Employment Relations (Secret Ballot for Strikes) Amendment Bill

DARIEN FENTON Link to this

I am a very fair person and I am generous. I was interested to go to the Transport and Industrial Relations Committee to find out whether there really was a problem on this issue. Guess what? We found out there was no problem. Not a single worker came to the select committee to say there was a problem and that workers were being forced into strike action because there was no secret ballot for strikes. We also found out that most unions already have this process and carry it out where practical. But it is not always practical and we have to remember that we live in a world that is way, way different from 1980 when the Hon Tau Henare was the worst union organiser in the world. He worked for the—

DARIEN FENTON Link to this

Not so generous, and I am sorry but I just could not help myself. We were talking about a time when we had compulsory trade unionism, and times were different then. That is Tau Henare’s experience and he used to go into workplaces and say: “Pull the pin. Everyone out! Tell those clerical workers”—those very militant clerical workers for whom he was the union organiser—“they have to pull the pin and take strike action.” I am sure there was the odd clerical worker who rang up Syd Jackson, who was the secretary of the clerical workers union at that time and said: “Tau Henare came in and told us that we have to go on strike today, and we don’t agree with that.” That was like 30 years ago, but times have changed.

The House finished a very interesting debate tonight about freedom of association and the rights of people to freely associate. I say to the ACT members who asserted, in their comments about freedom of association, that the right was just as strong on the other side of the argument, which is freedom not to associate. Actually, when it comes to workers’ rights and International Labour Organization conventions the right is much stronger in terms of freedom of association; absolutely much stronger.

We are talking about amending this principal Act, and wasting a lot of time on a members’ day, at the eleventh hour of Parliament, when there are a lot of other priorities or other things that we could be doing. For example, I was contacted tonight by someone in Christchurch and she said to me that she was not complaining but was only just surviving. She said she was a bit low at the moment. The car had blown up and she had to take a day off work to get the car organised to be fixed. She did not know where the money was coming from. There were no groceries this pay—or next, no doubt—but she did need a car to get to work. She wondered how she was going to cope with this. This bill would not be a priority for that person, and it would not be a priority for many, many people.

In fact, as I said, no one came to the select committee to say that Parliament needed to make this amendment to the Employment Relations Act. We have amended this principal Act on a number of occasions during this Parliament, all of them very unfortunate and very unnecessary amendments. They are unfortunate and unnecessary, and what we are now seeing, and what I hear every day through my email in-box, are the consequences of the amendments that this Government has made to the Employment Relations Act.

First of all, we had the 90-day trial period for workplaces of fewer than 20 employees. That amendment was deemed to be a success, and the Minister of Labour has gone around trumpeting that somehow that created 13,000 jobs. That is just rubbish. The research is so flawed. It is just rubbish to look at a time period of 3 months after that legislation was passed and say: “Oh, well, people employed in small workplaces have not lost as many jobs as people employed in larger workplaces and somehow that has created a whole lot of jobs.” On that basis, both the Minister and the Prime Minister went out and said they were going to extend the legislation. They have extended it now to all workplaces.

Of course they have amended the principal Act around a whole lot of other things, including the access of workers to their union organisers. I think this bill raises a really interesting question. In fact, it is the subject of a Supplementary Order Paper that I have introduced, which is about access to workplaces. This Government has restricted the right of workers to talk to their union organisers at work. What is more, it has restricted the right of workers to talk to their union organisers even when there is a health and safety matter involved. So one of the Supplementary Order Papers I will be introducing to amend the principal Act will state that where there is a requirement to hold a secret ballot for strikes, union organisers will not be prevented from coming into the workplace. Can members imagine it? We have a law on the one hand that says there has to be a secret ballot for strikes, then on the other hand we have a restriction whereby union organisers cannot come in and conduct that ballot. How ridiculous is that! I am really looking forward to the member in the chair supporting that Supplementary Order Paper when we get to that part of the bill, a little bit further along.

