Workers’ rights: too many steps behind

Written By: - Date published: 10:30 am, February 25th, 2013 - 30 comments
Categories: workers' rights - Tags:

I’m a big fan of the Living Wage campaign.  And I really liked the Herald‘s series covering the launch week.

But part of that coverage highlighted a big problem that I don’t think the Living Wage campaign will reach.

There are a number of proposed changes in Employment Relations that I hope to see next time we have a Labour / Left government.  $15 minimum wage (although by next election I hope that’ll be $16…).  The Living Wage for all Government employees and Government contractors.  Compulsory redundancy cover for long-service.  And Labour’s modern awards system that should see industry minimums of wages and conditions negotiated – giving the Four Square worker in Kaitaia the same union advantage that their counterpart in an Auckland Countdown gets.  That should beef up collective bargaining and multi-employer deals.

But even if we get all those, and the many fabulous rewards they will bring for many low and middle income Kiwis, there will still be a big section who miss out.  Because a number of employers are even further ahead of the employment relations curve.

It’s seen in the Herald’s example here.

Instead of employing people, many companies are now having their employees be “independent contractors” (or sometimes “freelance”).

Contracting has its place; I have very happy contracting colleagues.  But it is often being used to screw down the income and conditions of a company’s workers.

Sick pay, statutory holidays, annual leave, ACC, tax are no longer paid by the company, but those costs – combined with all the administration of them – are passed over to the past employee, now new “independent contractor”.  Health & Safety and required tools are now the contractor’s responsibility – including in the Herald article the big-rig truck that drivers need.

The contractor may be paid for work achieved rather than hours – so that when the company has a delay and the contractor is left waiting, the contractor bears the brunt of the lost productivity, not the company.

Often these contractors are independent in name only – their truck may be painted with the company decals and they may have stipulated that they have to be available on short notice, meaning other work can’t be taken.  And the pay on offer doesn’t compensate for the extra costs – let alone the extra risks – transferred to the past employee.

How do we protect workers who will be desperate to keep their jobs, and are presented with this ultimatum?

There needs to be greater protections.

Often these deals are legally grey as contractors legally need to be independent, so a beefing up for the Department of Labour and a tightening of the “independent” terminology in law would be a good start.

Perhaps a company could be required to guarantee that those who contract directly to it earn their industry’s minimum wages & conditions, and guarantee their health and safety.  So paperboys and girls can’t be paid 1/3 minimum wage because they’re paid per paper rather than per hour.

What other ideas can you come up with?  How can we protect workers from unscrupulous employers, and keep the law up to date with their practices?

30 comments on “Workers’ rights: too many steps behind ”

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  1. Afewknowthetruth 1
    25 February 2013 at 1:18 pm

    No wonder Labour languishes in the polls when Labour supporters write drivel so disconnected from reality.

    [Ben Clark: self-martyrdom again. Policy states that abuse of authors on their own site will result in bans. You got a 1 week ban 1 week ago, which you ignored (you’re now in moderation), so we’ll double it. Then second offence, so we’ll double it again. 1 month ban.]

    • A.Ziffel 1.1
      25 February 2013 at 1:39 pm

      Disconnected form reality?
      I can only imagine that the few who know the truth are the voices in your head.

    • Polish Pride 1.2
      25 February 2013 at 2:45 pm

      They are not disconnected from their day to day reality.. just perhaps not connected with the possibilities and what they could have.

    • Robert Atack 1.3
      27 February 2013 at 3:38 pm

      Ben if you had watched the documentaries I sent you over 6 months ago with an open mind, and a turned on brain, then wrote the truth instead of the crap you do write, then maybe Afew wouldn’t need to point out how much of an idiot you are
      Don’t worry I will take the month or whatever your small dicked brain dishes out.

      [Ben Clark: Don’t worry Robert I remember your mail to my personal address about how you hoped I’d watch my children suffer because of the impending climactic doom – now that I know how to do such things: permanent ban]

  2. George D 2
    25 February 2013 at 2:28 pm

    I’m a big fan of the Living Wage campaign.

    I’m not.

