Saturday, 6 July 2013

Simon Bridges fails the standard

Several weeks ago, Simon Bridges, the Minister of Labour, announced he was making some changes to employment law.  He released a media statement on the 5th of June 2013, which I have included below as well:
Legislation to ensure more fairness, flexibility and clarity in employment law passed its first reading in Parliament.
The Employment Relations Amendment Bill proposes a package of measures to improve workplace arrangements in order to lift productivity and help create jobs.  
Labour Minister Simon Bridges told Parliament the Government wants to ensure that employers have the freedom to compete and expand, while key protections for employees are maintained.
The key features of the Bill are:
• The extension of flexible working arrangements so any employee, not just caregivers, can ask for flexible work.
• 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.
• Faster Employment Relations Authority processes.
• Greater clarity as to what confidential information employers are required to provide to affected workers in situations such as dismissal or redundancy.
• Requiring parties to provide notice of a strike or lock-out.
“I am especially keen to hear what affected parties have to say on the Part 6A proposals in the Bill, and will carefully consider their submissions and the recommendations of the Select Committee,” said Mr Bridges.
The Independent Taskforce on Health and Safety has recently made its recommendations to the Government, which are currently being considered.

“I want to signal my intention that, where desirable and practicable, this Bill will be the vehicle to implement any changes that need to be made to the employment relations regime as a result of the Government’s response to the Taskforce.
“Overall the proposed changes reflect a pragmatic approach to promoting flexibility and fairness in the labour market.”
On the 9th of June, Mr Bridges appeared on the TV1 political programme Q&A where he described his changes as "moderate, centre right law" over and over again.  When challenged by Corin Dann that the employment law was working, Bridges said that parts were unworkable or sloppy, creating problems, that we need more fair, flexible law that improves flexibility and profitability and will flow through to higher wages.  Corin pointed out that the changes would take away the rights to negotiate pay rises through collective bargaining, which Simon refuted by saying that collective bargaining was not fair for employers.  Simon Bridges claims that collective bargaining doesn't work, citing the Ports of Auckland dispute.  Corin pointed out that strikes have declined and are not so much of an issue in New Zealand anymore and asked how would low income workers be protected.  Simon Bridges again described these changes as moderate and pragmatic.
Simon Bridges became the Minister of Labour after Kate Wilkinson fell on her sword (finally) on November 5 2012 as a result of the Pike River inquiry (although Chris Finlayson held the position in the interim until John Key did his cabinet reshuffle in late January 2013).  Bridges also holds the portfolio of Energy and Resources.
Before Simon entered parliament as the electorate MP for Tauranga (replacing Bob 'The Builder' Clarkson in 2008) he was a lawyer, a Crown Prosecutor.  Considering Simon was a lawyer, you would expect him to know the law, be able to read it, understand it, apply it.
It appears not.

As you can see from the picture above, Simon Bridges has a poor understanding of one of the most basic tenets of the current legislation.  Pretty poor from a lawyer.

Simon Bridges wants to refuse new employees the right to 30 days to decide if they want to join the union.  Simon Bridges wants to give employers the right to pay new employees less or more with worse or better conditions than their unionised employees from the get go.  While this may be advantageous for the employees who are being paid better and are receiving better conditions, what about the (most likely more numerous) employees who will be worse off?

And why would you remove the requirement for good faith bargaining and allow employers opt out of multi-employer bargaining?  It certainly won't benefit employees or their relationships with their employers.  These changes are a tool to benefit employers only, to maximise their profits.

Before you say I am opposed to businesses making a profit, let me say that profits are important.  It demonstrates a successful business and that is a good thing for the owners/shareholders, employees, community and the country as a whole.  However, profits should not be made to the detriment of employees (their conditions, health and safety), the best interest of the community or country, or the environment, fauna and flora. 

New Zealand is a founding member of the International Labour Office (ILO).  Apparently, some of the above changes mooted are contradictory to our obligations under membership in the ILO.  Even his own officials told Mr Bridges that the amendments pertaining to employers opting out of collective bargaining contravened the ILO workers conventions that New Zealand subscribes to.  On June 4th, Simon Bridges told parliament in answer to a question from Darien Fenton during question time that he would discuss the changes with the ILO when he attended their conference later in June "with my new bestie Helen Kelly... and we'll be able to ask them then what they think".  However, he did not meet with the ILO in the end.  He refused to meet with them so he would not have to hear from the ILO directly how he was breaking the conventions.  The opposition has said that Simon Bridges effectively misled parliament, a very serious charge.