As I said, on going back to the priorities, I thought it was an interesting day in Parliament today, and not only in the general debate, where we heard some silly stuff. I do want to respond, if I may, to the Hon Jonathan Coleman, who made some allegations about things that I, allegedly, have been saying. He talked about his own electorate, but actually I work in the Northcote electorate, and I know there are people coming through my office door every day who are sick and tired of this Government amending the Employment Relations Act, and who are concerned about this silly bill—this unnecessary bill, this waste of time—when we have all of the other problems that are going on in the country.

We have just spent a lot of time debating a bill about voluntary student membership, but nobody wants it—nobody wants it. It is Heather’s last hurrah, and thank goodness for that. Maybe this bill is Tau’s last hurrah, although of course he will not get it through in this Parliament. Thank goodness for that! Just look at the member in the chair; he does not care. He is going “Oh, oh, we don’t care!”, and that shows the commitment he has to the bill. I have not picked up any—any—real passion from the member since we went through the select committee process, where he found out that no one supported the amendment of the principal Act. No one supported it; it was some mad idea that he got from the 1980s when he was the worst union organiser in the world. That is some mad idea, some residue; that party has not been able to produce a single worker who has said there is a problem.

The fact is that we have unions today that are grown-up, responsible, and modern, and that deal with their members in a democratic way. They have rules that deal with these things. Times have changed; things are different to the time when Tau Henare was rampaging around as a union organiser for the clerical workers union, on the payroll of low-paid clerical workers, and trying to pretend he was important.

On the back of that he has become the most famous waka-jumper in the world, as well as the worst union organiser in the world. He went, of course, from the New Zealand First Party, and I remember—because I live out at Waitakere—the signs, I tell Tau Henare: “New Zealand First will not go with National”, which of course meant that those members would not amend the principal Act, but away he went.

Hon TAU HENARE Link to this

That member over there just happens to dislike Sir Peter Leitch so much she calls him the “Mad Butcher”, but tonight there is no doubt that Darien Fenton is now known as just plain mad.

But let us get serious about this. They said something here that I need to respond to, and that is—

Hon TAU HENARE Link to this

—where did this—well, I will pick it up. I will pick it up.

Hon TAU HENARE Link to this

I will pick it up. Well, actually it is not me who needs to lift their game. If I was on 28 percent, yeah—OK, I would. But we are not. We are on 50-odd percent. It was a miner’s wife—a miner’s wife—who asked the question: why could her husband not have a secret ballot when the miners withdrew their labour? Why could they not have a secret ballot?

Hon TAU HENARE Link to this

Oh, OK. So it is all right for everybody else, but it is not all right when one person says “Actually, I’d like a secret ballot, because I want to be able to have the same rights and privileges as electors in this country. They go behind closed doors, or behind a screen, and they freely make their choice whether it is yes, or no.”

Hon TAU HENARE Link to this

If that is what that member over there dislikes, well then, that is fine. She should go and live in 1930s Germany. But the fact of the matter is that everybody should have the right to vote without that sort of encumbrance on them. That is all I have to say and, most probably, all I have to say for the rest of these proceedings.

CAROL BEAUMONT Link to this

Thank you very much. That is entirely what I was going to do, as I said when I stood up, I say to the whip opposite. Let us talk about the principal Act, shall we? Clause 3, of course, is “Principal Act amended”. I will make sure that I do a very thorough analysis of the principal Act for the whip opposite.

The principal Act that is being amended is the Employment Relations Act. It is very important legislation, because it was a fundamental shift from what was one of the worst pieces of legislation this country has seen. That legislation caused genuine grief and trouble, and led to a low-wage economy. It was, of course, the Employment Contracts Act.

The Employment Relations Act 2000, which is the principal Act this bill seeks to amend, is a substantial Act of Parliament. I thought I would just talk a little about the objects of that Act, then link to how this bill relates to those objects, I guess, and talk about the implications of those objects for this bill. The object of the Employment Relations Act, under section 3, is to “build productive employment relationships through the promotion of good faith in all aspects of the employment environment and of the employment relationship—”. That is done by certain things, such as “by recognising that employment relationships must be built not only on the implied mutual obligations of trust and confidence, but also on a legislative requirement for good faith behaviour;”. This is relevant to strikes, so I will link these two things together.

