Shooting the messenger
Anew turf war is about to erupt between business groups, workers, and the Government. That’s going to make it interesting when they’re already in a stoush over employment law changes. But the strange thing is that none of those groups started this latest battle. They probably didn’t even see it coming. Instead, it’s journalist John Campbell who kept digging, and started something that might change the lives of a large group of workers.
On RNZ, Campbell’s Checkpoint programme followed the story of couriers and owner-drivers. Their jobs are tough. Campbell tracked how they work long hours, have no paid annual leave, and some earn less than the minimum wage. Part of the reason is the way the law is currently interpreted. Officially, they are classed as contractors, self-employed people running their own business.
Being self-employed can be great for some people. They can seize opportunities and run a profitable business. They usually have the freedom to work for a range of clients and so they’re classed as independent contractors. But others, such as couriers, are different.
They don’t have a lot of choice in what they do – they’re dependent contractors. They work exclusively for one company, wear a corporate uniform (that they must pay for themselves), and work in the way the company wants. They carry a lot of high costs, buy a specific type of vehicle and paint it with the company logo.
Much of the courier role sounds very similar to employees, rather than free-ranging, self-employed workers. But because couriers are officially contractors they miss out on most of the protections that employees have. Campbell interviewed budget advisory services which reported that the ‘‘new poor’’ are actually workers, including people in contractor roles, who don’t earn enough to live on.
To change the situation for these workers is complicated. The usual tactic is to change the law, creating new rules to protect contractors. That route usually creates a political storm, however, pitting business groups and Right-wing political parties against worker groups and Left-wing parties. Former Labour MP Darien Fenton attempted this in the past. Usually, party-politics take over and it grinds to a halt.
Campbell’s programme did something different. It stirred up so much interest that a host of highprofile players joined in and added their insights. Campbell pursued the topic for several weeks, and eventually a rare thing happened – a former chief judge of the Employment Court offered his perspective, on air.
This rallying of interest through the media came up with an alternative tactic. Rather than creating new law, there’s the option of testing the application of the existing law, the Employment Relations Act, which has been in place for 18 years.
It needs someone to test the issue with a case in the Employment Court, and so First Union has stepped up to do that. It will argue that the courier drivers are, in fact, employees.
This is curiously similar to the story of Kristine Bartlett, the rest-home carer who became 2018 New Zealander of the Year. Bartlett partnered with the E tu¯ union, also using a statute that had been around for years, with the 1972 Equal Pay Act. After a series of court cases and appeals, the act was interpreted anew and this led to a $2 billion settlement, bringing big pay increases for about 50,000 workers in female-dominated care roles.
You could argue that this new approach is democracy in action, using existing laws as a remedy when workers aren’t getting a fair deal.
It’s hard to predict the outcome of couriers’ court action. Already, business groups have indicated they’re not enthusiastic. We’re likely to see the courier companies, and a range of other businesses which have a lot to lose, squaring off against First Union and other worker groups, on each side of a hotly contested case.
The Government and the business sector don’t need this contest just now. They’re busy wrestling with the existing law changes mooted for Parliament. The couriers’ challenge will happen in another arena, the courts. For the Government, it’s handy that it isn’t seen as causing the contractors’ issue.
But if the case doesn’t go in favour of the business groups, it may unfortunately add to their current discontent. For Campbell though, this could be a story that changes a part of society.