The Employment Relations (Continuity of Labour) Amendment Bill

June 13th, 2013 at 12:30 pm by David Farrar

has had pulled from the ballot his Employment Relations (Continuity of Labour) Amendment Bill. The purpose of the bill is:

to repeal section 97 of the Employment Relations Act 2000. Section 97 prevents the use of volunteers, contractors, or other casual employees by an employer during a strike or lockout

His rationale:

Any employment legislation needs to provide a balance between employers and employees to be fair. Section 97 creates an imbalance by providing with a significant legislative advantage during negotiations. The restrictions placed on employers preventing them from engaging temporary replacement labour to maintain business continuity duringa strike or lockout even extends to family members, volunteers, and willing workers from associated companies that may wish to work within an organisation to maintain business continuity. Restricting the ability of employers to engage temporary replacement labour can have a considerable impact on the productivity and financial viability of an organisation. These restrictions particularly affect the primary production processing industries where production cannot cease without considerable loss to a business.

As far as I’m aware, employees on strike can engage in other work, so it seems only fair employers can do much the same, and use temporary labour to keep revenue flowing. Otherwise a union action can cripple them.

Prior to the enactment of the Employment Relations Act 2000, no equivalent provision existed in any New Zealand employment legislation.

I’ll be interested to see what the situation is in other countries.

I think it is fair to say the the Labour Party will fight this bill with all their might.

UPDATE: It will be interesting to see how parties vote at first reading. We can assume National and ACT will vote in favour, and Labour, Greens and Mana against.

NZ First had this to say when the ERA was passed in 2000:

Part 8 – Clauses 97-111 – Strikes and Lockouts
Under these clauses employees are allowed to strike for a collective agreement, to obtain a multi-employer collective contract, and on the grounds of safety and health.

It prohibits an employer from using replacement labour during a strike but does not prohibit striking workers taking up other employment. This has the potential for a few employees to, in some circumstances, hold the employer, the industry, and sometimes the country, to ransom until their demands are met.

On the basis of their 2000 statement, one would expect they would at least vote for the bill at first reading so it can be considered by a select committee.

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61 Responses to “The Employment Relations (Continuity of Labour) Amendment Bill”

  1. toad (3,668 comments) says:

    I think it is fair to say the the Labour Party will fight this bill with all their might.

    As will the Greens. This will become known as the Scab Bill.

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  2. Nigel Kearney (864 comments) says:

    My only question is why this is a private member’s bill instead of a government bill.

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  3. b1gdaddynz (279 comments) says:

    The left will hate this…seems too sensible and fair for them to tolerate!

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  4. In Vino Veritas (136 comments) says:

    The Labour party is in effect the Union Party, nothing more, nothing less. Of course they’ll fight it, after all, the section was put in there to give Unions a negotiating advantage (in real terms, its called “holding to ransom”).

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  5. freedom101 (461 comments) says:

    Why does it take a National back bencher to do something after 5 years of National government that should have been done in the first year? What other pieces of legislation should have gone through in the first year that haven’t happened yet … waiting for Godot I think.

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  6. ginger_eejit (5 comments) says:

    Hiring of Temp, strike breaking, labour is a criminal offence is the UK:

    Regulation 7 of the Conduct of Employment Agencies and Employment Businesses Regulations 2003 (SI 2003/3319) precludes the provision of temporary workers to perform the duties normally performed by a worker who is taking part in a strike or other industrial action. An employment business supplying workers in these circumstances will be committing a criminal offence, and the employer could be found to be aiding and abetting that offence.
    The restriction does not apply if strike action is unofficial (ie is not endorsed by a union) or where the employment business providing the temporary worker does not know about the industrial action and has no reasonable grounds for knowing about the industrial action.
    The Regulations do not prevent an employer from directly employing temporary employees on fixed-term contracts to cover the work of employees on strike, rather than hiring agency workers.

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  7. KapitiCoast (114 comments) says:

    #1 policy from day 1 should have been to make Unions collect their ‘dues’ from their members rather than the employer/company deducting it , if this were actioned earlier the unions would have had half the members they do now across the board of all unions.

