Author: E tū

‘Sense of mourning’ as Norske Skog mill set to close

Workers at Norske Skog’s Tasman Mill now know they’ll be losing their jobs in little over a month’s time.

On Wednesday afternoon, workers were told the mill will be stopping production from the end of June, with most taking redundancy from 16 July once a clean-up has been completed at the site.

The closure affects about 160 workers, including more than 30 E tū members who work in maintenance.

Delegate and E tū industry spokesperson Bruce Habgood says while there’s relief from some workers that there is more clarity around what their future holds, the sense of loss is real.

“There’s a strong sense of mourning that the mill is shutting down – it’s been a big part of the town’s history for several generations and is the reason Kawerau township was built in the first place.

“While the mill now isn’t the huge employer it used to be, there’s many other businesses that have been created to support it – and they may really suffer ‘death by a thousand cuts’ once the mill’s gone.”

Bruce says the closure highlights the importance of workers being unionised, so that they have access to collective agreements that contain redundancy provisions and protections.

“Some of the workers at the mill are of an age and skillset that means they aren’t so employable anymore and might never work again. We also really need businesses to have their own transition plans going forward so that workers have choices and alternatives.”

Outplacement services will be available to workers, but E tū will be looking at how to formally recognise workers’ skills gained on the job so they can take up other employment opportunities, Bruce says.

E tū organiser Raymond Wheeler says E tū will also be discussing re-skilling and training opportunities for all mill workers.

Having a ‘Just Transition’ plan in place is crucial to ensuring workers have a future when businesses close, and this includes provisions such as social insurance as the Government proposed in Budget 2021, he says.

“A Just Transition is vital, both now and for future generations to come, and is a concept which the Climate Change Commission has recognised is key in transitioning to a low-carbon future.

“We also need to continue to progress the Industry Transformation Plan (ITP) for the forestry and wood processing sector and see what can be done to bring more of the manufacturing supply chain back to Aotearoa New Zealand.”

ENDS

For more information and comment:
Raymond Wheeler, 027 597 5404

Commission lays foundation for necessary Just Transition

E tū welcomes the latest Climate Change Commission, He Pou a Rangi, report to the Government as it lays firm foundations for a Just Transition to a low-carbon economy.

Ināia tonu nei: a low emissions future for Aotearoa sets out a policy direction for a fair, inclusive, and equitable transition for workers and their communities.

E tū researcher Sam Huggard says the advice covers the core components advocated by E tū for a Just Transition: proactive transition planning with all parties at the table, widely accessible education and training, dedicated support for workers in transition, and better analysing the distributional impacts of climate policies on population groups.

“For key industries in transition, a collective approach is needed to map out the transferable skills across a workforce as a whole and actively manage the process of redeployment into new work.

“Workers know that change is coming to their jobs as a result of climate change and other trends, such as automation — that’s why a Just Transition is so necessary.

“We welcome the Commission’s recognition of the call from unions and others for this work to be secure, well paid, and decent work.”

Sam says the union also endorses the Commission’s views on the need to partner with iwi, hapū, and whānau to design an equitable transition that works for Māori, and to ensure Māori social and economic interests are protected and Te Tiriti is upheld.

“This report shows that the foundations have been laid for genuine involvement of workers in designing their future, which is necessary to give people confidence we can achieve this.”

However, key challenges remain, with significant investment needed to develop new industries or support existing ones to transition to a low-carbon future, he says.

“We think further government investment, beyond that set aside in Green Investment Finance and the Regional Strategic Partnership Fund, will be needed,” Sam says.

“Many of the support measures needed to mitigate the impact of decarbonising will come with a cost, and so we also need an honest debate and further action on tax reform, to ensure we are bringing in necessary revenue to fund the transition.”

ENDS

For more information and comment:
Sam Huggard, 021 462 148

Profile: Lalopua Sanele QSM

E tū leader, delegate, and cleaner Lalopua Sanele has been awarded a Queen’s Service Medal (QSM) in the Queen’s Birthday honours list 2021, for services to the union movement and Samoan community. Here’s a little bit more about Lalopua and her story of service.

Lalopua Sanele came to New Zealand in 1972 and was immediately involved in the Wellington Samoan Community based around her church – St Anne’s Catholic Church in Newtown.

From 1972 until 2010 she was an active member of the St Anne’s Church Choir and she joined the Samoan Mother’s Group in 1974, where she played a leadership role and was elected as their treasurer. She was later elected as the treasurer for the Church Samoan Community, a role she held until 2000.

In 2010 she moved with the Samoan Catholic Community to St Josephs Parish in Mount Victoria, where is still an active member of Iesu le Tupu choir.

Lalopua has been employed as a cleaner at Wellington Hospital since 1987. The majority of Wellington Hospital cleaners have, for the past 40 years, been mainly from Samoa or other Pacific nations.

Due to Lalopua’s ability to organise and advocate she was elected as a workplace union delegate.

Her involvement in the union lead her to become a leader in the Wellington Hotel and Hospital Workers Union (later becoming the Service and Food Workers Union and then E tū) Komiti Pasifika. She was elected on to the union’s regional executive and later the National Executive.

Lalopua represented her union at biennial NZ Council of Trade Union Komiti Pasifika Fono and also at the South Pacific and Oceania Council of Trade Unions Conference.

Lalopua is very active in advocating for the improvement of employment rights for workers, especially for vulnerable workers, such as cleaners. She was prominent in the campaign 1999-2004 to gain an amendment to the Employment Relations Act (Part 6A) in 2004 to protect the jobs and working conditions of cleaners during tendering processes. She was able to articulate the issues for cleaners from her own experience at Wellington Hospital in going through the process of contract change and the insecurity and stress that this caused the cleaners and their families.

She appears regularly before Parliamentary Select Committees on behalf of the union supporting improvements in statutory annual leave, rest breaks and improved rights for elected workplace representatives.

Lalopua is now a cleaning supervisor at Wellington Hospital and has completed 34 years service, including working through the recent Level 4 lockdown overseeing the infection control measures put in place for hospital cleaning.

