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.
Service and Food Workers Union Nga Ringa Tota