    The Living Wage campaign (aka the Employer Charity campaign) is a sign of a failing union movement. Trotter has it right. http://bowalleyroad.blogspot.co.nz/2013/02/the-living-wage-campaign-solidarity-or.html

    • George D 2.1
      25 February 2013 at 2:38 pm

      Hmmm, that was entirely negative. I think Labour’s negotiated industrial relations framework is a step forward from the environment we have now, and it will deliver substantial improvements for many New Zealand workers and their families. But much of what will be up for negotiation shouldn’t be up for negotiation.

      We shouldn’t have to negotiate the 40 hour week. It should be law.

      • Bunji 2.1.1
        25 February 2013 at 2:41 pm

        We shouldn’t have to negotiate the 40 hour week. It should be law.
        Indeed – bring back penalty rates over 40 hours should be added to the list.

        • Polish Pride 2.1.1.1
          25 February 2013 at 2:53 pm

          Great in theory, in reality you will push more jobs overseas in bigger corporations.
          In smaller ones they will struggle but to be fair you might end up creating new jobs as employers try to avoid paying time and a half and double time. Personally I prefer to move forwards not backwards because even if what you are talking about where to be put in place, I’d say it will remain for 6, maybe 9 years befor it is again removed by the next National government.

          • Colonial Viper 2.1.1.1.1
            26 February 2013 at 6:39 am

            Great in theory, in reality you will push more jobs overseas in bigger corporations.

            Make it harder for those corporations to operate profitably in NZ and in doing so replace them with homegrown NZ firms.

    • Polish Pride 2.2
      25 February 2013 at 2:42 pm

      Good it is about time that people stood up for what is right and stopped relying on unions. Social media has the potential more powerful than unions ever where for the right causes and is helping to reshape the very world we live in.
      It is hard for any political party or person to argue against ideas and policy that go to the heart of enabling people to have their needs met – The living wage is one of these ideas – Not the best one in my view but probably the most obtainable accross the board.

      • Colonial Viper 2.2.1
        26 February 2013 at 6:40 am

        Good it is about time that people stood up for what is right and stopped relying on unions. Social media has the potential more powerful than unions ever where for the right causes

        Brilliant. Lets band together for what is right , but online instead, and this time not call it a “union” (?!)

    • Richard Down South 2.3
      26 February 2013 at 7:21 pm

      Sadly, when unions are legislated against, you dont have much choice

  3. Polish Pride 3
    25 February 2013 at 2:36 pm

    Perhaps at the same time you should be asking how do you protect employers from unscrupulous employees who create personal grievance situations in a bid to use the ERA to get payouts from their employer.

    Mnay employers are looking at moving to a contracting model because it significantly lessens the risk in a number of areas of their business. If market conditions change they can react quickly to take advantage of them. If a contractor is causing trouble, they can simply let them go. Current employment law and the ERA is stacked against employers. At least this is the view I have formed from my own personal experiences. Many employers even when they are in the right feel it is easier to just pay out the employee, move on and get back to running the business.
    The 90 day trial is excellent for employees because it gives them a far greater level of comfort that if the employee can put on a good show in interviews but then doesn’t pull his weight or even worse can’t do the job it is easier to get rid of them and findsomeone else who wants to work and can do the job. Many employees before this only employ when absolutely necessary (or go on recommendations from trusted staff, otherwise it can be a big risk. For small businesses it can be sometimes too big

    • framu 3.1
      25 February 2013 at 3:15 pm

      “Perhaps at the same time you should be asking how do you protect employers from unscrupulous employees who create personal grievance situations in a bid to use the ERA to get payouts from their employer.”

      wheres the evidence its ever been a problem? – sure we hear lots of wailing from the employers union, but as far as im aware the stats tell the opposite

      “The 90 day trial is excellent for employees because it gives them a far greater level of comfort that if the employee can put on a good show in interviews but then doesn’t pull his weight or even worse can’t do the job it is easier to get rid of them and findsomeone else who wants to work and can do the job.”

      Sure you didnt mean good for the employer? – cause its no good for anyone else. Also, you didnt need the 90 day law before hand anyway – there was absolutely nothing at all stopping an employer giving any new employee a trial period. All that changed was the bit where you needed to tell the person in question why you were letting them go, and they had a right to challenge it.