E tū supports International Cabin Crew Day today

E tū is the biggest aviation union in Aotearoa New Zealand and we are proud to stand with the the International Transport Workers’ Federation (ITF) on International Cabin Crew Day.

The aviation industry has been particularly hard-hit by the COVID-19 crisis. From massive job losses to significant health hazards, cabin crew across the globe are doing it tough. E tū supports the ITF’s priorities for 2021:

Vaccination priority – prioritises cabin crew to receive vaccines as they are front line workers and vaccination is essential for the restart of the industry. E tū is pleased that in Aotearoa New Zealand, we have made great progress here. We support other unions to achieve the same.

Recertification – Training during the pandemic has shifted from normal operations. This has affected confidence in cabin crew returning to work and dealing with high risk situations on boards. Cabin crew need to go back to permanent roles via safe, hands-on, training and standards.

Disruptive passengers – Crew are faced with an increase in disruptive passenger incidents due to the ongoing pandemic and procedures on board – the Montreal Protocol 2014, which was designed to ensure proper prosecution of disruptive passengers, remains unsigned by many countries. This protocol serves as a crucial tool to ensure offenders are correctly prosecuted and do not have an opportunity to re-offend. All countries should sign up to the protocol.

Mental health – Mental health of aviation workers has been severely affected by COVID 19 and the decimation of the industry. Mental health needs to be a priority going forward in the formation of well-being protocols, critical responses programs and return to normal operations incentives. The pandemic has shown us all the importance of focusing on well-being and mental health.

Budget 2021: Social insurance “long overdue”

E tū is celebrating the release of Budget 2021 today, which makes significant moves improve the lives of Aotearoa’s workers and their communities.

In particular, E tū applauds the plan for an ACC-style ‘social insurance’ scheme, which would give workers income protection if they lose their jobs.

E tū Assistant National Secretary Annie Newman says it’s great that the Government are prioritising the idea, which was in the Labour Party’s 2020 election manifesto.

“COVID-19 reminded us again how important it is to support people as they move in and out of work,” Annie says.

“Losing an income, even for a short while, can have extremely negative effects on workers and their families. Social insurance schemes have been proven to work well to mitigate this in many other counties, and its high time that Aotearoa New Zealand caught up.

“We fully support the idea and urge the Government to move quickly on this, as it is long overdue.”

E tū home support members will be celebrating increases for in-between travel.

“Finally, there is funding for home support workers to be paid properly when they are travelling between clients. Until 2015, workers weren’t paid at all for this travel. E tū members won the minimum wage for that time spent in the car, and Budget 2021 will see them getting their proper wage for that part of their work.

“There’s also funding for home support workers to have proper paid breaks – which is also long overdue.

“MSD security guards can also celebrate, with the Government’s commitment to paying them the Living Wage now cemented in the Budget.”

The Budget contains more pro-worker initiatives, such as restoring the Training Incentive Allowance, new funding for vocational education growth, and a further commitment to a Just Transition.

“Increased capital funding for Green Investment Finance will support growth in new, clean industries to replace those in fossil fuel sectors – but workers will need an assurance that this investment will lead to good, secure jobs.”

Annie says there is a lot more to celebrate in this Budget.

“We are very happy that the Government is finally making substantial moves on raising benefits – this will help people who lose their jobs from now, before the social insurance scheme is implemented. It will mean that if people are out of work long term, for whatever reason, they can live happier and healthier lives.

“We also commend initiatives supporting tangata whenua, new investment in education, and a lot more.

“Finance Minister Grant Robertson has described the three Budgets this term as a ‘package’ – we are looking forward to the next instalments for workers and our communities.”

ENDS

For more information and comment:
Annie Newman, 027 204 6340

Blog: “Let Us Live Our Lives”

By John Ryall, former Assistant National Secretary of E tū

On 1 July this year 8000 security workers will be added to the list of “vulnerable” workers who are guaranteed protection from job loss or reduction in employment conditions during a change of contractor.

The protection is contained in Subpart 1 or Part 6A of the Employment Relations Act, with the list of applicable workers contained in Schedule 1A.

The introduction of Part 6A and its continuation through hostile governments has been a tribute to the organisation of workers covered by its provisions and their unions, predominantly E tū and its predecessor Service and Food Workers Union.

Sub-contracting represents one of the oldest forms of capitalist exploitation and socially vulnerable groups have historically been engaged in forms of insecure employment. However, in New Zealand that was moderated for nearly a century by a well-regulated labour relations system that extended the rights to minimum wages, leave, hours of work and other conditions to the whole of an occupational or industry workforce.

Businesses were not incentivised to contract out the whole or part of their workforce because any contractor would have to employ their workforce on the same minimum terms and conditions of employment as the principal business.

However, in the late 1980s there was increasing pressure from right-wing lobby groups to free employers from this sort of regulation based on a convenient theory that successful businesses should only focus on what they were good at.

According to this theory healthcare facilities should only employ doctors, nurses and other clinicians as these were the core workers. Every other healthcare worker, such as food services workers, laundry workers, cleaners, orderlies and security workers were part of the non-core workforce and their work could be more efficiently carried out by companies that specialised in delivering this service.

Through competitive tendering the healthcare business could force the price of non-core services down and maintain this downward trend during every tendering cycle.

It was great for the healthcare business but miserable for workers employed by the contracting companies.

The non-core service workers, including cleaners, experienced loss of jobs and employment conditions every time a contractor changed and even after the change constant pressure to reduce their conditions down to the statutory minimum code.

There was no legal requirement for a successful contractor to offer the current cleaners work or if they did offer them work to continue any of their employment conditions. Once contracted out under this regime they effectively became fixed-term employees.

At common law the transfer of a business or part of a business involving a change of employer meant that employment with the original employer (the transferor) came to an end, and that if the individual’s employment was to continue with the new employer (the transferee), a new employment agreement had to be concluded. The common law upheld the principle of freedom of contract, only binding parties that have voluntarily agreed to be bound by such a contract.

