Category: Blog

The Struggle for Relevant Daily Pay

By John Ryall, former E tū Assistant National Secretary

It seems obvious that if you are forced to have a day off sick you should be paid from your employer what you would have normally received if you had worked on that day.

However, this has not always been the case and it has only been through an amendment to the Holidays Act in 2003 that a separate right to sick leave of 5 days a year was created and that this was to be paid at “relevant daily pay”.

Not many people will realise though that 20 years before then the orderlies at Wellington, Hutt and Silverstream Hospitals fought for the same right.

The orderlies were then employed under the New Zealand Hospital Domestic Workers Award, which up until 1979 awarded them 10 days sick leave per year to be paid at ordinary pay.

The orderlies worked six days a week and their sixth day always occurred on either Saturday or Sunday at Wellington Hospital and at the other hospitals could occur on any day of the week depending on the roster. They were required to work the six days. If they were sick on any of their first five rostered days they would be paid eight hours at their ordinary hourly rate and if they were sick on their sixth day they would be paid nothing.

Despite the occasional grumble that they should be paid sick leave for all six days the roster worked well.

Award Sick Leave Changes

In 1979 the Hospital Boards agreed to a union claim to replace the Award sick leave clause with another one that appeared in most employment agreements in the state service. This gave the orderlies a more generous entitlement with an accumulation of untaken sick leave up to 365 days.

However, the more generous entitlement came with a catch. If you were a Monday to Friday worker and were sick for a week then you were paid five days sick leave but lost seven days from your entitlement.

Clause 14 (a) of the Award provided:

Where an employee is granted leave of absence on account of sickness or injury not arising out of and in the course of his employment he shall be entitled to full pay according to the scale set out in the schedule hereunder.

And clause 14 (d) provided:

Sick leave with full pay for each period allowed shall be reckoned in consecutive days inclusive of Saturdays, Sundays and statutory holidays.

Before the ink was even dry on the newly printed Award Wellington Hospital orderlies started complaining about the non-payment of sick leave on their sixth shift, which always occurred on either a Saturday or Sunday.

Their complaint was that if they were sick on a Friday and a Monday then the new Award removed an entitlement of four days, but they were only paid sick leave for two days rather than the three days for which they were arguing payment.

The Wellington Hospital Personnel Manager wrote to the Wellington Hospital Board Industrial Relations Manager Rino Tirikatene, who responded

Should Wellington Hospital conditionally require orderly staff to be permanently engaged on a six day shift weekly roster then each one of those six working days becomes applicable for sick leave with pay providing such staff have genuine sick leave and an adequate number of days entitlement

Issue Won’t Go Away

Despite this memo nothing was done and when I commenced work as an organiser in June 1982 the sick leave issue was still bubbling away.

The Wellington Hospital orderlies raised the issue again with the hospital management in 1983 but were told that they didn’t have to work the sixth day if they did not want to.

In 1984 the power dynamic changed with the election of some new active Wellington Hospital orderly delegates, who were not scared to take direct action to fix outstanding grievances.

A number of strikes were held over the re-negotiation of the Award and despite the head delegate Alan Wakefield being dismissed, the compulsory conference held to determine the outcome of his dismissal also heard stories of the orderly’s sick leave grievance.

In July 1985 the Wellington Hospital Deputy Director of Administration agreed to part of the claim. While the payment of sick leave for the sixth shift was not agreed, the Wellington Hospital Board would not in future deduct this shift off the orderly’s sick leave entitlement.

This move did not shut the issue down but gave it more steam.

In September 1985 the Wellington Hotel and Hospital Workers Union wrote to the Department of Labour for their opinion on payment of sick leave for the sixth shift under the NZ Hospital Domestic Workers Award. Their response supported the union view that the orderlies should be paid.

The Department of Labour opinion, which was circulated far and wide across the Wellington Hospital Board workforce, shook the Board managers.

Union Proposes Disputes Committee

The union, picking up on this state of affairs, proposed to the Wellington Hospital Board that the union and board should urgently meet as a Disputes Committee, with an agreed chair, put forward both sides in the dispute and allow the chair to issue a decision which would not be appealable.

In November 1985 the Board wrote to the union and agreed for a Disputes Committee Chair to give advice to the parties but not to make a binding, non-appealable decision on the matter.

The Board though did agree that if any orderly was absent through illness on a Friday and a Monday then in future they would be paid at ordinary rates of pay three sick days and not two.