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  8. Ultima (29 comments) says:

    The act of striking, i.e. leaving one’s job temporary to make a point, is an act only performed by the unions, specifically the old-style trade unions. To my knowledge no other employee based groups like the Law Society representing lawyers, the many organisations of IT geeks, or the chartered accountants etc…, use the method of striking as part of their employment negotiations. Most people, employees and employers, just use common sense. If striking is an effective method more people would be using it. What about employers? Why don’t the likes of the EMA get their members to go on strike?

    So why do we have a law to protect this ineffective, not used by many, disruptive and costly method of employment negotiation in the first place?

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  9. Harriet (4,495 comments) says:

    Fuuuuuuuuck…………Labour will play this out for all it’s worth.

    We’ll hear of every threat to NZ under the sun.

    I’m looking forward to the bit about Margret Thatcher still being alive and well! :cool:

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  10. toad (3,668 comments) says:

    @Harriet 1:33 pm

    Currently because unions are registered as an ‘association’ they can legally lie to the company, media, government and their union members without facing much legal restraint.

    No they can’t. Both unions and employers are subject to the good faith bargaining requirements of the Employment Relations Act. If a union were to start to do that (i.e. bargain in bad faith), the employer has redress in the Employment Court.

    BTW, in my experience, it is usually employers that bargain in bad faith – e.g. Ports of Auckland Limited last year.

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  11. ginger_eejit (5 comments) says:

    Ultima – We’ve had recent examples of employers using their industrial era methods of negotiating – notably the Ports of Auckland lockout last year

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  12. Adolf Fiinkensein (2,787 comments) says:

    The Young Nats will have grins from ear to ear.

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  13. David Garrett (6,307 comments) says:

    ultima: Actually I disagree with you. Withdrawal of labour has traditionally been the one real weapon the working class has had against the employer, which in most cases will have more bargaining power than the individual employee. that imbalance of bargaining power is frequently not the case with professionals like lawyers and accountants. But that weapon has always been sparingly used for a reason – that to do so involves loss of income. Often, in the big strikes in the past, the unions eventually “won” some paltry pay increase, but when the sums were done, and the weeks or months of lost wages taken into account, the victory was a pryrrhic one – except for the pricks at Trades Hall, who never lost any pay because theirs came from union dues.

    All this bill does is return us to the status quo ante the last Labour government: if you strike you lose money, and you run the risk of the dastardly employer finding a way round the pain by hiring contractors etc. No real surprise that the socialists should have included this clause when they got their grubby hands on the levers of power last. As others have said, the real surprise is this wasnt undone in the “100 days of action” the Key government kicked off with. I can say with certainty that ACT would have supported them.

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  14. David Farrar (1,853 comments) says:

    Adolf: i think the Young Nats have already claimed credit for the ballot victory :-)

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  15. OneTrack (2,562 comments) says:

    BTW, in my experience, it is usually unions that bargain in bad faith – e.g. Ports of Auckland Limited last year.

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  16. ginger_eejit (5 comments) says:

    OneTrack – were the unions leaking the personal circumstances of PoA management to the press last year? I hardly call an employer smearing striking workers by leaking their personal details to the ‘press’ good faith bargaining! http://www.stuff.co.nz/business/industries/6571000/Leak-accusation-further-sours-ports-stoush

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  17. Than (425 comments) says:

    ginger_eejit – Whereas going on TV and lying about your treatment by an employer is acting in good faith? How about physically shoving and threatening non-striking employees attempting to get to work?

    This bill is long overdue, now we only have to hope it has the numbers to pass.

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  18. Ultima (29 comments) says:

    @ginger_eejit
    Precisely my point, is the lockout an effective method? Is there a law protecting and encouraging lockouts for employers?

    @David Garrett
    It may have been effective in the past but is it now? From what I can see in the Ports of Auckland and Meat Workers Union actions as examples, none of the lockouts and strikes are effective methods. The most destructive strike, in terms of life threatening, was the nurses strike. How effective was that? Yet, if strikes can be destructive to the population, why do we have laws to encourage it?