      Good employers, who knew employment law, didnt even need the 90 day law then, and they dont need it now – its just a fig leaf for the bad and ignorant ones

      Why do so many employers seem so woefully ignorant of the laws they have at their disposal, both now and previously?

      Look, im not saying “employee good, boss bad”. (To me its a symbiotic relationship, i think my boss is one of the good ones) Its just that all the arguments for these kind of changes all turn out to be based on BS, denial of facts and outright maliciousness.

      • Polish Pride 3.1.1
        25 February 2013 at 4:08 pm

        “Perhaps at the same time you should be asking how do you protect employers from unscrupulous employees who create personal grievance situations in a bid to use the ERA to get payouts from their employer.”

        wheres the evidence its ever been a problem? – sure we hear lots of wailing from the employers union, but as far as im aware the stats tell the opposite

        Don’t personally know of any employers belonging to an employers union. I prefer to do the right thing by my employees in the hope that it is reciprocated. Most of the time it is.
        4 times since 2007 it hasn’t been

        Most if not all are confidential settlements to protect both sides so no you won’t hear about it similarly most employers have a business to run and don’t think they will change the system by making any noise on the issue. They, as a general rule do not have the spare time to spend on things and generally end up making it a financial decision vs right and wrong. i.e. what is it worth to me to have to sit here and prep for the mediation and then the subsequent hearing vs making an arbitrary payment so that I can get on with running my business. Or put another way how much will it cost for us to get rid of the rogue employee and the problem.

        “The 90 day trial is excellent for employees because it gives them a far greater level of comfort that if the employee can put on a good show in interviews but then doesn’t pull his weight or even worse can’t do the job it is easier to get rid of them and findsomeone else who wants to work and can do the job.”

        Sure you didnt mean good for the employer? – cause its no good for anyone else. Also, you didnt need the 90 day law before hand anyway – there was absolutely nothing at all stopping an employer giving any new employee a trial period. All that changed was the bit where you needed to tell the person in question why you were letting them go, and they had a right to challenge it.
        Yes I deid mean for the employer

        Good employers, who knew employment law, didnt even need the 90 day law then, and they dont need it now – its just a fig leaf for the bad and ignorant ones
        If you think that what makes a good employer is simply one that knows employment law and the others are bad or ignorant then this explains a lot about your views on the matter. I must be a bad or ignorant one then because despite paying employees as much as I could afford and not taking a wage or drawings myself (Lived soley off my wifes income) I wouldn’t consider myself to know a lot about employment law. Thats why I have an employment lawyer.
        There are situations where you just have to get rid of an employee and wear the grievance that you know is coming. especially in dishonesty cases.

        Why do so many employers seem so woefully ignorant of the laws they have at their disposal, both now and previously?
        Because they are too busy trying to build a business and making sure their employees have enough work so they don’t have to lay them off. Often they don’t pay themselves or at best do so sporadically in the hope that oneday they will make a profit or be able to sell their business and it will all be worth it.

        Look, im not saying “employee good, boss bad”. (To me its a symbiotic relationship, i think my boss is one of the good ones) Its just that all the arguments for these kind of changes all turn out to be based on BS, denial of facts and outright maliciousness.
        Before I started my business I would have agreed with you. Now having experienced it first hand I can ssure you it is not BS, denial or anything else.

        First employee – tried to load false information into the system so that processes would fall over and lead to pissed off customers. He then raised it as an issue and blamed it on the person whose job he wanted. Unfortunately for him we had an audit trail.
        Suspended full pay pending an investigation.
        Investigation completed, employee asked to come in for a meeting to discuss at a proposed time.
        Employee. said he couldn’t make it
        Proposed another time.
        Employee again said he couldn’t make it
        Asked employee for a suitable time
        Employee wouldn’t provide one.
        Decided to make a time and inform the employee that he needed to be there, to bring a support person and that the meeting would have to go ahead without him if he couldn’t make it. (he was given a weeks notice).
        He was let go
        PG
        Mediation adjudicator started making noise about not waiting long enough.
        Adjudicator made noises about not waiting long enough
        Payout move on

        I won’t list the other three which were all the employees too and all resulted in payouts.
        In my view I see employers needing protection from workers as much as the otherway around.
        It might be surprising but to a good employer, a good worker is worth their weight in gold and most employers will do whatever they can to retain them.
        I have no doubt that there are bad eggs on both sides and I personally believe that the current employment law has the balance about right for the first time. Especially with the ability for employees to get rid of rogue employees and not be liable where it can be shown the employee contributed to his or her downfall.

