2012 Annual Survey of Violations of Trade Union Rights - New Zealand

Population: 4,360,000
Capital: Wellington

ILO Core Conventions Ratified:

29 (Forced Labour (1930))
98 (Right to Organise and Collective Bargaining (1949))
100 (Equal Remuneration for Work of Equal Value (1951))
105 (Abolition of Forced Labour (1957))
111 (Discrimination in Employment and Occupation (1958))
182 (Worst Forms of Child Labour Convention (1999))

Reported Violations – 2012

Threats: 5

Documented violations – actual number of cases may be higher

Introduction

In 2011, government amendments to the Employment Relations Act 2000 came into force reducing workers' rights. Film and computer game industry workers no longer have the right to organise or bargain collectively under employment law. Unions face difficulties in accessing workplaces. Many employers put pressure on workers not to join a union.

Background

General elections for the House of Representatives (single-chamber parliament) were held in New Zealand on November 26, 2011. The Centre-right National Party got 60 seats, the Labour Party 34, the Green Party 13, the New Zealand First Party 8, the Maori Party 3, while the Mana Party, UnitedFuture and ACT New Zealand all win a seat each.

The general unemployment rate is 6.6% and 23.4% for those under 20 years at September 2011. At March 2011, 20.9% of wage/salary earners were union members representing 17.4% of the employed labour force. The Government has reduced staffing in the public sector by over 2,000 people since 2009 with the expressed intention of reducing numbers further in 2012.

An explosion at Pike River Mine in 2010 killed 29 workers including a union delegate. The Royal Commission investigating the disaster has heard of negligence over health and safety practices. The Commission will report in 2012.

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.

Link to additional detailed information regarding the legislation on the ITUC website here

In practice

Expensive legal actions over employment issues including union access:

In 2010 and 2011, unions succeeded in nine law suits taken to the Employment Relation Authority and Employment Court against food companies: Talley's Group Ltd, AFFCO Ltd, and Open Country Dairy Ltd over employment issues including union access. Talley's Group have acquired majority ownership shares in AFFCO Ltd and in Open Country Dairy in recent years. Only one of the cases resulted in a fine being imposed for breach of good faith. In other cases, the employer was ordered to comply with legislation such as enabling union representatives to have access to the worksite. The Meat Workers' Union spent over NZD100,000 in litigation costs on disputes at one worksite. It was successful in Court but was only awarded a portion of this sum to cover costs.

It can take years and applications to three different judicial bodies for unions to get a final determination when employers are hostile to unions and well-resourced. In 2011, the Service and Food Workers Union (SFWU) and the Public Service Association (PSA) finally gained a pay-out for night duty residential care workers who had been paid below minimum wage for many years. After three years of legal action and years of negotiations the government mediated a law change for a partial pay-out that gave years of back-pay to the workers, but not the full amount that was owed. The cost of taking legal action is a drain on unions.

Increased use of contract workers: Private and public sector employers are hiring more workers as contractors rather than employees. Contractors are not covered by most New Zealand employment law which includes the right to organise, the right to take collective action, and the right to lodge personal grievance cases for wrongful dismissal. In 2011, the CEO of Ports of Auckland has threatened to make all union members redundant and replace them with contractors.

Pressure not to join a union:

Some workers have been pressured by employers not to join a union, or to sign an individual contract rather than a collective agreement, by financial incentives or through fear of the loss of a job, or demotion to a lower ranked job.

In 2011, AFFCO Meat Company offered employees at some of its plants an additional extra 3% in wages to accept individual employment agreements [IEAs] in preference to a collective employment agreement [CEA]. Those accepting IEAs were promised secure jobs and a NZD1,000 attendance bonus for 98% attendance. Meat Workers Union (MWU) members were laid off, but workers on IEAs with shorter service, were kept on. The employer had previously agreed to seniority guaranteeing longer employment. AFFCO employed non-union workers ahead of union members at AFFCO meat works at Imlay; Rangiuru, Horotiu, and Moerewa. MWU applied to the Employment Court to stop AFFCO's actions. In April 2011, the Judge ruled in the union's favour and said that AFFCO had to engage union members in accordance with seniority lists. The Judge found that AFFCO had favoured non-union workers in offering them longer contracts than unionised workers and that this practice was discriminatory. In a separate case in 2011, the Employment Relations Authority found that AFFCO had demoted a skilled senior employee down to a basic labourer's position because of his union activities.

Even when legal action is successful, financial and other pressures may result in employees leaving the union. Industrial and legal action was initiated between the Dairy Workers Union and Open Country Dairy Ltd in 2009 following a bitter dispute with the company who reduced conditions of employment and union rights. The dispute was concluded in 2011 and the union won the right to collective bargaining in Court, but the decision came too late for the workers and only 6 of the 34 locked out workers retained employment with the company. Those six workers subsequently accepted financial incentives to leave the union. Open Country Dairy now has no union members.

