The real reason for the secret ballot law

Written By: - Date published: 7:35 am, May 11th, 2012 - 54 comments
Categories: class war, Unions, workers' rights - Tags:

The tories are all puffed up about finally getting their secret ballot law passed. It’s about freedom they say, they’re on the side of the working man.

Thing is it’s not. And they most certainly aren’t. Most unions run secret ballots for strike action already simply because they know they have to be above board and be seen to be above board by their membership or face losing them (that’s the thing with voluntary unionism, it’s subject to market pressure which makes it even weirder these market-y types want to regulate unions so much).

What this is really about is offering employers a way to delay and defer strike action by getting the lawyers involved. Right now the process is simple – the members take a vote on industrial action and, if they decide to take action, their union rep informs the employer. Except in the case of essential industries. In an essential industry the employer must be given notice (usually two weeks) of industrial action. When it’s a strike, such as the action taken at POAL in response to the lock-out, it’s clear-cut.

But when it’s partial industrial action such as refusing to do paperwork, putting just one section of a factory on strike, or something as simple as wearing a union sticker in place of a name-badge, then things get complicated.

That’s because these actions often require strike notices to define coverage, or name members taking part in the action, or provide very specific definitions of the industrial action. In essential industries this almost inevitably means the employer will respond with a legal challenge to the strike notice. And that means temporary injunctions, Employment Relations Authority hearings and potentially appeals. All of which decrease the leverage the industrial action provides workers by draining union resources and dragging a dispute out which can undermine members’ resolve and giving the employer time to prepare to minimise the industrial action’s effects.

Big unions on well established sites can usually deal with this kind of thing. They keep their own lawyers and know how to deal with it. Smaller unions may find themselves so drained they settle on the employer’s terms. Fortunately the use of partial industrial action in an essential industry is very rare.

However the secret ballot rule will effectively put the same constraints on all industrial action. Any employer served notice of industrial action will be able to challenge the ballot, the coverage, and the terms of the notice (which I understand will also be required). Which means you’ll see employers using their superior resources to drag unions and their members through court (individual members are often added to legal actions by employers as an intimidatory tactic).

Under this law McDonalds could have tied Unite union up in the courts for months during the supersize campaign and I doubt any member would have seen a pay rise. Similarly the resthome workers who are taking action would probably still be in court.

That’s why this law change is so insidious. It’s not about personal freedom but about curtailing the freedom of workers to stand up for their rights.

What’s concerning is it’s just the first of a whole series of backhanded loopholes this government is planning to introduce into employment law. All of which are aimed at reducing Kiwi workers’ bargaining power and keeping their wages down.

54 comments on “The real reason for the secret ballot law ”

  1. tc 1

    It’s the subtlety and Machiavellian methodology I admire, straight from the hollowmen play book.

  2. Everything that the Nacts are doing just makes my stomach churn. A ton of Kiwis still seem to be eating out of their palm though, buying every piece of spin.

  3. tsmithfield 3

    Irish, if you are correct on the point you are making, then if the various unions are able to provide clear documentation to show that the correct processes have been followed, then surely the courts will jump down hard on employers that try to game the new rules to their advantage, do you think? Therefore, I suspect that any attempt by employers to use this situation to their advantage will die out fairly quickly.

    • Uturn 3.1

      Don’t just read, comprehend:

      “What this is really about is offering employers a way to delay and defer strike action …”

      “All of which decrease the leverage the industrial action provides workers by draining union resources and dragging a dispute out which can undermine members’ resolve and giving the employer time to prepare to minimise the industrial action’s effects.”

      “Big unions on well established sites can usually deal with this kind of thing. They keep their own lawyers and know how to deal with it. Smaller unions may find themselves so drained they settle on the employer’s terms.”

      “However the secret ballot rule will effectively put the same constraints on all industrial action. Any employer served notice of industrial action will be able to challenge the ballot, the coverage, and the terms of the notice (which I understand will also be required). Which means you’ll see employers using their superior resources to drag unions and their members through court (individual members are often added to legal actions by employers as an intimidatory tactic).”

