2011 Annual Survey of violations of trade union rights - New Zealand

Population: 4,500,000
Capital: Wellington
ILO Core Conventions Ratified: 29 – 98 – 100 – 105 – 111 – 182

In 2010 the Government made a number of amendments to the Employment Relations Act 2000, the effect of which is to reduce workers' rights. The Government also specifically removed the right of film industry workers to organise and bargain collectively. Unions face difficulties in accessing workplaces, and anti-union employers are not uncommon.

TRADE UNION RIGHTS IN LAW

While trade union rights are secured in law, legal amendments in 2010 brought undue restrictions. The principal industrial relations law, the Employment Relations Act 2000 (ERA), establishes freedom of association for workers, including those in the public sector, the right to bargain collectively, and the right of union access to workplaces. Social, environmental and economic factors are excluded as grounds for industrial action.

The 2010 changes to the ERA, which will come into force on 1 April 2011, stipulate that all new employees will lose protection against unfair dismissal during their first 90 days of employment. Similar legislation came into effect for employees of companies with fewer than 20 employees on 1 April 2009. Employers do not have to provide any reason for the dismissal. The changes also include a requirement for unions to give one working day notice of their intention to visit a worksite, and employers will be able to legally refuse access if they have a reasonable cause to withhold access. However, the law does not define the term "reasonable", which opens up the door to abuse. Finally, in 2010 the ERA (Film Industry) Amendment Act was also passed to ensure that workers in the film industry are contractors unless they have specifically negotiated an employment agreement. Contractors are not covered by provisions of most New Zealand employment law nor are they able to join unions.

TRADE UNION RIGHTS IN PRACTICE AND VIOLATIONS IN 2010

Background: The centre right Government elected in late 2008 responded to the 2009 financial crisis by conducting broad discussions with employers and some union leaders on how to minimise economic impacts. Unions at that time cooperated with employment initiatives such as a subsidised nine day working fortnight, but the lack of investment in job creation, cuts in public services, and employment law changes that restrict employment rights reflect the Government's pro-employer agenda. The general unemployment rate is 6.8% and 25% for those under 20 years.

Increased use of contract workers: Private and public sector employers are increasingly hiring workers as contractors rather than employees. Contractors are not covered by provisions of most New Zealand employment law including the right to organise, the right to take collective action, and the right to lodge personal grievance cases for wrongful dismissal. They are also not entitled to sick or holiday leave or overtime payments.

Difficulties with union access: In theory unions can access workplaces and can sign up workers as members. In practice, many employers oppose this and prevent easy access to members including requiring union officials to be accompanied at all times in entering a workplace and controlling the space and circumstances for union meetings with members. Some unions have already reported obstructive attitudes by employers prior to new access requirements coming into force on 1 April 2011. One employer Pacific Flight Catering blocked union access to the workplace for over two years until being required to grant access following legal action. Union visits to that workplace are still heavily monitored and supervised and a police check of the union official was required. Open Country Cheese attempted to prevent access to the Dairy Workers Union (DWU) union officials in June 2009 until the Employment Relations Authority ruled that access should be permitted. Other unions report oversight or impediments to workplace visits. The amendments to the Employment Relations Act in 2010 will only aggravate the situation (see "Trade union rights in law").

Pressure not to join a union: Some employers have pressured workers not to join unions by offering individual employment contracts at similar or better rates than those stipulated in the collective bargaining agreements. There have also been reports of workers being treated unfairly after joining a union, which discourages other workers from joining. In addition, employers have assigned union members to less favourable rosters or have dismissed them during the 90 days probation period.

It is difficult to take effective legal action against employers, and few employees are willing to risk their employment to do this. There have, however, been successful cases. In a significant case in 2008 a worker at McDonalds challenged her employer for trying to influence her not to join the Unite Union.

The union took the matter to the Employment Relations Authority and won NZD 15,000 in compensation from the company for breaching the undue influence provisions of the Employment Relations Act.

Collective bargaining obstructed: In September 2009 the Dairy Workers Union (DWU) sought agreement from Open Country Cheese to negotiate a collective employment agreement for their employees. The company opposed collective bargaining at the site and responded by locking out the employees when the union lodged notice of strike action. The lock-out was ruled illegal by the Employment Relations Authority on the basis that the company was not engaging properly in the bargaining process. The DWU won the right to collective bargaining but the company which had announced restructuring during the dispute did not re-employ all the workers. Some workers took redundancy in confidential settlements. Only 6 of 34 workers retained employment with the company. Continued opposition by the employer to collective bargaining through 2010 has resulted in the workers leaving the collective agreement and taking up individual contracts. Open Country Cheese is now fully de-unionised.

As a result of the ERA (Film Industry) Amendment Act 2010 which came into force immediately, film industry workers were denied the opportunity to bargain for a collective employment agreement or be represented by a union in employment negotiations.