Difficulties with union access:

From 1 April 2011, union access has required formal application with one working day notice which should not be unreasonably denied. Nevertheless some employers have refused unions entry to a workplace or made access difficult for union representatives. Organizing at worksite is rendered more and more difficult as restrictions on union access are impeding unions' ability to organise worksite meetings.

Sky City Casino issued a trespass order against two Unite union officials in January 2011 to prevent entry during an industrial dispute. The union successfully challenged the legality of the order. AFFCO Ltd denied access to union representatives from both the Public Service Association (PSA) which represents meat inspectors and the Meat Workers Union (MWU) at its Imlay plant prior to 1 April 2011.

Talleys Ltd restricted union access to one-on-one meetings with individual workers at one worksite rather than allow a union group meeting. Workers were only allowed to attend meetings on their breaks and had to travel to an out-lying block to attend. Union rules required 50 percent of union workers to ratify any decisions and the access restriction prevented union decisions from being ratified. The Employment Court has now required the employer to admit union representatives to that site but each subsequent denial of access has required separate legal action to gain access.

The Employment Relations Authority upheld the AFFCO's action in respect of the MWU at one worksite because of potential disruption to a new shift in spite of the union seeking the visit over introduction of the new shift without consultation. In a similar case between AFFCO and MWU over access to discuss a new shift with members, the Authority upheld the union's right of access.

During a 2011 industrial dispute, Canterbury Meat Processing Rangitikei (CMP) Company Ltd denied access to union representatives. Meat workers were given a new contract to sign that cut their pay by 20%. 111 meat workers were locked out when they took industrial action and refused to sign the new contract. The Meat Workers Union was only able to support the locked out workers because of substantial financial support from other unions.

Collective bargaining obstructed for workers in the film and computer games industries:

Workers in the film and computer games industries are contractors rather than employees – unless this is explicitly negotiated – as a result of changes to the Employment Relations Act (ERA). The ERA (Film Industry) Amendment Act 2010 denies film and computer game industry workers the opportunity to bargain for a collective employment agreement or to be represented by a union in employment negotiations. There is no specific union for computer game developers. Furthermore, the government changed immigration regulations in 2011 to enable easier access for overseas film workers to work in New Zealand. The union for the film sector fears loss of work and undercutting of wages and conditions.

Film and computer game worksites have restricted access on security grounds for commercial reasons. This impedes unions' ability to gain information on informally reported health and safety lapses. Both sectors report workers regularly working in excess of fifty or sixty hours a week or more. The Department of Labour investigated a complaint against a games company in July 2011 from a contractor working 14 hour days, 7 days a week, for 4 weeks. The Department did not find sufficient evidence to lay charges but industry consensus was that such working hours were common. Two people received minor injuries in an explosion at Sir Peter Jackson's Wellington film studio. The Fire Service put out the fire and investigated the explosion but was prevented by a secrecy order from speaking on the incident. Private reports have been received of previous accidents but information is difficult to gather with the security requirements.

Violations

Development of yellow unions: In industries, including transport and security, there are employer initiated organizations taking the role of unions without real independence. Workers at these companies are signed up to the employer organisations without reference to independent unions.

Union members harassed including the fast food sector: There are informal reports from union officials and union members directly affected by anti-union hostility at workplaces, particularly in the fast food and service sector. Some union members in fast food sector, meat and fish processing have reported harassment or intimidation from employers.

Harsh working conditions on foreign fishing vessels in New Zealand's territorial seas:

New Zealand's territorial seas represent an economic exclusion zone (EEZ). Non-unionised workers on foreign chartered vessels (FCVs) in the EEZ are regularly harassed and abused. There have also been reports of employers in the fishing sector using surveillance and threats of intimidation to prevent testimony into conditions of work on FCVs in New Zealand waters. Some union representatives helping non-unionised FCV fishing workers have been followed and there are informal reports of surveillance by private investigation agents.

In 2011, there were 27 FCVs operating in the EEZ under charter arrangements with NZ companies. A report by Auckland University into the working conditions on FCVs stimulated media interest into claims of abuse of crew in November 2010 together with a union petition documenting other abuse. This led to the Government setting up a Ministerial Inquiry in 2011 on conditions on FCVs to report in 2012. Workers on FCVs are covered by a legal Code of Practice required of vessels licensed to fish in the EEZ, with industry specific regulations under NZ's Minimum Wage Act. According to reports, the regulations are consistently broken and workers are not receiving minimum wages. Research indicates serious labour and human rights abuses are common with many crew forced to work in substandard conditions. The university research also reported allegations of sexual abuse.