      Just to remind some people:

      “It is a breach of subsection (1) for an employer to advise, or to do anything with the intention of inducing, an employee—

      (a) not to be involved in bargaining for a collective agreement; or

      (b) not to be covered by a collective agreement…”

      Theoretically, with this new amendment, advantage has been gained for employers. I say theoretically, not because it won’t happen, but because it will only exacerbate industrial disputes – illegal under current law. Employers who believe inflaming the events that precede strike actions is a route to controlled developments in their favour need to buy a history book. I would have thought that the recent POAL dispute would have driven home that point, but things can be and have been worse. Employers who think National have their interests at heart, should think again, also.

      This law has constructed the contradiction of – at face a value – a legal requirement, which in application, will contradict the intent of the larger act. If employers follow any strategy that relies on this amendment as justification, they could be breaking the law and will certainly be challenged on it in court. More costs. More time. More problems. National is dropping employers in it in their eagerness to attack unions. They don’t give a stuff.

      The duty of good faith in the Employment Relations Act includes:

      “…
      (g) communications or contacts between a union and an employer relating to any secret ballots held for the purposes of bargaining for a collective agreement.”

      This is the government undermining its own legislation of Good Faith Bargaining, by stealth. They have done it not by changing the law openly, but by enforcing what is a necessarily flexible dynamic of a union into a dis-empowering compulsion. It has interfered in the “communications and contacts”. In reality, the potential environment has been changed, the relationships of power, adjusted.

      “It is a breach of subsection (1) for an employer to advise, or to do anything with the intention of inducing, an employee—

      (a) not to be involved in bargaining for a collective agreement; or

      (b) not to be covered by a collective agreement…”

      Of course, because the words of the Employment Relations amendment bill apparently “change nothing” or change it in a subtle way i.e. “…if you adhere to your own procedures you have nothing to fear…” it can be argued it is “helping”. But the lie, as IrishBill points out, is they never were procedures: they are flexible guidelines reflecting the resources, environments and practicalities of unions in our industrial environments. Henare does not have the right to redefine the operations of every union in NZ while coyly saying he was “just helping”. Unions didn’t ask him to do it. Who is he helping again?

      The irony, or perhaps the freudian slip, is that Henare says it’s so union members can’t be intimidated by their representatives. What it allows employers to do, during the delay it enables and to their own disadvantage, is just what it accuses reps of doing, and good faith bargaining now distorted, even encourages it.

  4. The Gormless Fool formerly known as Oleolebiscuitbarrell 4

    Well done, Irish. I really would have thought it impossible to raise a credible defence of such an undemocratic process.

    Could you perhaps do a series? I look forward to your defence of eugenics and picking ones nose at the dinner table.

    • felix 4.1

      Which undemocratic process is that, Ole? I don’t see any defense of undemocratic processes.

      • The Gormless Fool formerly known as Oleolebiscuitbarrell 4.1.1

        I thought this was quite uncontroversial, but maybe I am wrong.

        My friend Wikipedia:

        “The secret ballot is a voting method in which a voter’s choices in an election or a referendum are anonymous. The key aim is to ensure the voter records a sincere choice by forestalling attempts to influence the voter by intimidation or bribery.”

        http://en.wikipedia.org/wiki/Secret_ballot

    • bbfloyd 4.2

      more bedside humor from the resident fool….. you can get pills for what ails you sonny….

  5. DavidW 5

    So Bill, atre you equally against large unions using their power against small employers by threatening ction that may drain the employer of his resources and thus leave him in the position of having to cave in to unreasonable demands and a long lingering decline in the viability of his business or being shut down by strike?

    Can’t have it both ways but I’m sure you will try.

    • Carol 5.1

      Examples , please?

    • millsy 5.2

      So we could just get rid of unions totally, and open sweatshops here. Like DavidW is proposing.

      Like most right wingers, his agenda is to strangle unions in red tape so:

      1) Minimum wage can be abolished
      2) Sick leave gone by lunchtime
      3) no more annual leave
      4) no overtime
      5) no breaks.