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  19. ginger_eejit (5 comments) says:

    Than – are you referring to union leadership or striking workers shoving and threatening non striking workers. I’m not sure if the behaviour of the individual strikers always necessarily reflects the good faith negotiating position or lack thereof of union leadership. As toy your other point, one party’s lie is another party’s spin. I think there was plenty from both sides during the PoA debacle. If what this individual worker’s claim were so wrong, better to take the moral high ground and issue a statement along the lines of “our own records do not corroborate the statements made” or such rather than leaking the workers personnel records to Whale Oil!

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  20. ginger_eejit (5 comments) says:

    Ultima: S83 & S85 ERA 2000 Act gives definition and the protections to a legal lockout, S86 defines unlawful strikes & lockouts, S91 prohibits lockouts in essential services and S97 covers performance of duties of striking or locked out workers (basically allows employers to redeploy existing staff to cover the work if they agree, or engage people to do the work for the duration of the strike/lockout if it is required to be done for H&S reasons)

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  21. David Garrett (6,307 comments) says:

    Ultima: I didn’t say strikes were a good tactic – in fact when the sums are all done, the employees (“workers” is so last century) have almost always lost.

    But I do agree that the strike is the most potent weapon a relatively unskilled workforce – particularly one involving danger – has.

    I had some peripheral involvement in the major meatworker’s strikes of the early 80′s….The unions were warned time and again that the result of squeezing the golden goose just that bitty too hard would be not a bigger egg, but to kill it. The union officials laughed, and said it would never happen. The closure of Patea removed the smiles…some of those towns have still not recovered, and probably never will.

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  22. big bruv (13,200 comments) says:

    Toad

    The “scab bill”..I love it!

    I for one would be proud to wear the label scab.

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  23. David Garrett (6,307 comments) says:

    BB: “Scab” is not just last century, it’s 19th firkin century! I think it had some meaning, once…sorta lost its power after the sexual revolution, when “scabies” was just something you got some powder for…

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  24. RRM (9,414 comments) says:

    Bring on the scab bill, and bring on the scabs! :-)

    If you don’t like the position then fuck off and find a better job, if you can.

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  25. David Garrett (6,307 comments) says:

    RRM: …e-mail your address to d.garrett@xtra…and I will get a membership form for the party of freedom and individual responsibility sent to you tout de suite….(that’s right, isnt it? Can’t be bothered with all this Google malarkey…)

    but unions have their place…the story is too long to recount here, but I was involved in a classic David and Goliath battle in my first ever proper job…the Maui gas line from Oanui to Auckland in 1975….if it wasn’t for the union, God knows what would have happend to these poor country boys from Mokau…it’ll get a chapter in the book…

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  26. David Garrett (6,307 comments) says:

    John Colquehon (spelling is wrong)…an old style old fashioned dour Scot who was the Labourer’s Union man in New Plymouth in 1975…and another fucking good guy, Alan Batley a Maori All Black, if memory serves, who refused to play along, and sack the “communist student” who had stuck up for the lads….Great memories…and unions at their best….Such a pity that the Waitara Valley 10 years later was such a different experience…

    What Union have you been a member of Toady? I’ll bet it wasnt one where you got your little hands dirty…

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  27. Rightandleft (627 comments) says:

    If strikes are generally lost by the striking workers, there’s no need for the bill. All this bill would do is to create the potential for more acrimony in future strikes. And while the term scab may have a long history it is definitely still well used among unionists today.

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  28. David Garrett (6,307 comments) says:

    Ok rightie…without googling, tell us the defintion of “scab”….your time starts NOW….

    and some little anonymous weasel has, with great virility, pressed the DOWN button on my last…for what, you fucking onanist? Does my very name send you into a righteous frenzy?

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  29. Johnboy (14,857 comments) says:

    David G. Re: last nights exchange. Why can’t you name N-NZ?

    After all we all know who he is. It’s public knowledge.

    Who said you can’t?