In the 1990s New Zealand was one of the few countries that had made no legislative inroads into this principle in respect to transfers of business.

SFWU Contract Workers Campaign

In 1996 SFWU Legal Officer Luci Highfield wrote a paper on the union’s experience of contract labour issues in preparation for a 1997 International Labour Organisation Conference discussion.

This paper set out the difficulties the union had experienced since 1991 in relation to contracting out of services in public hospitals and the subsequent changes of contract and sub-contracting in schools, tertiary institutions and airports.

The paper described the difficulties faced by workers when second or third generation contracts are entered into:

The major difficulty with this type of job contracting is that while the user enterprise sits in a position of power, influence and direct control over the contractor and the workers, there is no easily identifiable nor enforceable legal obligations arising between the user enterprise and the workers or their union. There is no employment relationship between the workers and the user enterprise, and thus no obligations of bargaining, fair dealing, information disclosure, consultation and so on, that arise.

The work that Luci Highfield had been doing and the tsunami of contracting out in cleaning and catering strengthened the ties of the Service and Food Workers Union with the large Service Employees International Union (SEIU) in the United States and their exciting Justice for Janitors campaign. Justice for Janitors was a campaign to actively organise cleaners in major US cities through forming community and political coalitions to put pressure on building owners to commit to minimum employment conditions for cleaners in their tendering processes.

SFWU National Secretary Darien Fenton had also attended the 1998 and 1999 ILO Conferences, where the attempt to get a convention or recommendation on contract labour failed.

In 1998 the SFWU analysed its own membership and potential membership and noticed a growing percentage of the union was now employed by contractors. For instance, few cleaners and catering workers in public hospitals were directly employed and the large contracting companies they worked for (such as P&O Services, Spotless and QSE) had different employment conditions depending on industry and locality.

In 1998 the SFWU launched a campaign called Contract Workers Count! whose goals were to strengthen union organisation amongst contract workers, build membership participation and leadership, raise public support and introduce legislation to protect workers during changes of contract.

The SFWU allocated funding for a five-year campaign and employed Annie Newman as the campaign co-ordinator.

Out of the Starting Blocks

Contract Workers Count! was a significant turning point for the SFWU, which had deliberately adopted a very localised survival strategy since the 1991 Employment Contracts Act. This was the first initiative in which the union was taking a national approach, and in some ways a global approach, to organising.

There were multiple employment issues for cleaners across commercial buildings, in schools, in universities, in aged care and in public hospitals.

However, the big issue was the lack of power that the members faced through their employment by contractors or sub-contractors and the constant threats that if union members increased wage rates they would lose their jobs to a lower-priced competitor.

Contract Workers Count! was great for building the confidence of SFWU membership employed by contractors that change was possible providing they told their stories, became active and argued for that change.

The campaign featured the union taking a stronger position with the renewal of the national cleaning multi-employer agreement with pickets outside major buildings in Wellington and Auckland calling for greater job security for cleaners.

These pickets included church ministers, local and national politicians, and families of the cleaners under the banner Let Us Plan Our Lives – Justice for Cleaners.

The key union demands were for the cleaning contractors to agree to the same rate as directly employed school cleaners and the retention of cleaners’ jobs and employment conditions during contract changes. While the cleaning companies did not concede to either demand the cleaners’ action drew wider community and political support for change.

Part of the campaign was a photographic exhibition featuring the stories and lives of six cleaners, called For the Love of the People. The photographs were taken by Massey University students and the exhibition was shown in Wellington and Auckland in 1999 leading up to that year’s general election.

Featured in the exhibition were Lalopua Sanele, Paula Atatagi, Olive Harding, Hagavave Kato Amosa, Hinetemoa Kahu and Bill Herbert, all Wellington cleaning activists.

Labour and Green members of parliament were invited to each of the exhibitions, to listen to presentations from the cleaners and to commit in government to changing the law to protect the jobs and employment conditions of cleaners during contract changes.

Lalopua Sanele, one of the cleaners in the exhibition, said:

If a new company takes over the contract they want to reduce hours and give us more work. All they want from us is to make a profit. They don’t even care how hard we work or if we argue that it’s not good enough and the area can’t be cleaned – they expect us to do it.

1999 General Election Commitment

The SFWU, as a Labour Party affiliate, had been arguing for Labour to adopt a manifesto commitment for the security of employment for workers employed by contractors and with the increased activity by cleaners and other workers a policy was launched leading up to the 1999 general election.

The policy said:

Labour is of the view that where a business or parts of a business are transferred to a new owner, the original employees have a right to be employed on terms and conditions no less favourable than those applying before the transfer, and their service should be deemed to be continuous. In this situation workers should only be made redundant for the same reasons that would have applied if the business had not changed hands. The rights of employees whose work is contracted out are also adequately protected under current law and will be improved.

A Labour-Alliance Coalition Government was elected and the introduction of the Employment Relations Bill, to replace the hated Employment Contracts Act, occurred soon after this.

Clause 66 of the Employment Relations Bill, under a heading Continuity of Employment, was inserted in a muddled attempt to carry out the manifesto commitment without interfering with the common law right to contract.

Clause 66 deemed a collective agreement to contain a provision that required an employer to continue to employ an employee who is bound by that agreement and employed by the employer during the whole period the collective agreement was in force and during the period in which the collective agreement is enforceable by a union. However, clause 66 also allowed the union and employer to vary this commitment and made it clear that it did not interfere with dismissals for just cause.

Both employers and unions disagreed with this clause for different reasons. During the second reading of the bill the Green Party put forward a Supplementary Order Paper that set out a targeted provision protecting the job security and employment conditions of workers in contracting out situations, but this was not supported by Labour or the Alliance and not included in the Act.

The SFWU leadership held a last minute meeting with Alliance Leader Jim Anderton, Alliance MP Laila Harre and Alliance President Matt McCarten to resurrect something out of clause 66, but it was too late.

