Union nonsense

April 27th, 2013 at 11:00 am by David Farrar

Stuff reports:

Council of Trade Unions president Helen Kelly said many of the changes appeared technical, but taken together they were the biggest assault on workers rights since the early 90s.

I thought that was the 90 day trial period? Remember all the claims of how it would lead to horrific abuse? Well – where are the horror stories? we were the only country in the OECD without a proper trial period law, and they claimed it was the end of humanity or something when it came in.

The changes would not only affect union members but hundreds of thousands of other workers covered by collective agreements, she said.

What nonsense. It is illegal for anyone to be on a collective agreement unless they are a union member. So what Kelly has said is impossible. There are no workers on a collective contract who are not union members.

The changes are here:

  •  The Authority will have to either provide an oral determination at the end of its hearing, followed by a written record within three months
  • The extension of flexible working arrangements so any employee, not just caregivers, can ask for flexible work. Employees will also be able to ask for flexible work arrangements from the start of their employment.
  • A return to the original position in the Employment Relations Act where the duty of good faith does not require the parties to conclude a collective agreement. Instead, the Employment Relations Authority may declare whether collective bargaining has concluded.
  • Allowing employers to opt out of multi-employer bargaining.
  • Allowing for partial pay reductions in cases of partial strike action.
  • Removing the 30-day rule that forces non-union members to take union terms and conditions.
  • Changes to Part 6A so employers have greater certainty over the transfer of employees in certain industries such as cleaning, catering, orderly and laundry – if there is a restructuring or change in the contracted service provider. Small to medium-sized enterprises with fewer than 20 employees will also be exempt.
  • Greater clarity as to what confidential information employers are required to provide to affected workers in situations such as dismissal or redundancy.
  • Parties will be required to provide notice of a strike or lock-out.

Most of these changes were in National’s 2011 election policy. It is good they are keeping their word and implementing their policy.

Very pleased to see the 30 day rule is going. It is a stealth form of compulsory unionism where new staff are forced onto the collective contract and will become union members unless they opt out after 30 days.

My view is that union membership decisions should be purely between the employee and a union. if an employee wants to join a union they should go to their website, pay the fee, and join up.

UPDATE: To clarify the Employment Relations Act defines a collective agreement as being between an employer and a union covering at least two employees. Only a union can be party to a collective contract. The law previously allowed any group of employees to negotiate a collective contract.

Non union members can have the same terms as a collective contract in their individual contract, but they are de facto union members who still have to pay union fees – they just don’t get a vote. This is what has the unions so worried – they’ll lose the income from new employees who are forced into paying them fees if they do not opt out.

 

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23 Responses to “Union nonsense”

  1. Manolo (14,179 comments) says:

    Comrade Kelly is a chip off the old block: Labour red to the core.
    She’s a fearmonger supreme, who neither recognises nor accepts that the time for unions has passed in our country.

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  2. dave (821 comments) says:

    if it is illegal for employers to treat employees differently because they are union member, why then is it also illegal for an employer to put an employee on a collective agreement unless they are a union member?

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  3. itstricky (2,025 comments) says:

    Where is you citation to say that it is illegal for anyone to be on a collective contract but -not- be part of a union? I can tell you this wasn’t the case 10 years ago. What law bought about that change?

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  4. Graeme Edgeler (2,972 comments) says:

    The changes would not only affect union members but hundreds of thousands of other workers covered by collective agreements, she said.

    What nonsense. It is illegal for anyone to be on a collective agreement unless they are a union member. So what Kelly has said is impossible.

    DPF – you are clearly wrong. Indeed, so obviously wrong that you in fact discuss the bit of the law that says you are wrong. All new employees in workplaces with collective agreements are covered by them for 30 days. Such workers are covered by collective agreements, and are not union members:

    Very pleased to see the 30 day rule is going. It is a stealth form of compulsory unionism where new staff are forced onto the collective contract and will become union members unless they opt out after 30 days. – DPF

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  5. mandk (1,033 comments) says:

    Not only do unions depress the pay and conditions of their own members through their stupidity, they also actively seek to depress the pay and conditions of those who are not members.

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  6. peterwn (3,338 comments) says:

    itstricky – There is no requirement to be a union member if on a collective agreement. However if there is a relevant collective agreement it is binding on all relevant employees. The employees on that agreement may vote by secret ballot to levy a ‘bargaining fee’ on non-union members payable to the union. The bargaining fee may not exceed the union membership fee. The effect of this is you effectively pay ‘union fees’ whether or not you are a union member – the union would not be concerned with this aspect – it would no doubt prefer that right wing troublemakers stay out of the union but still pay the money.