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  30. Johnboy (14,857 comments) says:

    I just gave you an up in case you thought I was a c**t! :)

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  31. David Garrett (6,307 comments) says:

    It was strikes – and complete disregard for actual as opposed to theoretical health and safety risks – that finished me and unions…when strikes happened, they didn’t affect me much…my mortgage was being paid by someone renting my house…and I had the side income from the Westown Hotel to keep me in groceries and pin money…the people they hurt was the poor honest tradesmen with a wife and two…the very people the unions were supposed to be looking after…

    JB: Because DPF wants to avoid possible litigation from a two time killer…that doesn’t identify him; as I said last night, much to many people’s surprise, there are more than 20 of those….but Judith says he’s totally rehabilitated, and he’s really sorry he killed two people, so that’s OK….

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  32. Johnboy (14,857 comments) says:

    The silly thing about that is that his name is on public record and there are concerns that his behaviour could result in his lifetime parole being revoked David. What is DPF thinking of……..free burgers? :)

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  33. Johnboy (14,857 comments) says:

    He seems to be watching DG and giving downers! :)

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  34. cha (3,779 comments) says:

    Ronald Blyth?.

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  35. David Garrett (6,307 comments) says:

    well, since someone else had brung it up..here is a list of two time killers in NZ…in no particular order, a totally random selection as it were…Dennis Luke (first to be convicted of two murders, one after the other); Rufus Junior Marsh; Brian Ronald McDonald; William Johanssen; Bill Bayley; ??? (Can’t remember his Christian name) Sederaka; Pauesi Brown….take your pick me boys…one of those thinks he has the right to post here – under a pseud of course – and threaten our genial host with legal action if anyone names the prick…

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  36. Johnboy (14,857 comments) says:

    http://www.nzhistory.net.nz/culture/nz-crime-timeline

    http://www.safe-nz.org.nz/Data/mcdonaldbrian.htm

    Why do we fuck around like this?

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  37. Johnboy (14,857 comments) says:

    It’s all history, on-record for those that look so can some one tell me why we pussy-foot around?

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  38. mikenmild (10,600 comments) says:

    Technically, he seems to be a manslaughterer and a murderer, rather than a double murderer…

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  39. Johnboy (14,857 comments) says:

    You are sounding like a left-wing apologist Milkey.

    Keep supporting HOBM! :)

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  40. Kea (11,878 comments) says:

    Johnboy that entire timeline of crime in NZ looks like a sunny Sunday afternoon in Johannesburg. And people celebrate the rainbow nation as a success. !

    Things are not so bad here.

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  41. Johnboy (14,857 comments) says:

    Once we get rid of Norman/HOBM supporters I’m sure things will improve Kea! :)

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  42. mikenmild (10,600 comments) says:

    I was talking to a police officer a couple of years ago who had moved here from South Africa. He liked NZ because “there’s no crime here”!

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  43. Johnboy (14,857 comments) says:

    He obviously never knew your politics Milkey! :)

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  44. bhudson (4,734 comments) says:

    one of those thinks he has the right to post here – under a pseud of course – and threaten our genial host with legal action if anyone names the prick…

    Hmm. And just how is that request for a judicial review of a non-reviewable Cabinet decision going, I wonder?

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  45. David Garrett (6,307 comments) says:

    Mikey: That all goes to show it’s all relative…does anyone remember the Clive James roast of NZ a few years back? He featured some contemporary form of “Police 10-7″…the featured crime that provided Clive with much amusement was the theft (its only conversion if you leave it after a drive) of a Mk II Cortina…much mirth at our expense… A Mk II Cortina!! That was a notable crime; how amusing….

    The reality is that we once had about 10 homicides per year (“homicides” includes both murder and manslaughter) … and when I say we “once had”, I am talking of 1950, not 1850….dickheads like Prof. Pratt tell us that that is Ok since “it’s much worse in America”…that is still so,…but so what?

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  46. Nostalgia-NZ (4,896 comments) says:

    ‘Hmm. And just how is that request for a judicial review of a non-reviewable Cabinet decision going, I wonder?’