Let me finish by talking about the other objects of the principal Act that we are amending. Secondly, it achieves its object “by acknowledging and addressing the inherent inequality of power in employment relationships;”. I do not think that members on the other side of the Chamber quite grasp that: there is actually an inherent power imbalance in employment relationships.

Thirdly, the bill serves to promote collective bargaining. The strike question is absolutely linked to collective bargaining, because the right to strike under the Employment Relations Act is really constrained to two main areas. The first is around collective bargaining. When one is in the bargaining period, one has the legal right to strike under New Zealand law. The second main occasion when one has the legal right to strike in New Zealand is over a health and safety matter. The objects of the Act also include “protecting the integrity of individual choice”, which might be relevant. Members opposite might say that that is what this bill is about, so we will come back to that as well. Further objects are “promoting mediation as the primary problem-solving mechanism; and … reducing the need for judicial intervention;”. Those are very interesting, and I will come back to those.

The other main object is to “promote observance in New Zealand of the principles underlying International Labour Organisation Convention 87 on Freedom of Association, and Convention 98 on the Right to Organise and Bargain Collectively.” As I have said, strikes are related to the question of bargaining collectively.

Let us look at what those objects mean in relation to this bill, which serves to amend the principal Act, the Employment Relations Act. I know for a fact that the good-faith relationships that are referred to in the object of this Act apply in multiple ways. For example, a union has a good-faith relationship with its members, a union has a good-faith relationship with the employer, and so on. An employer has a good-faith relationship with employers’ organisations. It is kind of balanced; all parties have good-faith obligations to each other.

The reason I point that out is that unions do have a good-faith obligation to their members. For argument’s sake, let us say that a union official was to force a member to take strike action. I do not believe that that is actually possible, and I have been a union organiser myself, but let us say that it is possible. In fact, that member has the absolute right under the Employment Relations Act to say that their union is not acting in good faith towards them, because it was forcing them to do something they did not want to do. The member would actually have a legal remedy for breach of good faith. That exists already.

The other thing that is particularly interesting is the issue of reducing the need for judicial intervention. Because the Employment Relations Act is about relationships—the wording of the bill was quite deliberate—the idea was that the employment relationship would be based on good faith, and parties would try to deal with any problems at the lowest possible level. That was part of the underpinning basis of this legislation. That meant that the problem was ideally dealt with on the shop floor by having a conversation, and if it could not be sorted that way, both parties would go into mediation or get some assistance like that, as opposed to getting into a legal situation.

One of the real concerns that many of us had is that the bill that Tau Henare is putting up will actually give employers the right to take legal challenges against a union’s strike ballot. There have been some quite heavily contested collective bargaining situations in New Zealand’s history, where workers are well organised, they are in a union, and they are trying to improve their lot, but unfortunately the employer is not coming to the party. They are not making progress, and the workers decide to take strike action to put a bit of pressure on. That is one of the two main reasons, as I said earlier, that someone can legally take strike action in New Zealand. Under this legislation, they would conduct their ballot. Actually, as my colleague and friend Darien Fenton has said, that would be the case anyway because that is what unions already do. Under this legislation, they would conduct their ballot. This amendment bill will give the employer the right to then intervene and have a legal argument about whether that ballot was conducted correctly. We know—and this was drawn to the select committee’s attention; I am not making this up—that in a number of quite significant cases overseas that is precisely what has happened. Employers have used that sort of process to intervene judicially, to go through a very long and costly legal challenge around the strike ballot, and to actually undermine the workers’ ability to organise and collectively bargain. That is one of the genuine worries that people have about this bill.

The Employment Relations (Secret Ballot for Strikes) Amendment Bill amends the principal Act, the Employment Relations Act, but in my opinion it is fundamentally at odds with the objects of the Act it is amending. I do not know—I am no expert on these things—but it seems pretty odd to amend an Act in a way that is completely counter to the objects of that Act.