While Clause 66 was removed from the legislation, the Government responded by inserting in the Act Section 54(3)(a)(ii) requiring every collective agreement to contain a clause setting out the rights and obligations of the employees and the employer if the work of any of the employees were to be contracted out or the business or part of the business of the employer concerned were to be transferred or sold. It also committed to setting up an advisory group to assess whether existing provisions were adequate and to honour its 1999 manifesto undertaking by addressing the issue in its second term.

Advisory Groups Set Up

The first of the Government advisory groups, chaired by Nigel Haworth, was set up in December 2000 and contained representatives of the NZ Council of Trade Unions (Luci Highfield and Peter Conway), the NZ Employers Federation as well as nominees of Maori, Pasifika and the State Services Commission.

The SFWU made a powerful submission to the advisory group focussing on its cleaning and catering membership. Food service worker Fia Mika said:

I’ve been working in this hospital kitchen for 11 years and we have been contracted four times. In August 1998 Spotless took over and this place was turned into a war zone. Spotless tried hard to reduce the number of staff and reduce the hours. They expect people to work long hours with no extra pay. To work faster like machines. They tried to get rid of permanent staff and employ more casuals. They want the workplace run by casuals. They never appreciate the work we do.

The final advisory group report was presented in April 2001 and identified six options around the protection of employees’ terms and conditions of employment in the event of sale or transfer of a business or contracting of the employees’ work. They varied from taking no action through to implementing a comprehensive right for all New Zealand workers based on the European Union Acquired Rights Directive.

The advisory group, with the exception of the NZ Employers Federation, accepted the need for legislative intervention to provide protection for workers in cases of contracting out or sale or transfer of a business.

With the important exception of the employer party, the Group reached the view that there was prima facie evidence of the need to provide further protection, particularly for vulnerable members of the workforce. This view strongly supported the introduction of a comprehensive measure that would guarantee the continuation of employment and established wages and conditions of work through the processes of contracting out or the sale or transfer of a business.

The advisory group was generally supportive of a model based on the European Union Acquired Rights Directive. However, they noted that more work needed to be done on this to fit New Zealand circumstances.

Soon after receiving the advisory group report the Minister of Labour set up a smaller group to undertake technical development work on the options for change, the likely impact of each of the options and to make recommendations. The group was made up of Nigel Haworth (chair), with representatives of the NZCTU, Business NZ and lawyer Denis Clifford.

The NZCTU tabled a draft transfer clause with wide coverage applying to a range of transfer situations, requiring the employment of all workers on their existing terms and conditions of employment at the point of transfer.

This draft clause was used by the Group to consult widely around New Zealand with meetings held in all the main centres. The union and worker submissions were dominated by Service and Food Workers Union members employed as cleaners, food service workers and hospital orderlies, all of whom had lost their jobs or employment conditions during changes of contract.

Business NZ remained staunchly opposed to any legislative intervention, recommending that a further period of time should be spent monitoring the good faith outcomes in the Employment Relations Act and the development of best practice guidelines for both employers and workers.

As a result of the consideration given to the submissions the NZCTU representatives proposed a strategy that included immediate legislative intervention targeted to transfers occurring in and around the same premises and/or involving defined occupational groups as a first step. The second step would involve further technical development and research with a view to introducing a generic provision at a later date.

While this was a change in the union position, it was also accompanied by a proposal to introduce a requirement for all collective agreements to have a scale of redundancy compensation and for a regulation to apply in the state sector to set specific rules in relation to procurement, sale, transfer and contracting out of work.

This strategy was included in the Group’s November 2001 Report along with draft legislation.

Discussions Continue

The SFWU continued to maintain dialogue with the Minister of Labour Margaret Wilson during the remainder of 2001 and in 2002 about the urgency of acting on legislation.

SFWU members visited nearly every Labour MP to explain the urgency of acting on legislative change.

In July 2002 the union wrote to Margaret Wilson outlining the ongoing problems for SFWU members associated with changes of contract at Christchurch Hospital, Northland Health and Press House in Wellington. In all these situations SFWU members had either lost their jobs, had their hours reduced or lost employment conditions as a result of the changes of contract.

The union also wrote to other cabinet ministers detailing cleaning contracts that were being tendered in government departments that contained no requirement to transfer the cleaners’ jobs or employment conditions.

Labour’s 2002 Election manifesto continued its commitment to a comprehensive solution despite the debate shifting to a more specific immediate legislative intervention:

As a matter of priority, introduce a comprehensive measure (based on the work of the Ministerial Advisory Group) including legislative intervention to ensure there is a protection of employment conditions and continuity of employment in the event of the sale of business, transfer of undertakings, or contracting out.

On 5 September 2002 the NZCTU and SFWU representatives met with the Minister of Labour and her departmental advisers to discuss progress. The debate between the generic provision and various targeted provisions (including a new one that would only apply to employers in receipt of public funds) was still ongoing and there did not seem to be any end in sight.

The union objective was a comprehensive provision, but union representatives were prepared to deal with the most vulnerable groups first, given that most of the running on this legislation had been done by the SFWU and its active groups of cleaners and catering workers.

The meetings between the NZCTU, the SFWU, the Minister of Labour and departmental officials continued through the last few months of 2002 mainly focussed on the “unforeseen consequences” of a generic comprehensive provision.

In November 2002 the Minister of Health Annette King, in her letter of expectations to District Health Boards, tried to address the issues of contracting:

DHBs when contracting out services will ensure that all staff that wish to be transferred to the contractor are transferred and are appropriately protected. That is, staff transferring to the new employer will retain, for a defined period, the same terms and conditions of employment, including continuity of service, as those prevailing immediately prior to the transfer.

At the beginning of 2003 further problems emerged between the union expectations and those of the Labour Department officials.

Successor Contracts

The NZCTU was advised by the Labour Department that there were technical issues with including “succession to contract” (when one contractor replaces another) provisions in the new law. The Department’s argument was that there was no legal transaction directly between the contracting employer who loses the contract and the employer that wins the contract. They also indicated that the Government was reluctant to interfere with the competitive tendering process across the whole economy.