    It’s due to be heard in the Auckland High Court bhudson.’ Even though, according to you, it couldn’t happen. The Crown have not objected to the validity of the review. Which incidentally, is not a review of a ‘Cabinet decision,’ try to keep up.

    There’s a couple of other ‘little people’ due to fight tonight live on TV, one of whom was apparently advocating a ‘super majority’ of Parliamentary votes, or some other such nonsense to explain why a law change was needed to ‘capture’ something like of .75% appeal rate of settling claims a 2nd time where the parties hadn’t been clearly identified in the first settlement.

    So to the point of the thread, probably not the private member’s bill that the Government needed to come out of the hat at this time.

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  47. Johnboy (14,857 comments) says:

    Evening N-NZ. What your advice regarding 65 grains of IMR 4831 behind 1 1/2 ounces of number 6 shot? :)

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  48. Nostalgia-NZ (4,896 comments) says:

    Point it up your bottom Johnboy, you’ll go off like a rocket – just like always.

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  49. Johnboy (14,857 comments) says:

    I knew I could get a sensible answer from a fellow that has used the load in earnest! :)

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  50. David Garrett (6,307 comments) says:

    Yes indeed Johnboy…you could also ask the honourable gentlemen what length of drop a person of his height and weight would have been “given” – because such was the terminology – if he had come into the sights of one Albert Pierrepoint….(6’3″ in my case if anyone should be curious)…

    But of course it’s all academic…Judith has decreed that that person has atoned for depriving a young woman of all the joys and sorrows of life after age 17…

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  51. Johnboy (14,857 comments) says:

    The fellow is a dickhead DG.

    Any sensible folk would know that DuPont IMR 4831 is a slow burning magnum rifle powder totally unsuited to shotgun applications! :)

    Nice to see him exposed for all to see though eh! :)

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  52. Kea (11,878 comments) says:

    Johnboy, good luck packing 65 grains of anything into a shotgun shell, though it should make a good load for around-town.

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  53. Nostalgia-NZ (4,896 comments) says:

    Interesting night for the little folk. No doubt there’ll be a run on chemist shops for more dummies tomorrow.

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  54. Johnboy (14,857 comments) says:

    You’ve come out at last Nosty. Cleared by your parole officer were you? :)

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  55. Kea (11,878 comments) says:

    Nostalgia-NZ , come on I think the tone is pretty high for this hour of the night. Usually we are down to AGW and Red calling everyone prog fuckwits :)

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  56. Johnboy (14,857 comments) says:

    “Interesting night for the little folk.”

    Extract from police files:

    Brian Ronald McDonald….Height. Five foot seven inches! :)

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  57. Nostalgia-NZ (4,896 comments) says:

    Good work Johnboy you must have proved something to somebody, probably that you can’t win using intellect, humour or height. Actually the dwarfs had more style and dignity than you, and didn’t need to boast about an attraction to sheep.

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  58. David Garrett (6,307 comments) says:

    Crikey….comments all still there…havent you been whining to the Head yet?

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  59. Johnboy (14,857 comments) says:

    Nosty is getting upset David. Chalk that up to a victorious result! :)

    Never again feel that you should moderate your tone when public safety is at stake.

    Call: Johnboy@sheepshaggers.kinky.wainui

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  60. Johnboy (14,857 comments) says:

    He got up really early to check too! :)

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  61. SPC (5,334 comments) says:

    If it was equality determining employment law, if the employer has hire and fire – then the employee can leave a job (within 3-6 months) and get the dole while looking for another. Thus full labour mobility.

    Of course the inability to get the dole – when leaving a job if it is not a good fit, discourages take up of new jobs and means labour market rigidity. This means employers can hold down wages and retain workers anyway.

    Adding to this the ability to use union action during wage negotiations as a time to bring in replacement labour, simply means unions offer nothing to the employee. And the employee without the unions being beholden to the employer for any wage increase. If they leave because there is no wage increase for years, then they do not get the dole while looking for a new job. Thus employers can retain staff for years with no wage increase – not until the MW catches up.

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