Just to reinforce that point, it explicitly says in section 3(a)(vi) of the principal Act, the Employment Relations Act, that the object of the Act is to reduce the need for judicial intervention. My contention is that this bill potentially undermines that section in the Employment Relations Act. Certainly it is unnecessary, given the provisions in section 3(a)(i) about employment relationships being based on good faith, and the requirement for a union to act in good faith towards its members. Arguably, and quite compellingly, there is a clear requirement on unions to have a democratic process by which to make a decision around taking strike action. Funnily enough, that is what they do. Anybody who is involved in employment relations will know that in collective bargaining when the issue of strike action comes up, there will be a secret ballot. So this bill is unnecessary.

I think it is very interesting that none of the members opposite—ACT or National—have thought about the other side of the equation. As I said, the Act itself is quite balanced. It puts these requirements on unions and workers but also on employers. Yet this bill fails to put any requirements on employers.

LYNNE PILLAY Link to this

A very old-fashioned way of requiring—

LYNNE PILLAY Link to this

—no idea whatsoever—a rather long, undulated process for doing what unions already do. It is also a costly process. The reality is that, frankly, workers on the rare time—well, it is not so rare now that the National Government is in—did go on strike, and union officials like me treated it very seriously. One is asking workers to cut a day’s, or whatever’s, pay. That is not something that any union official takes lightly in these harsh economic times. So of course there is a secret ballot.

This presumption from Tau Henare—who is actually, without being too mean about it, a little teensy bit of a bully—is that that is the way union officials operate as well.

LYNNE PILLAY Link to this

Thank you, Mr Chair. I actually will focus on clause 3. I thought that was what I was really doing.

I was talking about amending the Employment Relations Act, which is based on relationships, and bringing in a Draconian, old-fashioned—I am sure that is acceptable to the member—way of dealing with the relationships. That is at odds with the principles of the Act. It is interesting because if we look at the amendments to the Employment Relations Act, I feel quite a bit of pride that the amendments that were made under Labour actually improved the Act—they improved it. Then we saw something like the “90-Day Fire at Will Act”, which was actually an amendment to the Employment Relations Act—am I right there?

LYNNE PILLAY Link to this

So I am still on track here. That amendment is at odds with the very principal Act that is being amended. That is my point.

I am very interested for the member who has put this bill before the House to take a call on this and perhaps reassure the Committee or try to convince us in some way or another just what it is all about. It just does not make sense. If the member is willing to take a call, I think we could go into much more detail about the Act that is being amended. Perhaps the member would like to take a call and explain what the Employment Relations Act means to him. Perhaps members on the other side of the House, instead of flippantly taking closure motions, will actually stand up and take a call.

DARIEN FENTON Link to this

Thank you, Mr Chair, for that explanation. Let us talk about the purpose of the bill. I am happy to do that. The purpose of the bill is to require unions to hold a secret ballot of their members to approve a strike before undertaking any strike action. I want to understand why this purpose clause is necessary. What is the mischief that we are trying to cure? We heard from various parties in the Transport and Industrial Relations Committee that there was no mischief to cure, and that the bill crushes a gnat with an anvil. There is no problem.

The purpose clause apparently prevents union members from pressuring other union members into striking. Tau Henare said it came from his time as a union organiser in the 1980s. I do not want to keep repeating our allegations about his time in the 1980s, but he said he stood in front of workers before a “show of hands” vote with a presence that would have made them think twice about voting “no”. I say again that that was the 1980s. But is that really—

DARIEN FENTON Link to this

That was Tau Henare too. Is that really a problem in 21st century New Zealand? Is it really a problem in 21st century New Zealand unions? The member in the chair, the Hon Tau Henare, talked about a miner’s wife. There was a press release from a miner’s wife. An anecdotal report, as I understand it, behind the purpose of this bill was that a West Coast miner’s wife was blasting the union because it failed to hold a secret ballot. But I also understand that the union involved was the Amalgamated Engineering, Printing and Manufacturing Union. As a matter of interest, that is the union that represents the miners in mines like Pike River. Dreadful consequences have gone on there. If only there been a strike over health and safety in Pike River, we may not, perhaps, have had to have an amendment to the Act in which the member is saying that unions should hold a secret ballot for strikes.