This offer was taken back to the Wellington, Hutt and Silverstream Hospital orderlies and was unanimously rejected. The demands had hardened up and there was going to be no settlement without the payment of overtime when sick on the sixth day and the orderlies threatened to go on strike unless their demands were met.

Wellington Hospital orderlies delegate Jock McMahon posed the key question:

“Why do we have to lose pay when we are sick? We are a hospital caring for sick people and we should be paid for our sick leave the amount we would have earned if we had not been sick. We don’t want to be forced back to work when we are sick because we cannot afford to be off work.”

The threats of strike action led to an early meeting of the Disputes Committee, under Chairman Jim Newman, but no resolution was arrived at. After some delay the chairman referred the matter to the Arbitration Court in June 1986.

The Arbitration Court heard the case in October 1987 and sought to answer two questions:

  1. If a worker employed under the Award is granted leave of absence due to sickness under clause 14 and if that worker is required to work a six day week as a team of his or her employment, does the employer have to pay sick pay for the sixth day?
  2. If the answer to the question is yes, is the amount the board has to pay defined as “full pay” under the same clause, the amount the worker would have earned had he or she been working that day?

The union was represented by lawyer Sandra Moran. It was the first time I had seen Sandra in action. She was relatively small, very well dressed and looked like she would not hurt a fly. However, she had a steely tone to her voice that cut like a rapier and her cross-examination was so ruthless the employer witnesses just wanted to agree with everything she said in order to quickly depart the witness stand.

The Court took just less than two weeks to deliver its judgement in writing, affirming that the orderlies were required to work a 48 hour week and when sick must be paid “the monies he or she would have received had he/she performed his/her normal work on his/her sixth day on the roster irrespective of the day of the week on which the sixth day happens to fall.”

Attention Turns to Other Workers

While the union focussed on organising around the six year’s backpay for the Wellington, Hutt and Silverstream Hospital orderlies and other workers (such as a group of Wellington Hospital cleaners who worked a six-day week), it also turned its attention to other workers who were not receiving “full pay” when they were sick. This included public hospital orderlies, cleaners and food service workers who were sick on public holidays and weekends (where it was not their sixth shift) both in Wellington and throughout the country.

The actions of the Wellington Hotel and Hospital Workers Union to extend the case beyond the sixth-shift orderlies was not without controversy both within the Hotel and Hospital Workers Federation and amongst other unions.

While the words of Wellington Hospital orderlies delegate Jock McMahon portrayed a simple concept of sickness not automatically leading to a reduction in pay others saw the concept as too radical and challenging, perhaps because of the potential cost to the public health system of six-years backpay for tens of thousands of health workers, including doctors and nurses.

The Wellington Hotel and Hospital Workers Union returned to the Labour Court in October 1988 on behalf of a weekend cleaner and a kitchenhand on a rotating roster that included work on the weekends. Both these workers were paid ordinary pay when sick on the weekends. They claimed that “full pay” included their weekend penal rates and other allowances in addition to their ordinary pay.

Judge Castle, who had also heard the earlier case, said in his judgement that extending the full pay argument beyond six-day workers was “inevitable” and ruled that it was not proper to interpret “full pay” as anything else than the “agreed contracted pay with the worker”.

Both the newly created Area Health Boards and the hospital contractors refused to settle the 1990 NZ Hospital and Area Health Boards Domestic Workers Award without the elimination of the words “full pay” from the sick leave clause, the abolition of the travel time clause and the removal of the union veto over the employment of part-time workers.

With the writing on the wall for the fourth Labour Government and the National Party already secretly drafting the Employment Contracts Act, the union conceded full pay providing all members received hundreds of thousands of dollars in backpay and the date for its removal was extended out to 26 August 1992, which co-incidentally was the day after the expiry of the last national award.

While hospital workers had to wait another 11 years before the fifth Labour Government amended the Holidays Act to allow for relevant daily pay rather than ordinary pay for sick leave, the change would not have been possible unless the Wellington Hospital orderlies had identified an injustice and fought for its removal.

John Ryall: Bright Stars, Comets, and Union Activism

John Ryall is the former Assistant National Secretary of E tū. This article was originally published in the Labour History Project Bulletin.

In my long experience as a union organiser I have met many memorable people who became great leaders in their workplaces, in their communities and in wider social movements.

Some of these leaders were active in the union for decades and some of them for only a short time.