This is pretty typical of a National party minister.  As Helen Kelly put it, "Clearly this is a case of ‘hear no evil’"  Mind you, he has had some great role modelling.  Anne Tolley and Hekia Parata are infamous for throwing their toys out of their play pens when their officials tell them something they don't want to hear (probably why Novopay was such a botch up, because MOE officials couldn't tell them that Talent2 wasn't up to scratch), and Steven Joyce also isn't above throwing a wobbly either I've heard.

At this point (shock, horror) I am going to put up my hand as being a left-leaning, card-carrying unionist, who is involved in my industry union at branch and regional level, and gets to participate at a national level through the Annual Meeting.  I defend the right of the average person to belong to a union because I believe we would not have the standards we have in the work place today if it wasn't for workers uniting and standing up for fair pay, fair working hours and fair and safe working conditions.  I want to preserve the conditions we and others before us have fought for, and continue to strive for better conditions for workers that also allow for business and the public sector to strive for good.

One of the things that is not mentioned at the beginning of this blog is the intention to change the rules around meal and rest breaks.  The legislation covering this was brought in by Labour List MP Sue Moroney under Steve Chadwick's "Breaks and Infant Feeding Act" in 2008, and was enacted in 2009.  Prior to this Act there was no requirement under New Zealand employment law for meal and rest breaks, unless stipulated in each individual or collective employment agreement.  Under this Act, workplaces are required to do the following according to the Department of Labour:

Employees will be entitled to the following paid rest breaks and unpaid meal breaks:
  • one paid 10-minute rest break if their work period is between two and four hours;
  • one paid 10-minute rest break and one unpaid 30-minute meal break if their work period is between four and six hours;
  • two paid 10-minute rest breaks and one unpaid 30-minute meal break if their work period is between six and eight hours.
If more than an eight hour period is worked, these requirements automatically extend to cover the additional hours on the same basis.

This link will take you to the page where the Department of Labour lists all the changes proposed, and the information about meal and rest breaks is on pages 12-13 of this PDF.

So why was the legislation for meal and rest work breaks introduced in 2008?

With the Employment Contracts Act in the 1990s the collective awards that previously covered most workers were swept away.... and consequently so were the stipulations for rest and meal breaks.  In the twenty or so years since, many young people and immigrants have joined the workforce in New Zealand.  The CTU says "The Service and Food Workers Union (SFWU) report that largest number of calls and queries are from workers asking about meal break entitlements especially where small workplaces are not covered by collective agreements."  (CTU Submission to the Industrial Relations and Transport Select Committee ~ Employment Relations [Breaks and Infant Feeding] Amendment Bill ~  May 2008 page 7).

The fact that an Indian restaurant in Auckland has recently been exposed as paying its migrant workers less than $4 an hour for a 70 hour work week show that the company is willing to work their employees as slave labour by how they pay them... so what about their legal rights to meal and rest breaks?

These meal and rest breaks are also vital for health and safety reasons and for sustained productivity.  The following comes from page 6 of the 2008 CTU Submission:

8.2       In certain industries workers are exposed to greater health and safety risks.  Workers who work long working hours, who work shift work and who work at night have higher exposure to health and safety risks.


8.3       Rest breaks are also recognised as having a role in ensuing worker productivity. Research undertaken in a car plant in Swansea over a three year period found that the risk of accidents during the last half-hour of a two hour period of work, was double that for the first half-hour. The suggestion is that more frequent breaks could reduce accidents. It was concluded that increasing the frequency of rest breaks of workers who operate machinery could substantially reduce industrial accidents and that frequent work breaks (e.g. ten minutes every hour) can improve work performance[1].

[1] Working Time and Health: Fact Sheet, International Labour Office, Geneva, 2004.
Clearly, employees are there to ensure the employer makes money and a profit.  But no employer should profit at the expense of the health, safety and well being of their employees.

Yet New Zealand has a shocking workplace health and safety record.

Just two and a half years ago we lost 29 men to the explosion in the Pike River Mine.  As a nation we watched the West Coast go into full rescue mode... be pulled back for safety reasons.... and then have their hearts broken as a second explosion dashed all hopes.  The nation mourned with the West Coast as a memorial was televised live.  Personally I cried copious tears for the families.

Last year the inquiries demonstrated that systematic failures led to the deaths of the 29 men.  This is a simple outline:
  • a lack of mine safety inspectors - there were two for the whole country.
  • deregulation of the mining industry.
  • a lack of mining industry specific regulations.
  • use of non-company contractors within the Pike River workplace to cut costs.
  • poor safety training by the company - particularly for the contractors.
  • modifications to equipment that monitors gas levels so work onsite could continue.
  • lack of safety gear within the mine.
  • lack of exits from the mine.
  • pressure from management to carry on work despite gas readings.
  • a culture of "she'll be right" within the company.
There was that quiet pressure from the top of the company to compromise the health and safety of the workers because they wanted the top quality coal out to make money.