I say on that point, though—if I may while we are talking about this—that I am pleased that during the select committee process the member did listen to the submissions where people talked about the restrictions the purpose would place on secret ballots for health and safety, and what a concern that was. I am pleased that he has taken that on board and that that has been included in the bill. The select committee said that that amendment was good.

But even if under this bill there had been no secret ballot, the member, under the purpose of this bill, would have had a valid complaint against the union. The union has it in its rules. Its rules, as do the rules of many unions, already require there to be a secret ballot. For example, the rules of my own union, the Service and Food Workers Union, say that any member can call for a secret ballot on anything—not just strike action but any action at all, whether it is election of officers, expenditure, or anything else—provided 10 percent of the members sign a petition. Many rules already cover what the purpose of this bill, which is in clause 4, purports to do, so there is no need to have this legislation. There is no need. No union organiser that I know in this day and age would attempt to organise a strike without a secret ballot.

I think clause 4 assumes that workers are really stupid and that they do not have a mind of their own. When workers go on strike we are talking about people walking off the job and forfeiting their salary or their wages for the day. That is a big call that they make. I think it is actually quite insulting to say in the 21st century that workers are so stupid and so pathetic that they cannot even stand up for themselves. We hear that from National members all the time, do we not? Is that not what we hear from the Minister of Labour? We hear that the Labour market is very flexible, that people know their rights, and so on. With clause 4, the purpose clause, this bill is imposing a 1980s solution in the 21st century.

We heard an interesting thing in the select committee, and I know it from my own experience. The only accusations that I can recall are of union organisers attempting to dissuade workers from going on strike. It is very ironical that it is one of the accusations that we hear. One of the things I think the member in the chair does not understand is how much things have changed. Unions in workplaces bring a kind of discipline that we did not see in the Hon Tau Henare’s time in the 1980s. It is different. Far from the situation where a union organiser goes out and says: “We should all go on strike. Pull the pin and let’s go.”, we often see union organisers meeting with the members and trying to work through the offer in a reasonable way, because it is mostly about collective bargaining. The biggest problem unions have is trying to persuade the odd disaffected member who wants to take a more militant approach.

Currently the Employment Relations Act does not require unions to hold secret ballots before striking, but this is the usual practice in most unions. As we heard in the select committee, most unions already have that practice in their rules. Requiring unions to hold a secret ballot vote is not unusual, but there are some practical difficulties with it. I think the biggest objection to the purpose clause is the imposition of a requirement of unions to hold secret ballots, when unions are democratic organisations. They have rules that are bound by the Employment Relations Act, and they have to demonstrate through the Employment Relations Act that those rules are democratic. They have a whole range of things.

The purpose of this bill would have been easily amended, easily fixed, and perhaps would have met the objectives of the member in the chair if we had simply said that every union must have rules for determining the process when there is going to be a strike or industrial action. A strike under the Employment Relations Act is much more than just stopping or withdrawing labour; it is often going slow or a whole range of things. There are a whole lot of different ways of taking strike action under the Employment Relations Act.

The other part about this purpose, of course, is that it picks on one side of the employment relationship; it completely ignores the other side of the employment relationship. The other part of the Employment Relations Act is that employers can lock out workers. They can make a decision to take industrial action. They can take industrial action and lock out workers. In fact, I have been involved in some of those lockouts. They are pretty vicious. But there is no corresponding duty under the purpose of this bill to require either employers or shareholders to ballot their members about imposing lockout action.

That is one of the amendments I am proposing. It seems fair enough to me. If we have to live with this, why should it not be an equal duty? Why should there not be a balanced approach to the purpose of this bill? If unions are required to hold secret ballots, shareholders should be required to hold secret ballots if they are proposing to lock out their workers. The consequences of a lockout are just as devastating as the consequences of a strike. As I said, unions take this very, very seriously. There have been some pretty vicious lockouts in recent times. There is no requirement on employers to take the views of their shareholders and investors into consideration. I think that is wrong, and I would like to see the purpose of this bill changed. If we are going to require secret ballots of workers, why not require secret ballots of shareholders to approve a lockout? It is a corresponding action.

We are talking about fairness and balance. I know that the Government likes to talk about balanced employment relationships. Let us do the right thing by changing this purpose clause. Thank you.