While I have fond memories of all of them, the ones that appeared like comets in the night sky, shone brightly and then disappeared, have always fascinated me.

One of these people was a Wellington Hospital orderly called Alan Wakefield.

I had been appointed as an organiser with the Wellington Hotel and Hospital Workers Union in June 1982 and the largest site in my organising patch was Wellington Hospital.

Wellington Hospital, along with three other public hospitals in my patch (Porirua, Kenepuru and Paraparaumu Hospitals), were run by the Wellington Hospital Board.

The Hotel and Hospital Workers Union had about 700 members in these four hospitals working as food service workers, orderlies, security workers and cleaners.

The Wellington Hospital orderlies were an interesting male-dominant group who complained about everything, but unlike the female-dominant cleaners and food service workers were reluctant to take collective action to get their issues resolved.

My first experience of them was of them moaning about why they had to be in the same national award as the cleaners and food service workers. They felt their jobs were more important and valuable than cleaning or kitchen work and they would do better by themselves. Much of this was in response to the equal pay settlement in the 1970s, where the female rates had been removed affecting the historical relativities between cleaners, kitchenhands and orderlies.

The day after I commenced employment with the Hotel and Hospital Workers Union the then Prime Minister Muldoon imposed a wage freeze, which lasted until his Government was defeated in June 1984. During this period it was illegal to negotiate awards or other collective agreements that increased pay rates.

The wage freeze did not mean that there were no workplace disputes. The orderlies had issues about the interpretation of their current award conditions and about their increasing workloads as the Wellington Hospital Board tried to make savings by non-replacement of staff who left employment.

In late 1984, with the incoming Labour Government’s removal of the wage freeze, the union was gearing up to renegotiate the Hospital Domestic Workers Award, which covered the Wellington Hospital orderlies.

I arranged meetings at the public hospitals in the Wellington area (including the Hutt, Silverstream and Elderslea Hospitals) in order to discuss the improvements that members wanted to make to the award conditions. There was a separate paid meeting for the Wellington Hospital orderlies, held by arrangement with the management at the shift changeover time in the afternoon. Prior to the meeting I had discussed the importance of the meeting with the workplace delegates and relied on them to ensure all of the 60 orderlies attended the meeting.

When I turned up the meeting there were only five members present, including three who were elected delegates. To my disappointment the delegates didn’t seem too concerned about the turnout saying that the Head Orderly wouldn’t release members from their duties and they would simply relay any information back to the members.

I continued the meeting, which was held in the orderlies tea room, with the five members. Near the end of the meeting an orderly walked into the tea room heading for the change area. He stopped and said “what’s going on here?” I explained that this was a union meeting in preparation for the union negotiating improvements to wage rates and working conditions. He asked why he hadn’t been told of the meeting. I looked at the delegates and said “never mind, you are here now, so let’s go back and quickly give you a briefing on what is going on.”

At the end of the meeting I introduced myself to the new orderly, whose name was Alan Wakefield. He had only commenced employment as an orderly in July 1984 but was full of energy about the action that was needed to improve the orderly wages and employment conditions.

I indicated to him that nothing was going to change unless we developed some delegates who were able to excite the members about winning better conditions. He had been a workplace delegate for the Drivers Union at a previous job. He agreed with my assessment and said he would talk to others and see what he could do.

A week later he phoned me to say that he had talked to the members, held a meeting in the tea room and they had elected him as one of the orderly delegates. He had a list of issues that the orderlies wanted to pursue in the award negotiations, which were due to take place in Auckland in January 1985.

Alan and a number of other delegates from Wellington were keen to attend the award negotiations in Auckland and so I arranged with the union secretary for us to hire a van and to transport 8 delegates to Auckland, who would be “observers” at the award negotiations.

The appearance of our 8 Wellington delegates was a shock to the Hotel and Hospital Workers Federation National Secretary and award advocate Russ Revell, who was not used to having a boisterous contingent of members in the back row while he was politely advocating our position to the Hospital Boards and contractors.

At that time the Government covered the accommodation costs for the small number of union negotiators, who were called assessors, but not the costs for observers. We made up for this by changing the rooms around and doubling up on people in the rooms so that the observers had somewhere to sleep and also smuggled them in a hotel breakfast.

What made it worse from Russ Revell’s perspective was that our contingent at later negotiations became even bigger as the other observer delegates from other parts of the country started pushing for more representation from their own areas.

