment conditions.

In SFWU v South Pacific Hotel Corporation the Employment Court ruled that workers had the right to have their union representative to discuss union matters at their work station, not in an employer-designated space away from their work station. Following Sandra’s withering cross-examination of the employer’s Human Resources Manager the Court fined him personally $10,000 for his actions in preventing union access to Wellington’s James Cook Hotel. His description under cross-examination of the union as “an interfering mother-in-law” brought home to the Court his absolute disdain for the union and the rights of union members in his employment.

In Witehira vs Presbyterian Support Northern Sandra was again at her best to stop a new employer strategy to slash employment conditions for support workers in their aged care facilities.

The PSS strategy, cynically called a “partial lockout”, was to cut out the workers’ weekend rates and allowances but force them to come to work. The Employment Court had earlier affirmed this legal strategy in Paul vs IHC, but this did not deter Sandra.

Sandra successfully convinced the Employment Court that the lockout was illegal and its requirement for locked out workers to keep on working under their reduced conditions a form of serfdom.

These two victories were not just important for the workers at the James Cook Hotel and Presbyterian Support Northern but encouraged unionised workers to challenge, both industrially and legally, the all-out offensive on conditions that they had built up in the previous 100 years.

The Service and Food Workers Union, through these and other cases, built a strong relationship with Sandra and Oakley Moran. While Sandra has not been required recently to front for us in the courts, she has always been behind the scenes offering support for the work that we do.

Occasionally she returned to the Employment Court, such as a case a couple of years ago (Scott vs IDEA Services Ltd), when she defended a SFWU member dismissed for allegedly assaulting intellectually disabled people in his care. In this case IDEA Services was trying to overturn an Employment Relations Authority decision that had declared the worker to be unjustifiably dismissed and awarded him substantial compensation.

Sandra’s cross-examination of the first two witnesses for IDEA Services (the manager and a clinical psychologist) was so effective that IDEA Services asked the Court for permission to withdraw their case. Sandra asked the Court to refuse permission so that the witnesses for the worker could be called and he could respond to this “baseless assault on his integrity” that had been shown by the two IDEA witnesses.

While the SFWU member settled his case with a massive increase in his compensation payment, it was the injustice against Mr Scott, one of Sandra’s “little people”, being accused and convicted in a Kangaroo Court that got up her nose.

Sandra was educated in the Catholic schooling system and we had many conversations about the social justice values that were shown in students that came through this system.

While there are many people in the history of our union who have played a part in the development and protection of worker rights, Sandra Moran stands proudly alongside them and will constantly live in our memory.

The recent comments from Auckland business spokesperson Cameron Brewer, followed within days by similar statements from the Hospitality Association and Retailers Association, give us some inkling of the 2011 general election agenda for some business leaders.

Their calls were for the Government to further erode workers’ rights to payment of time-and-a-half for working on public holidays, but Cameron Brewer went further than this and suggested that the Government should get rid of the Holidays Act completely.

The Government did amend the Holidays Act in 2010 to allow employers to get workers to trade off their fourth weeks annual leave for cash and to allow public holiday observance to be shifted to another day, but this obviously did not go as far as many employers wanted and they are now back for bigger clawbacks from a second-term National Government.

Twenty years ago, when we still had baseline collective agreements that set out mandatory minimum conditions for all workers in most industries (referred to as National Awards), minimum code legislation such as the Holidays Act and the Minimum Wage Act were not very important. However, with the destruction of National Awards, the introduction of the Employment Contracts Act and the movement to a so-called “willing-buyer willing-seller” arrangement in the workplace, the only core things that workers were guaranteed were three weeks annual leave and a minimum wage rate.

All the other conditions, such as maximum hours of work, tea and lunch breaks, overtime rates, night and weekend/public holiday penal rates, sick leave, bereavement leave, jury service leave, long service leave, redundancy compensation payments, shift leave and the variety of allowances that occurred in the National Awards were all burnt on the altar of “freedom to contract”. If you didn’t like the new contract then you could find a job somewhere else and the employer would find someone who was willing to accept the new terms.

Even the then-National Government was so embarrassed about the extent that employment conditions could be reduced that they introduced a “special leave” provision into the Holidays Act to allow workers a minimum 5 days a year (after six months service) for sick, domestic and bereavement leave purposes. The Employment Court also chipped in when they ruled that the observance of public holidays could not simply be taken off workers by their employer forcing them to work. If they were required to work on a public holiday under their employment contract they must be given another day in lieu to observe the public holiday.

Because of the importance of the Holidays Act in providing minimum conditions to hundreds of thousands of Kiwi workers it has been a focus of legislative amendment by both Labour and National.

