Archive for January, 2011

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.


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Employers Stake out 2011 Agenda

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.

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