The NZCTU and the SFWU proposed that “succession to contract” become a targeted provision in circumstances where there is a change of employer providing cleaning, catering, caretaking, laundry and security work and where that work continues to be performed on or around the premises.

The SFWU, which had been driving the campaign around legislative change, was particularly incensed about excluding “succession to contract” situations, as in the cleaning and catering sectors this was the most common change that occurred.

The SFWU knew, from experience, that if successor contracts were excluded then there would be no effective protection for its membership. The union argued with departmental officials that including successor contractors would not spell the end of competitive tendering, which had regularly occurred even under the national awards system in the 1980s. It was simply a protection for the lowest paid workers, whose lives were thrown upside down every time a contract changed.

The SFWU continued to send the Minister of Labour examples of business restructuring and contract change. One of these was the sale of Taranaki’s Heatherlea Rest Home. The rest home workers, including cleaners, laundry workers, catering workers and caregivers, were all given notice and told that if they wanted to continue to be employed by the new owner they would need to apply for their jobs and accept lesser conditions.

The Labour Department officials had explored an option of succession to contract protections being done by administrative procedures rather than legislation, pointing to the letter of expectations from the Minister of Health to DHBs.

The SFWU rejected this approach pointing out that many DHBs had ignored the Minister’s direction or argued that they could not fulfil the direction because they had no control over what a contractor did with their employees or potential employees.

The SFWU took a test case to the Employment Court in 2003 to ascertain the obligations required under section 54(3)(a)(ii) of the Employment Relations Act, which had been inserted in 2000 as part of the answer to protecting workers in the case of contracting.

In its September 2003 decision the full bench of the Employment Court found that even though the Act required a provision in each employment agreement to protect workers in the case of contracting out this provision did not require there to be a guarantee of transfer or the retention of existing terms and conditions of employment.

The Court had established what the SFWU already knew – there needed to be stronger provisions for workers vulnerable to contracting out and regular changes of contract.

In October 2003 further large cleaning contract changes took place at Auckland University and Hutt Valley’s Weltech that saw nearly 100 cleaners lose employment conditions and in the case of the two Weltech union delegates Keri Lauina and Sharon Herekiuha, lose their jobs.

Legislative Change at Last

The pressure was on for legislative change and in November 2003 Cabinet approved legislation to be developed that focussed on strong provisions for “vulnerable” workers and lesser provisions for other workers.

Vulnerable workers were those who worked in labour-intensive lower paid work with little bargaining power, where change of employer situations was commonplace in their sector and where this led to the undermining of employment conditions.

Vulnerable workers would be included in a schedule, which could be added to by Order-in-Council.

The cabinet decision was a tribute to the SFWU and its Contract Labour Campaign. All of the listed vulnerable workers, such as cleaners, catering workers, orderlies, caretakers and laundry workers, were workers the SFWU organised.

The legislative amendments were part of an Employment Relations Amendment Bill, that went through the parliamentary process and was opposed by most employers and supported by affected workers and their unions.

The provision was contained in a new Part 6A – Continuity of Employment if Employers Business Restructured of the Employment Relations Act and came into effect on 1 December 2004 along with a similar provision covering all workers in the Public Health Sector.

Part 6A changed the lives of thousands of cleaners and other vulnerable workers in guaranteeing their jobs and employment conditions during contract changes.

Part 6A was amended in 2006 following the Employment Court finding that the wording of the statute did not protect workers involved in contract succession situations. The amendment, for the first time, set out examples of business restructuring to make it clear how the law would be applied in each situation. It also committed, at the insistence of NZ First, to a review of Part A after three years to assess whether it was meeting its purpose.

Cementing in the Gains

While contractors were opposed to Part 6A the large ones quickly adapted to the new rights that the workers had been given and tried to work with the legislation.

Issues arose when tenders for some buildings were split in half cutting the cleaners’ jobs between two contractors but given that many cleaners had more than one part-time job, these issues were soon sorted.

Franchising companies bidding for small cleaning contracts were a headache for the union as they usually handed these on to tiny family-based franchisees, who then found out that in addition to a fat fee to be paid to the franchise company they were required to pick up the employment of one or two existing cleaners.

The SFWU had also moved to cement in the Part 6A gains through working with the Labour Coalition Government, the Property Council and the cleaning industry employers’ body (Building Service Contractors of NZ) to adopt a regime for minimum standards in the cleaning industry.

In April 2008 all the parties signed up to the Principles for a Sustainable Property Services Industry, which was later incorporated as a minimum document for government procurement of cleaning services. It committed all cleaning companies bidding for government contracts to pay rates in line with the national cleaning multi-employer collective agreement, to promote collective bargaining, to recognise the union and to be a member of the BSCNZ.

The election of a National-led Government in 2008 did not immediately lead to any changes to Part 6A but during its first term a lobby started to develop led by Crest Cleaning, a cleaning franchise company that was starting to make inroads into school cleaning.

Reviewing Part 6A

The Minister of Labour Kate Wilkinson in 2009 set up a Ministerial Review Committee to carry out the statutory review of Part 6A as required by the 2006 legislative amendments. The Review Committee received 146 written submissions and concluded that the legislation was working as intended although identified some problems with the transfer of costs for annual and long-service leave between employers during transfers. The employer representatives on the review committee agreed with the findings and felt that the legislation had provided more stability in the cleaning sector, where most contract changes occurred.

The Ministerial Review Committee also made the following important points:

  • Industries with low-skilled and low-paid employees can benefit when wages and employee conditions are excluded from the contest for contracts and competition is instead focused on management, technical innovation and investment,
  • Continuity of employment protection in labour-intensive industries with high employee turnover can improve workplace stability and productivity, and
  • Broad socio-economic benefits can be achieved through improving the job security and workplace stability of employees who lack scarce skills and who are at risk to unemployment and related negative outcomes

The Minister of Labour Kate Wilkinson received the Labour Department Review Report without comment and in May 2011 told me in a discussion at the ILO Conference, that she had no intention of making any amendments to Part 6A that would undermine the workforce.