Labour initially thought that their much-heralded Employment Relations Act 2000 would take the focus off the Holidays Act and allow holiday provisions to the bulk of the NZ workforce to be negotiated in large collective employment agreements. However, the ERA was so weak that it failed to do this and Holidays Act amendments assumed new significance.

In 2003 the Labour Government amended the Holidays Act to introduce time-and-a-half payment for working on public holidays, increased the level of sick leave and bereavement leave, introduced “relevant daily pay” for alternative holidays, sick leave and bereavement leave and eventually allowed the minimum annual leave to be increased from three to four weeks from 1 April 2007.

The predictable business agenda is now being led by those sectors that have been least affected by collective bargaining and whose workforce is most dependent on the Holidays Act.

Their leadership is short-sighted, seeing their economic salvation being in lower wage rates, more casualisation and reduced employer obligation while bemoaning the fact that more and more of the New Zealand workforce is moving to Australia and that New Zealanders are not spending enough to maintain employer profitablity.

It is time that political parties of the centre-left set out a vision that allows the hundreds of thousands of New Zealand workers, who currently watch the battle over their minimum conditions from the sidelines, to be given the right to collectively negotiate these conditions across the industry in which they work and like the politician wage-setting process to have a fall-back umpire who, having heard both worker and employer arguments, can make a mandatory decision on what will apply.

Only then will the steam be taken out of calls for Holidays Act amendment and the real arguments will be around what is currently sustainable in the retail, hospitality and other sectors for the good of both employers and workers.

OCS in the Gun Again

Trans-national cleaning company OCS is in trouble again with the SFWU, its client and the Courts over a messy attempt at Massey University to slash the hours of 60 cleaning staff.

Barely three months ago several public hospitals were threatening to terminate OCS contracts after the company engaged in Russian roulette with the union and the District Health Boards about whether they would pay a 2% pay increase already agreed to by the 20 District Health Boards and the other three major sector contractors.

On this occasion OCS won a tender to clean the three Massey University campuses from rival companies Spotless and Total Property Services.

They complied with Part 6A of the Employment Relations Act and transferred over the 60 mostly full-time cleaners only to turn around and announce that they wanted to introduce a new form of innovative team cleaning that meant they could only guarantee the cleaners 25 hours per week during term time and no hours during the 21 weeks of university holidays.

When the cleaners rejected this proposal OCS told them they had 10 days to accept a position on these new hours or their employment would be terminated without compensation.

OCS boasts about the strong connections with its UK parent company and the 40 countries in which the OCS Group delivers services “in accordance with the leading international standards, best practices and innovations”.

The union was scratching its head wondering how reducing its cleaners’ annual income by over 50% was either innovative or up with the leading international standards that OCS was so proud of. It sounded to us like good old exploitation of its workforce.

The Employment Court was also left puzzled when it was told by OCS in evidence that it was only after becoming the successful tenderer that it considered what staff resources were going to be needed to do the job. In a judgement restraining OCS from sacking the cleaners, the Court noted that given about 80% of cleaning costs were in the labour resource, it was a strange commercial process.

While the union now has 10 days to negotiate with OCS about redundancy entitlements, it is time for large international companies such as OCS to decide whether they want to adopt a “high-road” approach to their business or one that is always looking to cut labour costs back to the lowest common denominator.

I hope that for the sake of its cleaning workforce that it chooses the former rather than the latter.

Back to the ’90s

I didn’t know whether to laugh or cry this morning when I read the news about the release of a Government report on “welfare dependency” and the measures the Government should be taking to cut the escalating cost of benefits, including shifting the cost of unemployment support, sickness benefits and other social support on to individual New Zealanders through insurance payments (I thought that was what we paid taxes for).

It is almost a repeat of the early 1990s as the Government creates a so-called “crisis” in order to take radical measures to cut welfare entitlements in order to force beneficiaries into work.

As we found out in the 1990s the real agenda was to cut wage rates through setting up more competition for jobs between those in work and those out of work, and just as in the 1990s the attacks on beneficiaries went hand-in-hand with similar attacks on the rights of those lucky enough to have a job.

The Government report on benefits comes almost a month after John Key announced that the Government would be introducing measures to extend the 90-day fire-at-will law to all New Zealand workers, to make it easier for employers not to have to follow a fair process when dismissing workers and to allow employers to prevent workers having access to their union representatives at work.

The massive cuts in income for the poorest New Zealand families in the early 1990s saw a massive growth in food banks and a Government-driven recession.

If these measures ever see the light of day we are heading down the same track again.

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