The
Employment Relations Bill will, in July, progress through Parliament and become
the Employment Relations Act, replacing the Employment Contracts Act.
Even
the most reclusive Charter operator living in the remotest area must have heard
or read something about the up-coming changes in Employment Law. If you don’t
employ any staff then I guess you’re forgiven for thinking that you don’t
have to worry about it. In principle I agree with you, but just remember that
when you have steerageway on a vessel and you swing the wheel to Port, no matter
how far away the bow is from you – even on a Supertanker, sooner or later the
bow will pay off to Port. It’s a simple scientific principle called ‘cause
and effect’. You may not currently employ staff, but anything that effects or
changes profitability in the industry will sooner or later have an effect on you
too.
For
those of you who do employ staff, what then are the changes and how will they
affect you? Not in any order, and this is just the main ones, here we go:
Currently,
a group of workers can unite together if they want and negotiate a Collective
agreement with you, without using a Union to negotiate it for them and without
having to join a Union. It was called ‘Freedom of Association’. From July,
that right will cease to exist. Only a Union will be able to negotiate a
Collective agreement. Which means that if your employees want a Collective
agreement, they’re going to have to join ‘a’ Union. It might be the
Seafarers Union or it could be the Pastry makers Union – as long as it’s a
Union. They could, of course, register themselves as a Union and then
negotiate it themselves. Realistically, that’s not going to happen. If your
workers are currently on Individual contracts and wish to stay with that, they
can do so without having to join a Union. Let’s look at a possible scenario.
Let’s
say you have three deckhands on Individual contracts. One leaves, and you
replace him with a new deckhand, who just happens to be a member of the
Seafarers Union. He signs the Individual contract, but 8 months later when the
contracts come up for renewal, he convinces the other two that a Collective is
the way to go. Since he’s already a member of the Seafarers Union, suddenly
you are no longer dealing with three individual deckhands – you’re now
negotiating with the Union. At the first meeting, the Union negotiator plops on
the desk a copy of the Collective covering deckhands employed by a major Ferry
operator in Auckland and says ‘we want your guys on the same Collective’.
Welcome to ‘multi-enterprise bargaining’, folks. Now you’re being
asked to front the same wages, terms & conditions as are paid by a much
larger operation. In Auckland. And you’re in Taupo. Oh dear… This means of
course that if the Auckland workers go on strike, yours will too. Labour assures
us that this doesn’t lead to strike action on a nationwide front, but if you
follow the logic of multi-enterprise bargaining, then the weapon is there for
the using.
So,
in the meeting you protest that you can’t afford to pay the rates that the
large operator does. ‘Show us your books’, says the Union, and here’s the
next bit:
Requirement
for fair dealing:
Mischief
and deceit are possible and occur on either side of the negotiating table. If
someone deliberately sets out to deceive, then they will be successful some of
the time no matter how Draconian your legislation is. And as a small employer
myself, this next bit is pretty Draconian…
In
explanation of the expression ‘Fair Dealing’, the new Bill goes on to state
that both parties must deal fairly with each other – and in this they include
that the employer must, if asked, show the financial position of the company and
any and all future plans and strategies. It means opening the books to the Union
(the real set, not the ones you keep for IRD). Taken literally, this means that
if I had in my planning for this year the acquisition of another training
company, I have to tell my employee at the time we negotiate the contract. So in
other words, if I want to find out what Fuller’s strategies might be over the
next 12 months, and see their financial position, all I have to do is get a job
there as a deckhand, worm my way into Union Delegate position, wait for the next
negotiation and then agitate to see the books and plans. Mind you, that would
take a while. Probably easier to wait until nearer the time, and bribe the
existing Union delegate.
If
you do get into strife with an employee, and they decide to take a Personal
Grievance against you, at the moment they have 90 days to effect a Submission
of Grievance, formally advising you of the grievance. It could be done
verbally but usually it is by way of a letter or notice. This is intended to
show you the matter is serious, give you a chance to fix the problem without
legal action and costs, and (failing that) gives a legal start point & date
to the ensuing proceedings. If they don’t do this within 90 days, except in
rare circumstances, there is no Grievance (‘out of time’). The Employee
Relations Bill will, in one sweep, confer instant clairvoyancy on us all, since
it now says that the 90-day period exists ‘from the time that an employer
ought reasonably to have become aware that a Grievance exists’. Wow. Wonder
which bright spark dreamed that one up. I can just see every Employer asking
each staff member in turn every day ‘are you happy? Got a Grievance?’.
Ridiculous. Imagine the announcement over the PA system: “All those intending
to file Personal Grievances report to the Master in the wheelhouse by 0800”
Got
a Union delegate on your staff? Better put some extra money in the budget for
when he/she goes on a training course to learn how to file a Personal Grievance.
Yes team, the employer is required to provide leave for Employment Relations
Education. Oh, stick some more in the budget for four hours (all staff) per year
for stop-work meetings.
And
remember. If your staff has appointed a Union to represent them, from that
moment on, you can’t talk directly with your staff about terms &
conditions of employment or anything to do with the process or progress of any
negotiation. Under the ERB, the employer must allow Unions access to your staff
at reasonable times (‘reasonable’ is not defined) to recruit,
discuss Union business and monitor compliance with the Act or any
employment agreement…
Lastly,
here’s one for those of you Skippers who think you are independent contractors
– where you work mostly for one customer, and you give them a bill rather than
receive wages. Self-employed, yes? And the customer thinks they can discontinue
your services at a moments notice, right?
Er…
maybe not. Under the ERB, if you spend most of your time working for one
particular customer, you’re in danger of being considered an ‘employee’
and in return for receiving the protection of the ERB along with Holiday Pay and
able to claim for Unjustified Dismissal (I kid you not) you would also
presumably lose your ability to claim all those expenses and pay PAYE instead of
provisional tax. AAARGH!!!
In
my opinion, the ERB has been written with large employers in mind and forgetting
that some 70% of businesses in NZ employ less than 10 people. Multi-enterprise
bargaining (a cute name for possible national awards) fails to recognise that
businesses are not equally profitable. For the small employer who’s staff want
to join and work through a Union, we just have to hope that the Union will be
act in a reasonable manner. From July, those who are irresponsible will
certainly have the power to make life very miserable indeed. It’s two years
and eight months to the next election, my friends.
My
job is to teach (among other things) Employment Law, Contracts and Disciplinary
& Termination procedures. What I’ve seen in the last 9 years is that the
Employer perhaps had too much power in the negotiation process, but once
employed, the employee was protected too darned well, necessitating much
Employer time chewed up in procedural issues, and an epidemic unwillingness to
deal with poor performance.
I
support the concept of worker representation, for those workers who need it and
want it. I support the concept of Unions helping to ensure that those workers
are treated fairly, and maybe the ECA was weighted a bit too far in the
employer’s favour. There is good stuff in the ERB too, by the way. It’s just
that the bad totally outweighs the good, and the pendulum will swing too far
back the other way. Unchecked, we’ll be back in the 70’s, with Marsden B,
and the Freezing Works. Have we all forgotten the Hydrofoil, which sat on the
hard stand for God knows how many years because the Union said ‘you’ll have
4 deckhands’ and the Employer could only afford two?
Carpe
Diem
Steve Punter ANZIM,
Dip Bus (PMER), FHRINZ
Staff Training Associates Ltd, Auckland, New Zealand.
© Steve Punter 2001 All rights reserved by the author.