      • bbfloyd 5.2.1

        and when our economy has tanked, and our police are forced to patrol in armored vehicles, wearing body armor, and sporting heavy calibre ordinance as a matter of course, then we’ll have young david blaming the unions for inciting civil disobedience…

  6. The Baron 6

    There’s two risks being balanced here:

    1. Intimidation to join in strike action when public ballots take place. Plenty of anecdotal talk about that going on, but I’m sure nothing to see here from Irish.

    2. Employers getting another way of fucking with a Union’s right to take industrial action. But as TS says, that will be dealt with pretty quickly by well documented procedures, and um, actually sticking to them. That’s the way courts work.

    If I had to choose between something going before the courts and someone getting the bash behind the smoko room, then I know what way I’d go. But then again, I’m not a lefty fanboi.

    • bbfloyd 6.1

      quoting a sociopath who displays his mental impairment publicly as often as his illness allows him to is not going to strengthen anyones case…..

      especially as you seem to be relying on the same childish faith in the legal profession as you do in national party mp’s telling the truth every time they open their mouths….

      and relating the “stories” told around the table at cocktail parties by “knowledgeable” tories just exposes you complete ignorance of reality…

      i have been in unions, and around them all my life, and, like every single person i know in the same situation,, have NEVER at any stage, seen even a hint of coercion, or intimidation practiced by any union delegates, or shopfloor members….

      the only place that goes on is in the head offices…. and national party caucus meetings.

      • tsmithfield 6.1.1

        “quoting a sociopath”

        Cool. I’ve never been called that before. 🙂

    • millsy 6.2

      “If I had to choose between something going before the courts and someone getting the bash behind the smoko room, then I know what way I’d go.”

      You’ve been watching too much gangster movies.

  7. Daveo 7

    I’ve heard of people being thrown down the stairs at National Party meetings but never at a union meeting.

    • Bob 7.1

      No, they prefer to urinate on BBQ’s, intimidate non-union workers trying to get to work, threaten to ‘bash’ non-union workers (both through the fence at work, and on social media) and lie about how ‘hard done-by’ they are by their employers (Cecil Walker anyone?). By the way, how many MUNZ workers finally left the Union to go back to work or find alternative employment? I wonder if this number would be different if they were given the choice of a secret ballot?

      • Colonial Viper 7.1.1

        I wonder if the number would have been different if the very very highly paid Board and CEO of POAL had the decency to treat their own port staff and workers with a modicum of respect and appreciation, instead of treating them like disposable serfs.

  8. Te Reo Putake 8

    Just to knock the ‘speedy resolution in court’ bollox on the head, the Chief of the Employment Authority has just written to the CTU explaining that there will be even worse delays than usual getting cases heard because of the changes bought by the Government into the way authority members are employed.
     
    He goes on to confirm that the numbers are currently down anyway and a third of those appointed are new members and have to learn the job. Therefore he advises that the current long delays are going to get worse over the next few months.
     
    The reality is that Irish Bill is dead right (as usual). This is an attack on democracy, not an enhancement of it.

  9. John72 9

    As creeping Ivy clings to wood or stone and hides the ruin that it feeds upon.

  10. seeker 10

    @ bbfloyd

    ” and relating the “stories” told around the table at cocktail parties by “knowledgeable” tories just exposes you complete ignorance of reality…?

    Aha! Was only pondering yesterday as to how tory./business shallow, stagnant, selfish, blinkered, dishonourable thinking, which strangles any form of creative and becoming progress of the human race, maintains it’s consistent low standard.

    Thankyou bb for the perfect description of how and where Nact etc.unites to justifiy to itself its nasty policies to rape, pillage and plunder New Zealand. In fact you describe a ‘union’ meeting of a rather Machiavellian sort; a nasty arrogant.self serving, bullying, amoral ‘union’ which has been going on in one guise or another since time immemorial.