    See:
    http://www.legislation.govt.nz/act/public/2000/0024/latest/DLM59913.html

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  7. burt (7,436 comments) says:

    I like Mike Smith @ thestandard comparing withholding capital with withholding labour. The dim-bulb unionist incapable of understanding withholding labour for negotiating is like withholding payment for a discount.

    I’m thinking people and investment in infrastructure aren’t quite the same and that they should be treated the same in law, but I’m not a unionist… Perhaps refusing to act in accordance with a contract is the same as not risking capital in a lefty world where you are obliged to agree with everything suggested by the red party and resist everything from the blue party.

    If Mike Smith thinks commercial contract law and employment law should be more similar … Then we have just proven he’s a dim bulb follower of ideology rather than a caring unionist wanting the best for workers.

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  8. dime (10,221 comments) says:

    “Removing the 30-day rule that forces non-union members to take union terms and conditions.” – so thats whats upsetting them right?

    leftys love when shit is compulsory

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  9. Nookin (3,571 comments) says:

    Graeme
    To be fair to DPF, I am not altogether Helen Kelly was referring to those temporarily covered during the initial 30 day period when she was talking about the hundreds of thousands of non-union members covered by collective agreements.

    The very definition of “collective agreement” necessarily involves a union and, consequently, union membership.

    “collective agreement means an agreement that is binding on—
    (a)1 or more unions; and
    (b)1 or more employers; and
    (c)2 or more employees”

    If anything, DPF may have indulged in over generalisation but the basic tenet of his observation is not “wrong”.

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  10. itstricky (2,025 comments) says:

    Graeme, peterwn,

    Thanks for the clarification.

    I knew it wasn’t that simple.

    You can be on a collective contract without being a union member. I have, myself, been in this position before (without the extra payment to the union). Just wondering what changed that in the last 10 years. Obviously nothing.

    It would be good to see DPF correct his obviously wrong statements. To claim it is illegal is well over the top.

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  11. Nookin (3,571 comments) says:

    The other point to note is that the provision relating to the 30 days applies where an a new employee enters into an individual employment agreement. The individual employment agreement effectively contains the terms of the collective agreement during the 1st 30 days. The employee does not become a party to the collective agreement nor does the employee become a union member.

    The mechanism is there to ensure that a connection is made between the union and the employee and to ensure that the employee has the opportunity to join the union.

    See the following section:

    “At the time when the employee enters into the individual employment agreement with an employer, the employer must—

    (a)inform the employee—

    (i)that the collective agreement exists and covers work to be done by the employee; and

    (ii)that the employee may join the union that is a party to the collective agreement; and

    (iii)about how to contact the union; and

    (iv)that, if the employee joins the union, the employee will be bound by the collective agreement; and

    (v)that, during the first 30 days of the employee’s employment, the employee’s terms and conditions of employment comprise—

    (A)the terms and conditions in the collective agreement that would bind the employee if the employee were a member of the union; and

    (B)any additional terms and conditions mutually agreed to by the employee and employer that are not inconsistent with the terms and conditions in the collective agreement; and

    (b)give the employee a copy of the collective agreement; and

    (c)if the employee agrees, inform the union as soon as practicable that the employee has entered into the individual employment
    agreement with the employer.

    It is noteworthy that a non-union member cannot enforce a collective agreement.

    “56Application of collective agreement

    (1) A collective agreement that is in force binds and is enforceable by—

    (a)the union and the employer that are the parties to the agreement; and

    (b)employees—

    (i)who are employed by an employer that is a party to the agreement; and

    (ii)who are or become members of a union that is a party to the agreement; and

    (iii)whose work comes within the coverage clause in the agreement.

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  12. duggledog (1,628 comments) says:

    If she could just shut her mouth Helen Kelly would be reasonably smokin’

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  13. Paulus (2,712 comments) says:

    Why has it not been included that Union members pay their own Union dues, and not the employer on their behalf ?

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  14. joana (1,983 comments) says:

    Why has no one ever been charged with the attempt on Helen’s fathers life? Why has the murder of the caretaker..Trades Hall… Wgtn never been solved? Does anyone have any theories?

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  15. labrator (1,851 comments) says:

    I stopped reading at “Helen Kelly”.

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  16. David Garrett (7,701 comments) says:

    Joana: I’m not sure, but I think Dame Margaret Bazley might have been involved, back when she was a temptress for the CIA, working in New Zealand..

    I remember when the original 90 day trial law passed…It was the time I realised that the Socialists use “draconian” to describe any common sense piece of legislation they don’t like… In response to the Bill they began the “roll of shame”, which was to be an ever lengthening list of “shamed” employers who had mercilessly taken on employees, kept them for 89 days, sacked them, and then hired new victims. There was open laughter from our side of the House as speaker after speaker pointed out that in the real world employers don’t do this…for any number of reasons, most of them simply practical… training costs etc., and all the palaver that goes into hiring employees these days…

    When I last looked, the roll of shame had one name on it, a pharmacy operator from Stokes Valley who let his employee go after about 80 days in somewhat dubious circumstances. The clowns are all on another planet.