However, in late 2011 she ordered another report by the Sapere Research Group, a consulting agency that had links to ex-Treasury Secretary and ACT candidate Graham Scott. Her instructions were for Sapere to undertake a cost benefit analysis of the provisions of Subpart 1 of Part 6A to provide guidance on possible amendments.

While the appointment of the Sapere Group review was welcomed by Crest Cleaning its report, delivered in April 2012, largely came to the same conclusion as the Ministerial Review. Sapere concluded that in a national sense both the Part 6A benefits and costs were small, although for the vulnerable workers affected the key benefit of providing greater employment certainty was huge.

The Sapere Report examined whether Subpart 1 of Part 6A should be restricted just to large employers and concluded:

In light of what we have heard from interviews and found in our subsequent analysis, it seems likely that restricting the special protections to only large employers would be counter-productive and lead to even more perverse outcomes than the current arrangements. This is because it would result in transfer situations where one party had to be compliant and the other did not, leading in all likelihood to a breakdown in the exercising of the provisions at all.

The Labour Department agreed with this conclusion:

The Department concurs with this analysis…. Applying Part 6A of the Act to all businesses would provide more scope for improvement. Applying Part 6A of the Act to all businesses would ensure that all contractors were competing on an equal footing during a tendering situation.

Despite the departmental advice a nasty ongoing campaign by Crest Cleaning and the Whaleoil blog site was moving the Minister of Labour to insist that small contractors be exempt from the transfer provisions of Part 6A.

Amendments to Part 6A

When the amendments to Part 6A, to allow exemptions for employers of under 20 employees, were introduced in 2013 the bill came with a Regulatory Impact Statement noting that one of the detrimental effects of exempting small employers from certain parts of Part 6A was “a gradual reduction in overall level of employee entitlements, as work shifts from a big employer to a small employer, who is able to reduce entitlements, then to a big employer who upholds the reduction.

The SFWU fought hard against the amendment bill and won support from newspaper editorials, from faith-based organisations and even from the Building Service Contractors of New Zealand.

The BSCNZ submitted to the Parliamentary Transport and Industrial Relations Select Committee considering the bill:

We submit that if Part 6A is to remain, then the “exempt employer” regime ought to be deleted, preserving the level playing field that exists now. To exempt small to medium sized incoming employer contractors from this regime, on the basis of what appears to be an arbitrary number (20 employees), would completely undermine the purpose of Part 6A, and would substantially impact on the rights and obligations of all other participants

Despite the opposition the amendments to Part 6A were passed. The new regime included exemptions from transfer obligations for small employers although these were heavily prescribed with an “associated persons” test to prevent large franchise companies arguing that because they only employed (other than through their franchisees) less than 19 cleaners that they were exempt.

The amendments also set up a stronger regime of legal warranties between incoming and outgoing contractors so that the costs of transferred annual leave and other matters could be resolved between the parties. The SFWU supported these changes.

The 2013 amendments also changed the way by which new groups of vulnerable workers could be added to the list in Schedule 1A from an Order-in-Council process to a legislative amendment in parliament. The SFWU at the time supported this because of the difficulties this would pose for a National Government deciding to get rid of any groups in the list.

Security Officers on the Agenda

The exemption regime lasted until the election of a Labour Coalition Government in 2017, when the 2013 exemptions were repealed and the processes for adding new groups of vulnerable workers to the Schedule 1A list resorted to Order-in-Council.

Soon after the legislation was passed E tū (having been formed from the SFWU in 2015) began work on adding security officers to the Schedule 1A list.

In the 14 years since Part 6A was introduced into the Employment Relations Act there had been only one other group that had attempted to be added to Schedule 1A. This group was workers who worked for the Wellington Regional Council water services, who were rejected after a long and complicated process.

The union application for security officers to be covered followed the criteria set out in the Employment Relations Act as to who was a vulnerable worker, but also had to contend with the opposition from some security employers and concern from others that the definition of security officers might stretch too wide.

Coupled with the difficulties of getting through any worker-friendly measures in the 2017-20 Coalition Government and the Covid-19 pandemic, it took nearly two years before it was finally announced in March 2021.

Reflections

Part 6A certainly changed the lives and extended the rights of thousands of workers who between 1991 and 2004, in the words of E tū Kenepuru Hospital food services delegate Maria Churms, “were thrown around like clothes in a washing machine during contract changes”.

Part 6A has survived because it targeted workers that carried out hard invisible work, but when they stepped forward and told their stories, most New Zealanders were sympathetic to their issues.

I was told by one ex-Minister of Labour that he likes to fight for legislation that is going to resolve a problem or injustice that is real and not just imagined. He reminded me of a visit I had arranged with him to meet a group of cleaners. Listening to their heart wrenching personal stories about contract changes had stuck forever in his mind. He was committed to Part 6A as a real measure that was going to address a real problem for real people.

The aim of the union movement with the 1999 Labour-Alliance Government was to get a broad European-type right for job transfer for all workers whether low paid or highly paid.

However, with only the SFWU visibly campaigning for change when the pressure came on a targeted provision succeeded where the general provision failed.

That it has survived for 17 years through both Labour and National coalition governments is a tribute to its broad based support and the ongoing activity and visibility of the workers who are affected.

The addition of security officers is another step towards widening the coverage and including another group of workers, who in the last five years have found their voice.

E tū welcomes next steps for Fair Pay Agreements

E tū members are pleased to learn today about the next steps in the Government’s plan to implement Fair Pay Agreement legislation in this term of Government.

The Government has announced more details about what Fair Pay Agreements will look like, and their proposal is in line with recommendations made by the Fair Pay Agreement Working Group, which E tū supports.

E tū member and Auckland Council cleaner Josephine Wiredu, who is employed by a contractor, supports Fair Pay Agreements to secure decent pay across the cleaning industry.

“My colleagues and I have just won the Living Wage at our workplace. This is wonderful, after so long struggling to support my family on the minimum wage,” Josephine says.

“But we now need to get the Living Wage for the whole cleaning industry. A Fair Pay Agreement will mean cleaners will have certainty that we will get decent pay wherever we work.”