        There will still be payouts as employers decide to cut their losses and focus on running the business but at least logically there appears to be some semblance of fairness.

        Lastly the 90 day trial is not as simple as you have made out. You cannot just sack an employee and provide no reason. In fact you have to identify any issues, highlight them to the employee including what they need to work on to improve and any other support/training that you can provide. You will also give a reason if you let them go. You are just protected from a BS PG by someone who couldn’t do the job and wants to extract extra cash as a last goodbye from the employer.

        • fatty 3.1.1.1
          25 February 2013 at 10:56 pm

          It might be surprising but to a good employer, a good worker is worth their weight in gold and most employers will do whatever they can to retain them.

          That doesn’t surprise me at all. I think there are quite a few average workers out there, but I see that as being the outcome of poor workers rights, and I think stripping worker’s rights will just create more average workers. If we look at the younger generations coming through, they have only experienced working within short-term contracts, poor wages, little chance to upskill/progress within a company etc. Likewise, the older generations have learned since the 1980s to not give a shit about their work, because its temporary, they are disposible workers, and therefore the job is also disposable.

          Who looks after a paper plate if you are just gonna throw it in the bin after eating? Our economic ideology has created workers that don’t give a shit…you’d have to be an idiot to work hard in most jobs.

          Polish Pride, I’m not saying you give your workers a short-term contract, shit pay and no future (maybe you do) …my point is that our McJob culture has changed everyone’s perception of work and responsibility. We have hacked away at workers rights and the ERA2000 is not too lenient on workers. It offers them little protection, I would say that no other Act passed under Clark did more to continue neoliberalism than the ERA

  4. Draco T Bastard 4
    25 February 2013 at 3:01 pm

    What other ideas can you come up with?

    How about the old fashioned retainer? The company has to pay reasonable amount each week whether the contractor works or not. Extra is then paid for when they do.

    Or have it so that contractors are paid a minimum of $100+GST per hour. This would allow for all the unpaid work and time that contractors have.

  5. geoff 5
    25 February 2013 at 3:35 pm

    The contractor may be paid for work achieved rather than hours – so that when the company has a delay and the contractor is left waiting, the contractor bears the brunt of the lost productivity, not the company.

    This sort of thing happens because NZ is riddled with oligopolies. Legislation is needed to cut these rent seekers off at the knees.

    • George D 5.1
      25 February 2013 at 5:42 pm

      Yes. NZ is small. And in small countries, a small number of companies impose their conditions on industries. It’s up to Government to break up these cosy relationships; that requires a Labour-Green cabinet with the intelligence and conviction to see it through.

      • Colonial Viper 5.1.1
        26 February 2013 at 6:42 am

        It requires a Labour Green cabinet which has power in the real world, outside of Cabinet, powerful levers outside of Parliament.

        National has that. Labour-Greens have shit in comparison.

  6. Rogue Trooper 6
    25 February 2013 at 4:59 pm

    *sigh*

  7. Richard Down South 7
    25 February 2013 at 5:26 pm

    My question is WHO are they asking… if you asked 1000 people who are National Supporters through and through, then you’ll get right leaning polls… even if the rest of the country despised Key.

    Also, are they asking the same people? because i assume not, and thus, asking people who never would change party vote, all of a sudden brings ‘a boost for national’ when in fact its just asking people who would never have voted labour/greens etc

  8. Ed 8
    25 February 2013 at 6:47 pm

    I would have thought that legislation against “onerous contracts” could cover some things, but not all. There must be sometimes good reason for a worker to be no longer needed one day before there would be an entitlement to pay for public holidays for example – its just that seems to strike more often than many would expect . . .

    I believe that there is a good argument that higher wages force employers to use people efficiently – it changes the relative pricing of using machines for example. While that may seem to act against more jobs, the reality is that ‘working smarter’ can mean a lift in competitiveness that means more workers are actually needed. Again nothing is that simple, but the idea that higher wages send businesses broke is not always valid either – there was a good interview on radio recently where the arguent was that higher wages gave stability and commitment that were more valuable than teh additional wage cost.