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  17. Nookin (3,571 comments) says:

    David:
    There have been a number of cases involving the attempted invocation of the 90 day rule. Stokes Pharmacy was one of the earlier ones. The Employment Relations Authority had already signalled that that the rule would be given a restrictive interpretation and did not exclude the operation of the good faith obligations.

    The significant point about Stokes Pharmacy is that the employer actually acted on legal advice and had consulted on the employment agreements. The employer went to the effort to comply. Unfortunately, the advice given was not adequate or was found to be incorrect.

    There have been a number of other cases as well. They involve employers who are more cavalier in their approach than Stokes Pharmacy.

    You might even like to follow up on this one:http://www.stuff.co.nz/business/industries/8602761/Boss-loses-40-000-after-firing-two-staff.

    This particular employer tried to rely on a 90 day trial period when there was not even a signed employment agreement. Although there have been examples of employers abusing the rule, they come to light because the rule is working. It is not a Draconian attack on the employee’s rights. The parties must agree on the application of the rule before employment commences. If the employee starts work at 9 a.m. on the 1st day and the employment agreement is presented at 10 a.m. then the employer is just plumb out of luck if the employer wants to rely on the trial period. By that stage, the employee is not a “new employee”.

    The good faith obligations of communication still apply.

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  18. David Garrett (7,701 comments) says:

    Nookin: Thanks for that update…I see that you dont disagree with my main points however, that the law is not in the least “draconian”, and the “roll of shame” is a very short document.

    And I have no problem with the provision being read strictly by the ERA given the frequent inequality of bargaining power in employer/employee relationships…one of several areas of law in which I didnt entirely agree with my ACT colleagues..

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  19. joana (1,983 comments) says:

    David..all sparks firing today.

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  20. itstricky (2,025 comments) says:

    Nookin says:

    The other point to note is that the provision relating to the 30 days applies where an a new employee enters into an individual employment agreement. The individual employment agreement effectively contains the terms of the collective agreement during the 1st 30 days. The employee does not become a party to the collective agreement nor does the employee become a union member.

    The mechanism is there to ensure that a connection is made between the union and the employee and to ensure that the employee has the opportunity to join the union.

    Yet, Mr Farrar says:

    It is a stealth form of compulsory unionism where new staff are forced onto the collective contract and will become union members

    So which is it? I smell a rat.

    This is what has the unions so worried – they’ll lose the income from new employees who are forced into paying them fees if they do not opt out.

    So, is he saying that the new, non-union, employee will start on an completely individual employment agreement, instead of a contract that is effectively a clone of the collective agreement?

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  21. itstricky (2,025 comments) says:

    Not only do unions depress the pay and conditions of their own members through their stupidity, they also actively seek to depress the pay and conditions of those who are not members.

    If all non-union members get the same contractual benefits as union members – I imagine that’s because the non-members have to also, effectively, pay for the legal services that the union provides.

    I don’t quite get how they “depress the pay and conditions of their own members”. The members sign up for legal and moral representation. The union provides that through contract renegotiations, amongst other things. You pay for what you get. Don’t see why that is an ultra-sombre and dreary “depress the pay and conditions” speil. I would call it providing a service that someone pays for.

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  22. mwood1935 (6 comments) says:

    DPF – your understanding of the 30 Day rule is completely wrong. Nothing about the rule turns the employee into a union member or obliges them to pay union fees. Under the rule, an employee who comes into a job will get covered by the CEA (if one is in place) for the first 30 days, but they are not considered a member of the union. Unless they explicitly join the union they do not pay fees, and they will revert to an Individual Agreement at the end of the 30 day period.

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  23. itstricky (2,025 comments) says:

    That’s what I’m thinking as well, I’ve had no evidence to suggest otherwise. I suspect he is suggesting that the Individual Agreement is the Collective one and the employee finishes the 30 days and then enters on that (and so must pay the non-union barganing fee). Still haven’t have that confirmed/denied.

    What I’m interested in is this -:

    There is some harping on about non-union members on collective “clone” agreements, paying the barganing fee and how the unions are worried about losing that income.

    It’s actually (as far as I can tell) a great advantage to the employeer to have the collective “clone” agreements. It means they just adjust everyone’s contract (union and non-union) once every time a renegotiation happens and they don’t have to spend a lot of time and money on adjusting or catering for individual contracts to meet every individual employee.

    Watch this space. There may all of a sudden be a whole bunch of larger employers jumping up and down complaining about the changes…

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