The award negotiations occurred after a three year wage freeze and the 80 separate claims for improvements that the union put up to the Hospital Boards and hospital contractors did not impress them, especially when they thought there had been agreement between the central bodies of employers and unions for a “compressed” wage round.

The Hospital Boards and hospital contractors argued that because the award was “state-linked” and domestic workers in the state sector were paid less than the rates in the existing 1982 award that a wage reduction was in order. They followed this up with a demand that the union’s existing role in having to give consent to the introduction of part-time work must be removed. After two days the negotiations broke down.

I think the employers thought that they had the power to get what they wanted and that the union would eventually rollover to their demands without them having to offer any pay increase that was greater than the tiny increases that were then then being applied in the core state sector.

Alan didn’t wait for the union to call meetings to consider the outcome of the award negotiations. On his first day back at work he called a meeting with the orderlies and they rejected the employer position. He phoned me to report on the meeting and said the orderlies wanted to immediately put 24-hour bans on certain duties, including transporting dead bodies from the wards to the mortuary.

I gave him advice and encouragement and told him to go ahead and I would meet him at the hospital the next day.

By the time I arrived at the hospital the next day it was all on. I was summoned into the Head Orderly’s office and asked whether the union had given authority for the mortuary ban. I said that the ban was in line with us seeking an award allowance for the transportation of dead bodies and the action was a protest about the employers’ position.

They said they would not accept any bans unless notice was delivered to them in writing from myself or the union secretary, Peter Cullen. I said I was happy to do this.

The orderlies were excited about the action that was being taken and were in favour of extending it. They had full confidence in Alan’s leadership and felt proud of standing up for improved employment conditions.

Alan was always on the move taking up issues on behalf of members and calling meetings when the response was not positive. The Head and Deputy Head Orderlies had previously operated the department as if they were running a slave ship and when the slave mutiny commenced they were not happy. Any minor complaint about Alan was escalated to a major event and the disciplinary meetings and warnings started running thick and fast.

They complained that Alan did not come into the Head Orderly’s office for a quiet chat as the previous delegate had done and that there were too many meetings. Alan was direct and whether you were the lowest paid person in the hospital or the highest paid he would tell you what he thought. Telling the Deputy Head Orderly to “shut up” when he was being lectured about what he should nor should not be doing led to a warning for verbal abuse.  Another one followed near the end of February 1985.

As the award dispute continued the orderlies implemented a series of rolling bans on the keeping of records, the transfer of bodies to the mortuary, the movement of supplies from the stores and the handling of dirty linen and rubbish.

Alan played a prominent part in directing these activities and made frequent appearances on the radio and other media outlets talking about the dispute. The action at Wellington Hospital started spreading to other parts of the region and the rest of the country.

The union’s intention was to place pressure on the hospital management, but not to stop the operation of essential services.

During the middle of this action Wellington Hospital management employed some students as temporary nurse aides. These workers were not union members and had been employed specifically to do the work covered by the bans. Tension arose with the orderlies and Alan, as the main delegate, was right in the thick of it arguing that the strike breakers should be removed and holding orderly meetings to get support for this demand.

One of these meetings ended with the orderlies walking off the job for the rest of their shift causing chaos and confusion but leading to the hospital management withdrawing the strike breakers.

Alan was also involved in trying to stop the hospital management using volunteers to get around an orderly ban on the delivery of flowers to wards. His discussion with the volunteers was resented by the management and led to threats of further disciplinary action.

The Hospital Domestic Workers Award was finally settled on 6 March 1985 with a substantial wage increase and some improvements to allowances, including the creation of a new allowance for the transportation of dead bodies to the mortuary.

While the ratification of award settlements was not required under the existing employment legislation, Alan and I both agreed that a report back meeting and vote by the members was important.

Alan approached the Deputy Director of Administration John Joyce about holding a paid stopwork meeting to discuss the award settlement and some other issues about sick leave and weekend rostering. He agreed that a meeting could be held on Friday 22 March 1985.

However, when Alan talked over the details with the Acting Head Orderly an argument ensued over how the hospital would be staffed during the half-hour paid meeting. The Acting Head Orderly insisted that in addition to the Head and Deputy Head Orderly a further nine orderlies would need to remain on duty to cover the 30 day-shift orderlies who were on duty on that day. Alan argued that this was too many for a half-hour meeting and that the orderlies would keep their pagers on in case of any emergencies.

The arguments over the relief staffing during the meeting continued up to the time of the meeting, with no agreement. Alan was warned that if the meeting went ahead without the nine orderlies remaining on duty he would face disciplinary action.