PHIL TWYFORD Link to this

Does Mr Smith really think so? We jointly addressed a new group of union members at a rather flash Auckland hotel. I remember Mr Henare at the hotel, persuading these new workers of the benefits of the Clerical Workers Union and what a great redundancy agreement they would be entitled to if they joined the union. It strikes me as very unlikely that the Clerical Workers Union in the 1980s would have been the kind of union that bullied and bludgeoned its members into taking strike action. I invite the member to take a call, draw on his personal experiences in the 1980s, and tell us how the Clerical Workers Union bullied and bludgeoned its members into taking strike action. I find that very unlikely. But I am happy to be persuaded. I am happy to be contradicted on that.

PHIL TWYFORD Link to this

Thank you. We are discussing the purpose of the Employment Relations (Secret Ballot for Strikes) Amendment Bill, which is to require unions to hold a secret vote of their members to approve a strike before undertaking any strike action. My point is—I do have one, and it echoes comments that my colleagues have already made—that this bill is essentially a solution looking for a problem. It is a throwback. Looking at the purpose of the bill, it is clear that it is a throwback to a bygone era, a previous century, as you, Mr Chairperson, said yourself. I think that the political mentality of the member who brought this bill to the House reflects a view of industrial relations that was shaped in the Māngere Bridge dispute and in the BNZ dispute. It is from a bygone age. It no longer exists. The challenges of the 1970s and 1980s are no longer the challenges that face New Zealand workers and that face New Zealand firms and workplaces.

The bill requires unions to hold a secret ballot of their members to approve a strike, and I am completely baffled as to why the member thinks this is enough of a priority to bring a bill to this House, and to waste the time of this Parliament, the Parliament of New Zealand. Really, it is axe grinding on a huge scale. The member is basically trying to make an ideological point about industrial relations in this country. But no one—and, I suspect, not even the members on his side of the Chamber—has any particular enthusiasm or affection for this cause.

It reflects a one-sided and old-fashioned view of industrial relations that we should have left behind a long time ago in this country. It plays to some kind of cartoon stereotype of unions and employers in this country that no longer has any basis in reality. But it does tap into a deep anti-union sentiment that runs through some employers in this country. Some parts of the National Party and the right of politics in this country have made it their mission over the last 20 years to drive unions out of the economy and drive them out of New Zealand society. It is all there in the purpose clause.

The bill is completely oblivious to the real challenges facing New Zealand today. The real challenges are how we raise the productivity of our firms, how we increase the skill level of our workers, how we involve workers and tap into their creativity and ideas to actually improve the productivity and the innovation in New Zealand workplaces, and how we tackle the appalling levels of health and safety. These are the challenges that bedevil New Zealand firms, but this bill—

DARIEN FENTON Link to this

I know; I am very, very nice. But I accepted it. The member has been around a long time, and I accepted it in good faith.

DARIEN FENTON Link to this

Well, he rejected it. This amendment was put to the select committee, and he rejected it. He voted it down. The National members voted it down. It was put up as a compromise. We sought advice from the officials.

This amendment is a very easy way of fixing this issue. It will not be easy for unions, because they will still have to go through a process of changing their rules. They will still have to go to their members, who will vote on it, but it stops all the other bureaucratic and compliance nonsense that this bill imposes not only on unions but also on employers, because employers will now be checking up on this. There is a cost there. It is a silly thing. My amendment is an easy way out of the dilemma, and I think Labour is being extremely reasonable in this proposed amendment. I am not sure how unions feel about it; I have talked to them a little about it.

DARIEN FENTON Link to this

I have taken a punt. I know that unions will have to do some work, and it will cost them money, because they will have to have meetings, change the rules, and that sort of thing. But it is a fair way out of the mischief that the member seeks to solve. Union rules, under my amendment, will have to have a process for conducting a secret ballot if there is to be a strike of members. As I have said, for lots of unions there will not be a problem, because they already have a process in their rules, but it is a very, very simple way out of a problem. It gets past the “hammer to crack a tiny little nut” approach that the member’s bill takes, and it achieves the purpose of the bill—