One of the first moves of Prime Minister John Key’s third term was to pass “significant” changes to the Employment Relations Act – the law that governs what rights you and your employer have at work.
Employers say the changes make work more flexible and are only legalising what is already happening in most workplaces. But unions say that workers’ rights are being undermined, and young people are particularly vulnerable. It comes down to a dispute over who employment law is meant to protect.
The changes will come into effect in March next year, and target collective bargaining, rest and meal break rules, continuity of employment and the duty of good faith.
Paige Gracie is 20, and has worked at a fast food restaurant for 18 months. Normally, she works anywhere between 10 and 30 hours, and worries that her hours can be cut at any time. Paige says she understands the need for flexibility, and that in that respect, the changes seem reasonable. But they’re not, she says, if they’re taking away workers’ rights.
One of the major changes is that workers who are new to a job won’t be covered by a collective agreement for the first 30 days of employment. That means they’re won’t start out entitled to the rights and benefits that unions have fought for. Paige says starting a new job is hard enough as it is.
“It’s quite frustrating, because [employers] do intimidate you,” she says. “It was quite a long time before I went to the union and knew that that’s what I could do and that they could help me.” Paige says she started out trying to do what her bosses asked, even when it didn’t seem right.
"It seems odd that when we're at school and university we’re told to take breaks regularaly when you’re studying because that makes you perform better. And yet when you enter the workplace there’s no automatic provision for breaks." - David Do Photo: Diego Opatowski
David Do, 29, agrees. A policy analyst in Wellington, he says being new to a workplace means people are keen to impress, and therefore less willing to challenge things. “That means you’re not on an equal footing, you don’t have as much power as you would have as if you were settled into the workplace. And I think that no matter where you start working, whether that’s in an office, or a factory, or a fast food outlet, you might not know all of the provisions and how things work, and you might be afraid to assert yourself if you’re not quite sure if your job is secure.”
Radio New Zealand’s Insight talks to some of those coping with insecure work and asks whether new labour laws will deliver the Government's promise of a high growth, high wage economy.
The Government says that the law changes are part of its commitment to flexibility, fairness, and choice in the labour market. Minister of Workplace Relations and Safety Michael Woodhouse said when the bill passed “flexible and balanced employment relations legislation is essential for business to grow while ensuring protections for workers are retained.”
But unions argue that when the Government says “flexibility”, it is talking about employers, not workers. Much of the media attention about the changes was focused on the right to take tea breaks. The changes mean that instead of a strict schedule of a 10 minute break for two to four hours of work and a meal break after four hours, breaks can be negotiated between workers and their bosses.
Employers and Manufacturers Association lawyer Ashleigh Nelson says the change is about providing reasonable work breaks. Not every employer can reasonably provide breaks, and not every employee wants them, she says. This is where the flexibility comes in.
“Some employees working a three hour shift, for example, might not want to take a break, but they have to. [The bill] provides that an employer and employee can agree that compensatory measures can be taken instead of the rest break.” That compensation could be time off at another time, or extra pay. And Ashleigh says, the change just reflects what is already happening in most workplaces.
Health and safety is such a crucial thing in this country at this point in time, that employers aren’t going to be sacrificing their employees’ happiness and safety by getting an extra ten minutes out of them a day.
But the co-convenor of the Council of Trade Unions’ youth network Stand Up, Asher Goldman, says that’s just not the way it works for young people. He argues that industries like retail and hospitality - disproportionately staffed by young people - have smaller workplaces, with fewer people rostered on at any one time. “So employers can, and no doubt will, make a case that they can not afford to have staff take a break.”
But Ashleigh Nelson says employers know staff benefit from having a break, and very few will exploit the law. “Health and safety is such a crucial thing in this country at this point in time, that employers aren’t going to be sacrificing their employees’ happiness and safety by getting an extra ten minutes out of them a day.”
Paige says in a job where she is constantly on her feet, and constantly in demand, a break is the only downtime – without it, she goes “slightly crazy”. “It’s how the customers talk to you, and having to put up with so many different things. It gets to you after a while. You really need your break.”
Another thing that has unions worried is the ability for employers to walk away from collective bargaining, provided they’ve bargained in good faith.
Business New Zealand chief executive Phil O’Reilly tells Radio New Zealand’s Insight programme that that change will reduce unnecessarily costly and protracted bargaining, especially in critical industries like ports and freezing works. And again, most workers won’t see any change.
“The percentage of workplaces is relatively low, but often they are very impactful workplaces to New Zealand...although the number of them is relatively small, their impact on their economy, and therefore the importance of making sure bargaining is as efficient and as sensible as possible is important to New Zealand, even if most workers won’t see many of these changes at their own workplaces.
Goldman says if there’s no obligation to conclude an agreement, then there’s no duty to try. And that workers in collective agreements are more likely to get pay rises than those who aren’t.
But Ashleigh says employer aren’t out to screw workers, and removing the duty to conclude an agreement means employers can end bargaining that has become bitter and protracted. She points out that people still have access to unions, and that “good faith is still really important in the employment relationship.” It isn’t as simple as employers just walking away from bargaining, she says.
“Young workers are already more likely to make concessions, and they work in industries where employers can be quite cutthroat about things like job security." - Anita Rosentrader Photo: The Wireless/Megan Whelan
Only about one in five people are represented by a union – and the changes will make unions’ work harder. Anita Rosentreter, 27, an organiser for the EPMU says that’s particularly concerning for young people, who are already vulnerable.
“Young workers are already more likely to make concessions,” she says “and they work in industries where employers can be quite cutthroat about things like job security.”
“We’ve heard about zero-hour contracts and things like that. They’re already giving up breaks in a lot of instances. Already coming into work early and cashing up their tills.”
The Government argues that changes to employment law are all about creating a high wage economy. But Anita says the much-heralded flexibility comes at the cost of wages and job security.
“This generation of workers is going to forever have really low expectations about what they should be getting out of their employment and out of their employer,” she says. “They already know very little about their rights, as most people tend not to know when they’re coming into the work force for the first time, and they’re already kind of willing to forgo their rights in order to keep their employment, or get in their boss’s good books.”
Many young workers are already in precarious work. Anita says she sees about a lot of abuse of the 90-day trial period, for example. Casual, short-term and zero-hours contracts all mean workers have less job and wage security.
David Do says that means there’s more risk of people being taken advantage of. “For a young person, or someone who is entering their first job, it can be quite easy to take for granted the existing protections – like enhanced annual leave, or union member benefits – that are there because of collective bargaining over the years. These changes mean that employers are more able to walk away [from collective bargaining]. They will put working conditions at risk over time.”
Of course, not all employers are out to exploit workers – the vast majority have good relationships. The CTU President Helen Kelly called these changes “shameful”, saying “New Zealand now has some of the worst employment protections in the OECD.” It remains to be seen if the trade-off of the promised economic growth and job creation is worth it.
You can hear more about this issue in The Wireless’ new podcast On The Dial later this week.