Fair Pay Agreements about more than just wages. They will also make it possible to set better conditions and protections, such as improved health and safety standards. Security guard Rosey Ngakopu says that’s desperately needed in her industry.

“Health and safety is the biggest issue at the majority of sites I have worked on,” Rosey says.

“We need regular welfare checks, decent facilities, and a lot more to keep us safe at work. Security guards are often overworked because it’s hard to fill positions on sites where guards don’t feel safe.”

“A Fair Pay Agreement will secure us better health and safety, as well as improving pay, training, and other conditions that guards need.”

The announcement today was made with the support of Geneva Healthcare, where Ana Palei works as a home support worker. She says a Fair Pay Agreement would address many of the main problems for workers in her industry.

“Work has become unbearable sometimes because of the lack of training and support for new people coming in, unrealistic expectations, unreasonable rosters, and demands which do not cater for any person’s health and wellbeing – especially for the vulnerable clients,” Ana says.

“When we won Equal Pay, our wages increased, which was great, but our hours reduced. Some home support workers feel we are now worse off. My hours have been reduced a lot.

“A Fair Pay Agreement means protecting us and our rights as human beings. It will promote equality in the workforce. It will prioritise health and safety and the wellbeing of each person, so that we can return home to our loved ones happy and not too stressed out.”

E tū Assistant National Secretary Annie Newman says today’s announcement shows that the Government is on the right track with Fair Pay Agreements.

“This will be the best change at workplaces in decades,” Annie says.

“Setting fair wages and conditions across the board will stop the race to the bottom, which sees employers competing for contracts by paying poverty wages.

“Workers deserve better pay, better job security, better health and safety, and better work. Fair Pay Agreements will become an important part of the picture.

ENDS

For more info or comment:
Annie Newman, 027 204 6340

Annie and Ana are available for media interviews in Auckland at the announcement venue.

Commendable increase to minimum wage but further rises needed

E tū welcomes the Government’s minimum wage rise and hopes its progression will continue to increase year-on-year to help lift more New Zealanders out of poverty wages.

From 1 April, the minimum wage will rise to $20 per hour – an increase of $1.10 up from $18.90.

The increase will benefit many groups of workers, including essential workers who are often the lowest paid, such as those in the cleaning, security, manufacturing, and aged care sectors.

E tū member Lavinia Kafoa says the increase will make a real difference to her pay packet, boosting it from what she earns hourly, which is just over the minimum wage.

“My rent is going up and I need to buy food for the kids – as single mother, it will really help me.”

E tū Team Leader Yvette Taylor says the rise is a commendable milestone, but the struggle is not over.

“This will make a substantial difference, but there’s still a long way to go before workers are receiving the Living Wage – the amount that workers need to truly survive and participate in society.

“We hope that the Government continues on this trajectory of increases to the minimum wage, to bring our national wage floor into line with what we know our essential workers need and deserve to live with choice and dignity.”

ENDS

For more information and comment:
Yvette Taylor, 027 585 6120

Pizzas, dough, and mad employers

By John Ryall, former Assistant National Secretary of E tū

The 1991 Employment Contracts Act undermined collective bargaining and diminished the role of unions. It promised employers a world in which they could do whatever they liked without being restricted by “onerous” worker rights.

The post-1991 period was tough for unions, but sometimes union organising was temporarily helped by employers who, in my opinion, were certified nutcases – full of their own importance, blaming their workforce for everything and so frenetically busy that they never stopped to examine whether their style of management was destroying their own business.

One of these employers was Romanos Pizzas, which owned a small factory in the Hutt Valley and was busy setting up another one in Auckland. The owner was Elaine Gordon, but the driving force behind the business was the general manager Alister Kirby.

From Liverpool to Alicetown

In my first introduction to Alister Kirby, after giving me a handshake that almost broke my knuckles, he said “I faced down the TGWU in Liverpool. New Zealand unions are pussies compared to them.”

He was short of stature, had a very short fuse, and was so busy growing his business that workforce issues were of secondary concern. His regular overnight road trips between Wellington and Auckland did not help his demeanor.

Romanos produced wrapped fresh pizzas and pizza bases for supermarkets and employed about 25 workers at its Hutt Valley factory. Given the attitude of its management towards unions it was quickly de-unionised following the Employment Contracts Act.

In mid-1992 I was approached by a Romanos worker Liz Campbell, who had been unjustifiably dismissed and despite not being a union member was seeking the Service Workers Union assistance with her case.

I told Liz that the union would represent her providing she could get the other workers in the factory to a meeting and they joined the union. She organised the meeting at her house, 10 workers turned up and they all joined the union.

I raised a personal grievance on behalf of Liz Campbell for unjustified dismissal. After a number of communications with the Romanos lawyers it was settled on terms acceptable to her.

By the time of the settlement the Romanos union membership had grown to about 50% of the workforce and our on-site organising committee was meeting regularly, led by our two delegates Yvonne Bartle and Liz Campbell’s sister Hilda.

Smelly pizzas

On 11 March 1993 Romanos had complaints from customers that some of its pizzas had a strong and unpleasant smell coming from them. Alister Kirby’s immediate instinct was to blame the workers and accuse them of deliberately poisoning the pizzas in order to get him to recognise their union.

Local health officials were demanding to inspect the premises so he had a strategy to comply with their demands and also punish the workers. He announced to the workers that the factory was closed until further notice because of the deliberate sabotage of the pizzas and told them they were all locked out for health and safety reasons.

I responded to the situation at the factory within 10 minutes of the call from the union delegates and met with the workers by the back door. I told them that the lockout was illegal and if they wanted to get their jobs back and be paid for the lockout they should all stand together and join the union.

The union suddenly had 100% day-shift membership and we were in a position to threaten Alister Kirby that unless he agreed to lift the lockout and pay the workers for the time locked out we would picket the factory and also seek an injunction in the courts.

By then he was caught in a dilemma of provoking a picket and a lot of publicity around smelly pizzas or lifting the lockout, sending the workers home and paying them while the health officials did their tests.