  9. saarbo 9
    25 February 2013 at 9:51 pm

    Great Post Ben. I have been commenting on TS lately about many in the dairy farming sector who are employing contract farm managers under terrible conditions.

  10. xtasy 10
    26 February 2013 at 4:26 am

    Hey you can invent and start off any campaign you can dream of, but if you think it is top to bottom, and if you may never have lived the bottom nor connect much with the bottom, all this is like a big bucket of shit in the face of the ones you want to “reach”, matey.

    I think you mean it honestly, but the reality is, workers are shafted day in and out, they do not dare even asking for a decent lunch break. They fear for their job asking for normal, legal holiday entitlement. It was the damned Employment Contract Act, in 1991 or so, which the unions said they would fight, they also organised marches for, but to which they finally resigned.

    It was a half hearted Labour government that brought in the Employment Relations Act and only reversed some nasty provisions and conditions.

    I do not only blame it on the in the past a bit slack unions, I blame it on many GUTLESS KIWIS, and sadly too many KIWIS are GUTLESS, and that is why you have this damned situation in NZ.

    Ask yourselves, are you not rather wanting to “blame ” your neighbour”, envy the beneficiary for not working, are you not thinking that bloody migrant should work for his pay harder and make you happier, or should not be here in the first place?

    Are you not so proud of Key to tell the world to f-off? We need no environmentalism, labour laws, rules, laws to ensure this and the other? Is NZ not doing so much better than Greece and Spain, when even there welfare pays more than here???

    I am sure, NZers are a “proud” lot, “knowing” much, they fought Rommel in the desert, but the young ones never knew who that man was, nor the desert, so smart talk, smart thinking. The world is changing fast, NZ is a bit behind. I feel that this present status of affairs is redundant, and most Kiwis better wake up and learn Mandarin, as that will be your future language.

  11. xtasy 11
    26 February 2013 at 5:01 am

    It is one thing to legally set wage rates and the likes, and to a degree it is justified. Yet you cannot and will never create the social and economic system that you aspire by simply passing wage rates and laws. For once workers have a role to play, and they must stand up and take action, if they see fit to get basic pay and working condition rates. The employer organisations have to face it and deal with it, to make agreements that work for both.

    This actually works in most countries in Europe and elsewhere. You have the battle between workers and their representatives and the employers legally ensured, yet regulated also.

    Sadly there are many countries where working relationships are rather controversial, adverserial or even hostile. This is so in the US, UK and mostly Anglo Saxon economies of a “developed” kind, apart from 3rd world countries. This makes you think. Does the economic and social situation of certain countries perhaps have a reason that lies in the kind of society, legal and social system that abounds in a country?

    I am led to believe so, as it has over the last 20 years or so a proved history of Anglo Saxon, supposedly “free market” type countries and societies, where the division between better off and poor has grown immensely, where many standards and laws have been broken, and where the gap between rich and poor has grown immensely.

    There is NO ideal society, there is NO final and perfect solution, but I invite the Anglo Saxon residents and tenants to perhaps look at their own and other societies to address issues raised here. Good luck.

  12. Arfamo 12
    26 February 2013 at 2:08 pm

    Simon Bridges announces 25c increase to minimum wage.

    http://www.nzherald.co.nz/business/news/article.cfm?c_id=3&objectid=10867876

    “Setting these wage rates represents a careful balance between protecting low paid workers and ensuring jobs are not lost as the economic recovery gains pace.”

    He said the Government is firmly focussed on growing the economy and boosting incomes.”

    Christ. The Nats are impervious to both credibility and shame. What economic recovery is he talking about?

    • xtasy 12.1
      27 February 2013 at 1:13 am

      Simon Bridges is a slimy career politician, who adheres to the right wing interpretation of economic and social matters. Of course he will and has to “sell” this as great and “balanced” action by a government that really does not give a damn about the lower paid workers in NZ.

  13. tracey 13
    26 February 2013 at 3:18 pm

    He says they are creating an environment for jobs and stuff. They are like the santa of govts…. Well, fat and unreal.

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