Law changes aim to focus power in employers’ hands
There are shades of the old Employment Contracts Act in the Government’s new labour legislation, writes Stephen Blumenfeld.
THE Employment Relations Amendment Bill has been rushed through Parliament and will take effect on March 6 next year.
While changes to rest and meal breaks have received considerable media attention, the changes affecting union security and collective bargaining are more significant.
The principal intent of National’s employment law reforms appears to be to limit unions’ ability to operate effectively in the workplace, hence weakening unions’ power and undermining the efficacy of collective bargaining.
The law requires that, unless there is ‘‘a genuine reason based on reasonable grounds’’ not to, the parties must conclude a process of collective bargaining.
This is what prevented the employer in the dispute at the Ports of Auckland three years ago from declaring all its workers’ jobs redundant and effectively sacking striking dock workers.
Yet, under the Government’s employment law reforms, employers will be able to throw in the towel after engaging in ‘‘surface bargaining’’, a strategy in which a party merely goes through the motions of bargaining in the guise of ‘‘good faith’’, with no intention of reaching agreement. Employers will be able to use the threat of contracting out the jobs of striking workers to compel agreement on their terms.
They will be able to place their employees on individual employment agreements, irrespective of those employees’ desire to be covered by a collective agreement.
Another change included in the Government’s latest reforms will undermine support for multi-employer bargaining, such as the nurses’ multiemployer collective agreement (Meca), which covers all district health boards. National contends that allowing employers to opt out of Meca bargaining will expedite the time devoted to bargaining with unwilling employer parties. This change will remove the right of union members to strike to secure a Meca, marking a return to the position in the 1990s, under the muchreviled Employment Contracts Act, to which National has continued over the previous several election campaigns to claim it has no intention of returning.
Other changes include allowing proportionate pay reductions as a response to partial strikes, such as workto-rule or work slowdowns, and requiring advanced written notice of any proposed strikes and lockouts in all sectors.
The impact of the former will depend on whether any such pay reduction is measured purely on a ‘‘time lost’’ basis or whether employers are somehow able to take account of the ‘‘quality’’ of the work not performed.
The latter of these policy shifts will allow a period of time for employers to influence the work environment to avert the impact of industrial action and make pay deductions from the onset of industrial action.
Perhaps the biggest threat to union security, though, is removal of the ‘‘30-day rule’’, which requires that nonunion workers be employed for their first 30 days of their employment, under the same terms and conditions as those in any collective agreement covering their work. This is intended to protect newly hired workers from being offered inferior terms and conditions to those enjoyed by all others doing that work for the employer. Yet, under changes approved by Parliament, employers will be able to employ non-union workers on individual terms and conditions, from day one on the job.
This change will discourage workers from being part of the union and involved in collective bargaining. Moreover, it will make it easier for employers to undermine the collective agreement and employ casuals on lower rates.
The reforms in National’s latest employment law package are cloaked in the neo-liberal rhetoric of increasing flexibility and choice.
However, nothing in the package should come as much of a surprise to anyone who has followed National’s policy declarations and legislative enactments during its first two terms in power. Its employment relations policy has followed a pattern of rolling back – albeit incrementally – many of the legislative reforms in the employment arena made by Labour.
Considered as a whole, this piecemeal policy shift would seem to belie National’s repeated assertion that it has no desire to thrust New Zealand back to the dark days of the Employment Contracts Act.
Stephen Blumenfeld is director of the centre for labour employment and work at Victoria University.