The lockout was lifted but not without a mouthful of venom from Alister Kirby about his pizza poisoning suspicions.

Disciplinary action

The next day, as everyone returned to work, one of the workers Lofi Tupu was called to a disciplinary meeting over the damage to a locker. When we arrived at the meeting we found that the disciplinary issues had increased from damage to the locker to threatening violence to another employee, changing the “best before” date on the pizza date stamp and poisoning the pizzas with a chemical.

With very little evidence to back up the other complaints and only a couple of scratches on the locker Alister Kirby accepted that only a written warning for the locker was in order.

However, the issue did not stop there. Over the next few days super sleuth Alister Kirby interviewed a number of factory workers and came to the conclusion that Lofi Tupu had poisoned the pizzas with nail polish remover.

Alister suspended Lofi and when we met with him he said the interviews had revealed that Lofi had contaminated the pizzas with nail polish remover. He alleged she painted her finger nails and used nail polish remover, said he knew she was the culprit and out of the blue offered her $1500 if she resigned her employment.

When she turned down his offer he read out an already-prepared letter dismissing her for damaging a locker, threatening another employee with violence and changing the “best before” date on the pizza date stamp. There was no mention of the pizza contamination or the nail polish remover.

Collective agreement time

If this was meant to be a signal to the other union members that he was the boss and you should do as you are told, then it did not work.

While the union pursued a personal grievance for Lofi, the other members demanded that the union negotiate a collective employment contract with Romanos to strengthen their rights in the face of an unpredictable employer.

The response from Alister Kirby to the news of a collective agreement was an “over my dead body” verbal barrage down the phone.

I followed this up with a meeting in his office accompanied by the workplace delegates, where I presented him with a draft collective contract. Without looking at it he threw it into the rubbish bin. I told him that it was unlawful not to consider the negotiation of a collective agreement. He reached over to the rubbish bin, took out the draft collective agreement and put it in the bottom drawer of his desk with a comment “I am now considering it.”

He did though agree to negotiate individual contracts with each union member.

The negotiations were a farce as every worker was offered a 25 cents an hour pay increase with no other improvements to their employment terms. Even though the first few members made excuses about not accepting the identical offer on the spot, it soon became obvious to the workplace delegates that members wanted to grab the pay increase and to keep on organising later around a collective contract.

Stronger stance

Twelve months later when it was time to carry out the negotiations again, the members decided to take on a stronger stance.

We decided that we would get the Romanos offer for each member and not accept any of the offers until all of the members could talk about what had been offered together. It was a form of collective negotiation of individual contracts.

I arranged a date for the negotiations and asked Service Workers Union organisers Lee Tan and Nanai Muaau to be available for those members who wished to speak or have any offers interpreted into their own language, although Alister insisted that he would only allow myself and one worker at a time in his office for the negotiations.

I meet with Alister Kirby with the first member while Lee Tan waited downstairs with the other members. The first worker was offered 25 cents an hour pay increase with no changes to other conditions. I thanked Alister and said the member wanted to think about the offer some more.

The second member came in and she was offered 40 cents an hour because of what Alister said was her “sterling work”. After a brief adjournment I thanked Alister for the offer and said that this member wanted to talk to her partner about the offer.

When the third member came through the door Alister adopted a different tone. He said that this member was being offered 40 cents an hour on condition that he signed his individual employment contract before he left the room.

When we refused this demand, Alister stood up from behind his desk, told us to get out and then pushed past us and some other members waiting on the stairs as he headed to the factory floor. Once inside the factory he shouted “Its stopwork time. Stopwork meeting. Get out!” running around the factory floor pushing members towards the door and locking it behind him.

Lockout or strike?

We had a meeting with the members outside of the factory and all decided to return first thing the next morning for a picket.

When we returned the next morning there was a big sign on the factory door telling everyone that no work would be offered until the strike was over and each worker give a guarantee that it would not be repeated. If a worker wanted to return to work they needed to leave a letter in the office accepting these two demands and the company would then consider each letter and decide whether the worker would be welcomed back or not.

After a quick discussion over the definition of “strike” and “lockout” the members quickly came to the conclusion that the boss pushing you out the door and locking it was to any casual observer a fairly good example of a lockout.

The picket started that day and continued through until our day in the Employment Court on 15 September 1994. There was a good turnout of picketers each day and because an International Labour Organisation delegation was in Wellington that week investigating a complaint about the Employment Contracts Act, the action drew a lot of attention.

Representatives from other unions and from the NZ Council of Trade Unions joined the picket line as did Labour Employment Relations Spokesperson Steve Maharey and Alliance Party Leader Jim Anderton.

On 15 September 1994 the Employment Court granted the union an interim injunction against the Romanos lockout and the day later the union members marched back into the factory without any sign of Alister Kirby.

Nothing changes

That does not mean that there was any change in Alister Kirby’s position about collective bargaining and collective agreements.

While there were attempts by the union to gain a collective agreement they were continually frustrated by the actions of Romanos.

In August 1995 Romanos received another blow when the Employment Court decided that Lofi Tupu was unjustifiably dismissed and was awarded just over $10,000 in compensation.

It was the last straw for Alister Kirby. He had a heart attack just before the decision was released and the threat to his mortality opened the door to the union finally completing a collective agreement, with a 3% wage increase, an extra week’s annual leave and a set of standard conditions including accepted union rights.

However, this was a short pyrrhic victory as many of the original Romanos union activists soon left and the factory relocated to Auckland. Within a year of the move the Romanos business in Auckland closed as well and it was rumoured that Alister Kirby had experienced a second fatal heart attack.

Union organising at Romanos Pizzas only lasted about three years, but it was a sentinel event in our organising under the Employment Contracts Act. With the large effort put in by the union in trying to organise a small site, the question was asked about why we started in the first place.

Although the Romanos dispute did not gain our members everything that they wanted, it showed everyone, including other employers, that despite the Employment Contracts Act workers would still fight for their rights and there were no benefits in taking on a united workforce if doing so ended up destroying your business.