The company was convicted in April for the deaths of the 29 men.  This last week the sentencing was handed down.  The families of the those who died, as well as Daniel Rockhouse, who survived, read or submitted their victim impact statements.  These men were sons, brothers, fathers, husbands, uncles, nephews, cousins, sweethearts.... their families have been devastated, their lives have altered course immeasurably due to a company that did not value health and safety or the lives of their employees and contractors. 

Judge Jane Farish ordered that Pike River Mine Company pay each survivor and the 29 families $110,000 compensation each, or $3.41 million in total.  She also fined the company $360,000 over nine health and safety employment charges.  The company says it does not have the money to pay.  It estimates it can give $5,000 per family.

Is an employee's life worth only $5,000?

Since the Pike River disaster there has been a call for a law to be implemented to allow a company to be charged for corporate manslaughter in the advent of a workplace death.  Simon Bridges should soon be announcing a decision about this possibility  Personal liability for directors has also been called for.  A strengthening of the laws governing mining are also on the table.

In the meantime, Simon Bridges has introduced some guidelines to make mining safer.  They do not change the law and have no legal force.  These guidelines recommend directors provide a clear job description for the chief executive, which includes health and safety responsibilities, and to conduct management performance reviews.  Yip-bloody-pee!!

But we have another industry in New Zealand where we have lost the equivalent number of workers - 30 in six years - forestry.

On Wednesday night TV3's 3rd Degree broadcast a story about the conditions forestry workers work and die in.  Guyon Espinor went to work with the forestry workers, talked to a widow of a forester, parents of a forester, the CTU and the industry leaders.

Forestry has always been a dangerous industry.  Men have died throughout the history of clearing forests.  However, in today's modern world we should be able to minimalise the chance of death or injury. 

There are an average of 330 accidents per year.  Four foresters have died this year alone.... so far.  50% of foresters work longer than 40 hours a week and 10% work longer than 60 hours a week.  There is no cap on the number of hours a forester can work in a week.  The code of practice merely says that workers are entitled to “regular rest breaks, a meal break and a daily or nightly sleep period”.  They risk injury or death for about $20 an hour on average.

The CTU are leading a campaign to make forestry a safer industry.


Ken Callow was killed in October 2011 in the Wharerata Forest south of Gibson when a pine tree fell and crushed him.  He was a father of two young sons.  The official report into his death says he was "the architect of his own demise".  The parents of Ken Callow do not want to apportion blame, however they do ask one question: why are so many of our young men being killed or seriously injured in the forestry industry?

What is truly scary though is that the Department of Labour holds no true and correct record of the number of deaths in the forestry sector.  "Shane Philip Frater, 28, died on 1 May 2009 in a forestry block near Te Pohue, off the Napier-Taupo Rd, when he was hit by a branch of a tree as it slid down a hillside.  “Despite the Department of Labour carrying out the investigation it now has no record on its database of this forestry death, or record of his death in the statistics for forestry deaths in 2009, raising questions about how many other Forest fatalities are not recorded,” Helen Kelly said."
The CTU, families and industry leaders are calling for an inquiry into why so many foresters die on the job.

Yet Simon Bridges doesn't think that we need an inquiry.  He reckons he has got enough reports and that he has a "strong sense of what the solutions are".

So how does Simon fail the standard?  Let me catalogue the ways:
  • Simon wants to end the requirement for employers to bargain in good faith - big fail there Simon, as that merely creates a wedge between employers and employees.
  • Simon want to allow employers to bow out of multi-employer bargaining - big fail here too Simon.
  • Simon refuses to hear his officials and the ILO and the CTU when they all say his legislation contravenes the conventions New Zealand is signed up to under the ILO - that is a major fail and demonstrates a flagrant disregard to workers rights by New Zealand internationally.
  • Simon is removing the requirements for rest and meal times - another epic fail as studies have shown that productivity is higher when workers receive regular work and meal breaks, and that health and safety statistics are more likely to be on the positive side of the ledger.
  • Simon's guidelines for directors of mining companies have no teeth whatsoever - another fail.
  • Simon's refusal to have an inquiry into the health and safety of forestry workers is another fail.
Simon would do well to remember he is the Minister of Labour, not the Minister of Employers.   He is there to ensure that the Department of Labour enforces the law of the land on how businesses operate and how their employees are trained, paid, and treated.

You're not there to ensure some rich fat cat gets richer or fatter Simon!!!  Consequently, you fail the standard.  Big time.

Thanks for reading through to the end.  This post has taken several weeks to compile and events overtook my initial thoughts (e.g. Pike River and the forestry issue) so I felt compelled to include those issues too.  I know it was a long blog.... but I hope it was food for thought.

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