With no agreement in place all of the orderlies went to the meeting.

Very wisely, at the commencement of the meeting Alan told the orderlies of the arguments about the staffing levels and about the threat that he could be dismissed if the meeting went ahead without the relief staffing that the management required. He asked the orderlies whether they wanted to go ahead with the meeting or for nine orderlies to go back to their posts. The orderlies moved a resolution that given there was no agreement reached on the relief staffing they would go ahead with the meeting involving all union members.

At the end of the meeting Alan and another delegate, George Kahu went to John Joyce’s office and met with him, the Acting Head Orderly and the Hospital Personnel Manager. John Joyce asked Alan whether he had complied with his instructions about the relief staff and when Alan replied that he had not, Alan was dismissed.

Alan and the other delegate returned to the room where the orderlies had remained following the meeting, and informed them of his dismissal. The orderlies voted to strike until Alan was reinstated.

The orderlies strike went on for 11 days, the longest strike of orderlies that I have ever been involved.

While the orderlies picketed the hospital and had support from both the cleaners and the food service workers refusing to carry out their duties and donating money to keep them fed, the hospital management was organising staff and outside volunteers to carry out the orderly work and running the line that Alan had been dismissed because of his alleged outrageous behaviour and aggression towards other staff members.

While Hotel and Hospital Workers Union members at both Porirua and Hutt Hospital took limited strike action to protest Alan’s dismissal the nurses and other workers at Wellington Hospital were not unionised in the same way as they are now and there was little support. The union was looking for other options to get Alan and the orderlies back to work.

The then Minister of Labour, Stan Rodger, was approached by the union and after much negotiation between the union and the Wellington Hospital Board, he called a compulsory conference under the chairmanship of Dunedin mediator Walter Grills, to enquire into all the circumstances of Alan’s dismissal and decide whether the dismissal was justified.

The terms of reference, which had been agreed between the parties and was confirmed in a formal Ministerial letter, stipulated that Alan would be off-the-job on full pay during the compulsory conference and if he was judged to be unjustifiably dismissed he would be immediately reinstated to his position at the hospital. The terms of reference also gave the power for the chair to make any other recommendations about relationships between delegates and orderlies department management.

When the Wellington Hospital Board agreed to put Alan on full pay during the period of the compulsory conference they must have been confident that this would only be for a short period and that Alan’s dismissal would be upheld.

The union and employer parties met with Walter Grills for four days at the beginning of May 1985. The union argued that the compulsory conference was not about the dismissal of an orderly but was about delegate victimisation and the refusal of the Wellington Hospital Directorate to accept independent union organisation at Wellington Hospital. The union presented statements from 10 witnesses supporting Alan Wakefield and condemning the approach of Wellington Hospital management towards union representatives.While the Wellington Hospital Board was expecting a quick decision, Walter Grills did not send out his written decision until 18 October 1985. By this time Alan had been off work on full pay for nearly eight months.

The decision of the compulsory conference was that Alan Wakefield had been unjustifiably dismissed because as a union delegate he was merely carrying out the instructions of his members in going ahead with a union meeting without leaving on the appropriate level of relief staff. If he was dismissed as a result of carrying out his duty as a union delegate, under instruction from his members, then he would have been discriminated against because of his union position.

The decision though came with a backhanded slap to the union about allowing strike action without the union’s general secretary being involved, about not pursuing arbitration in resolving disputes in essential services rather than resorting to strike action and indicating that if the Wellington Hospital Board had sought damages against the union, they would have been awarded.

However, none of this mattered as Alan Wakefield had been reinstated. While the Wellington Hospital management were appalled at the reinstatement, the orderlies assembled outside the hospital and carried Alan back into work on their shoulders, accompanying him to the Head Orderly’s office to sign in for work.

Alan had not enjoyed being off work for eight months as he was a very active type. Orderlies need to be fit because their job requires walking for long distances every day. When he came back to work it was not quite the same.

While he had been off work another orderly, Jock McMahon, had stepped forward to take over the delegate’s role. Jock was just as staunch as Alan but had a longer trade union history and had the negotiation and leadership skills to match it. Alan recognised his able replacement and stepped down as the delegate

Alan worked at the hospital for another couple of months and then quietly resigned.

The comet had shone brightly, the role of the union and its delegates had been reinforced and those who followed were in a far better position than if the light in the sky had never appeared.