    At least the ‘working man’s union’ arose out of vicarious suffering, empathy and thoughts for the safety, health and wellbeing of men women and children in their communities. These unions have integrity and have maintained this over the decades.

    However, the self absorbed, cruel ‘cocktail’ unions sold their integrity for a mess of pottage and gold long ago. What a wasted ‘union’ of human souls.

  11. Richard McGrath 11

    Of course, the intention of this legislation wouldn’t be to address union thuggery and bullying, would it?

    That said, as a libertarian I oppose government interference in the workings of a voluntary organisation such as a trade union, and therefore oppose this legislation.

    The state has no business interfering in to the peaceful activities of private groups. Just as private groups have no business coercing people into becoming members. Which is why I have always supported voluntary membership of trade unions.

    • “The state has no business interfering in to the peaceful activities of private groups. Just as private groups have no business coercing people into becoming members. Which is why I have always supported voluntary membership of trade unions.”

      Couldn’t agree more.  

      • Colonial Viper 11.1.1

        Of course you would agree with increased corporate power over weakened and isolated individual workers.

        • TheContrarian 11.1.1.1

          I agree with the freedom of association (or non-association) which is why Unions should always be voluntary. 

          • Kotahi Tane Huna 11.1.1.1.1

            I look forward to your opposition to the law society and the real estate institute.

            • TheContrarian 11.1.1.1.1.1

              Neither the law society or the real estate institute are compulsory. So what is your point?

              • Colonial Viper

                The point is that workers need to band together in an organised fashion to oppose reductions in their working terms and conditions.

                Workers who do not join those organisations should get no benefit from the work of those organisations.

          • Colonial Viper 11.1.1.1.2

            I agree with the freedom of association (or non-association) which is why Unions should always be voluntary.

            I value workers having increased leverage against much larger much more well resourced corporate organisations.

            Which is why union membership must be increased, and more worker led commercial co-operatives formed.

            • Colonial Viper 11.1.1.1.2.1

              Also, fuck you Contrarian for using the principles which are supposed to give freedoms to the people, to oppress the people instead.

              You’re a special kind of capitalist scum.

            • TheContrarian 11.1.1.1.2.2

              “Which is why union membership must be increased”
              I have nothing against unions or union membership. But I firmly belief that it should be my own, independent decision to join the union.

              When I worked in public service I didn’t join the PSA  and when the negotiated for a 2% pay-rise I saw none of it as a non-union member (I think union members got it immediately with non-union members coming in to line over three years – I can’t remember exactly) but that was my choice and I lived with it.

              “fuck you Contrarian for using the principles which are supposed to give freedoms for the people, to oppress the people instead.”

              Excuse me, but what the fuck? Explain yourself. What have I done?
               

    • Kotahi Tane Huna 11.2

      “That said, as a libertarian dribble flows freely from my mouth, the flow only stopping during the moments I have to pause to wipe it off my face….” FIFY.

  12. Te Reo Putake 12

    “Of course, the intention of this legislation wouldn’t be to address union thuggery and bullying, would it?”
     
    No, that is just a fact free, right wing smear designed to influence the weak minded and the ignorant. Strange you fell for, it, Richard.

  13. captain hook 13

    the plain facts are this government cant do anything honestly and openly.
    it is so used to doing deals that the notion of discussing something overtly is beyond them.

  14. Gosman 14

    I look forward to the next left leaning Government reversing this law then. That should be good for a laugh.

  15. captain hook 15

    they think they are going to lower wages so large “Asian” manufacturers will set up shop here.
    Just more piffle from the right but never underestimate the desire o f fat toady accountants to beat up on people just because they can.
    more pathological behaviour enabled because and only beacuse they have money.
    sik.

  16. Ed 16

    In the interests of fairness, a shareholder vote, and appropriate notice, should be needed for a lock-out.

    • Colonial Viper 16.1

      Yep 30 days notice.

      • OneTrack 16.1.1

        Yep 30 days notice of strike action, after a fair and democratic secret ballot, without coercion by the union or by union members. Job done 🙂

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