2 – Repeated violations of rights
The ITUC Global Rights Index

New Zealand

The ITUC affiliate in New Zealand is the New Zealand Council of Trade Unions (NZCTU).

In practice

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Legislative barriers to promotion of collective bargaining26-04-2015

Changes to the Employment Relations Act 2000 which came into effect in 2015 create several new barriers to collective bargaining collective bargaining The process of negotiating mutually acceptable terms and conditions of employment as well as regulating industrial relations between one or more workers’ representatives, trade unions, or trade union centres on the one hand and an employer, a group of employers or one or more employers’ organisations on the other.

See collective bargaining agreement
including the right of employers to opt out from bargaining for multi-employer collective agreements when sent a notice of initiation (s 44A-44C of the Employment Relations Act 2000). Employers need not to give a reason for doing so. Effectively, this change blocks the ability of unions to bargain at any level above the enterprise.

Exclusion of film industry workers from the right to bargain collectively26-04-2015

Changes to the Employment Law introduced as a result of the dispute between the Actors Equity and the Film industry backed by the film giant Warner Brothers removed the right of workers in the film industry to challenge their employment status. As a result, film workers are now deemed contractors and miss out on collective bargaining collective bargaining The process of negotiating mutually acceptable terms and conditions of employment as well as regulating industrial relations between one or more workers’ representatives, trade unions, or trade union centres on the one hand and an employer, a group of employers or one or more employers’ organisations on the other.

See collective bargaining agreement
rights: they have no right to take industrial action industrial action Any form of action taken by a group of workers, a union or an employer during an industrial dispute to gain concessions from the other party, e.g. a strike, go-slow or an overtime ban, or a lockout on the part of the employer. in pursuit of a collective agreement or access to various mechanisms intended to help the parties to come to an agreement. Individually, contractors are denied protections against unfair disadvantage and unjustified dismissal, minimum statutory terms and conditions (such as minimum wage rates) and several protections implied into employment contracts such as good faith and fair dealing.

Refusals to negotiate 26-04-2015

A national chain of hardware stores – Bunnings – unilaterally changed working hours and introduced the obligation of on-call work with no guarantee of stable hours. The changes were unjustified in the view of the company’s recorded profits. In addition, the changes have been introduced regardless of the ongoing Parliamentary legislative debate to outlaw the zero-hour contracts. The company refused to negotiate changes with the unions.
AFFCO introduced several unfavourable changes to employment terms and conditions (including no obligation for the company to re-hire workers after seasonal lay-offs, cuts in wages, etc.) and either refused to meet with unions or proposed impossible-to-agree-to new clauses, with an apparent lack of intention to conclude an agreement.
The Talley’s Rangiuru Plan refused to negotiate planned lay-offs despite an obligation under the collective agreement and despite several requests for discussion from the part of the trade union. As a result, around 100 workers were laid off, all of them trade union members with security rights over workers with much shorter service.
Fresh Max company (fresh food supplier) had persistently refused to negotiate a collective agreement aimed at protecting workers, despite ongoing serious violations of fundamental rights, such as sexual harassment and assault and the use of child labour. The issue was finally solved only when the FIRST trade union went to the Countdown, the source company for Fresh Max, and demanded to put pressure on the basis of the Countdown’s ethical supply chain obligations and policies.

There were also cases of refusal to bargain amounting to anti-union discrimination anti-union discrimination Any practice that disadvantages a worker or a group of workers on grounds of their past, current or prospective trade union membership, their legitimate trade union activities, or their use of trade union services. Can constitute dismissal, transfer, demotion, harassment and the like.

See Guide to the ITUC international trade union rights framework

. The employer in the private education sector, when faced with an invitation to bargain from the part of the union covering teachers in the private sector, threatened workers with the immediate reduction of salary rates if the union insisted on bargaining. As a result the threatened workers left the union and the bargaining collapsed.

Interference in trade union activities 26-04-2015

During the recent visit of the MWU organisers to one of the AFFCO meat processing plants ( South Pacific Meats), the company imposed a condition of photocopying and vetting all union information that was to be distributed. Subsequently, the company introduced a ban for any trade union information materials at all sites. Trade union offices at all company sites have been closed. The MWU has issued legal challenges to these actions and is awaiting Court hearings.

Using illegal lock-outs to force workers to sign individual contracts26-04-2015

AFFCO has a long history of using lockouts to put pressure on unions and workers, including the recent lockout lockout A form of industrial action whereby an employer refuses work to its employees or temporarily shuts down operations. at the Wairoa plant where 200 workers were kept out of work for 135 days in order to force them to sign new individual contracts with very unfavourable conditions and serious cuts on wages. Although the Employment Court unanimously agreed in November 2015 that the lockout lockout A form of industrial action whereby an employer refuses work to its employees or temporarily shuts down operations. was illegal, violations of workers’ rights continued. The company reinstated workers to work exclusively on nightshifts and continued its efforts to de-unionise the plants including favouring non-unionised workers in distribution of working shifts.

Anti-union discrimination and intimidation26-04-2015

In direct relation to the AFFCO dispute, trade union members have been stood down and suspended without pay for wearing trade union T-shirts to and from work. Other workers have been sacked for distributing union information. Two union delegates were sacked for coming to work early to talk to union members who were upset about company action. Though they got reinstatement, they were laid off a week later. In addition, trade union leaders from both NZCTU and MWU have been threatened with defamation action for public comments regarding conditions at AFFCO plants and for speaking to a Government Select Committee (the Transport and Industrial Relations industrial relations The individual and collective relations and dealings between workers and employers at the workplace, as well as the institutional interaction between unions, employers and also the government.

See social dialogue
Committee) about health and safety violations at AFFCO.
In February 2015, FIRST trade union organised a protest against the failure of the Foodstuffs supermarket to enter into bargaining over low pay rates. The company called on the police and accused the participants of trespass and disorderly behaviour. As a result two unionists were arrested.
The MWU cites other examples of discrimination on the basis of union membership: these include non-union members being paid three per cent more, union members being shifted to lower-graded jobs and union members being laid off first during the seasonal lay-offs. As a rule, preference is given to non-union members for overtime and special duties. Such discrimination already infringes on the right of workers to freely choose the union. Those Talleys-AFFCO workers who are employed on the trial basis (up to 90 days) are not joining the union until the trial is completed because they know they will not be kept in employment if they join the union

NZCTU reports several violations of labour and trade union rights 26-04-2015

NZCTU reports several violations of labour and trade union rights that took place in 2015, many of them in relation to the ongoing anti-union conduct of Talleys (New Zealand-owned food company that employs up to 4,500 workers) and its subsidiary AFFCO (a meat processing company) targeting the members of the New Zealand Meat Workers Union (MWU). AFFCO supplies meat to supermarkets in the UK, a number of which are the Ethical Trading Initiative (ETI) members.

Collective bargaining obstructed for workers in the film and computer games industries01-07-2011

Workers in the film and computer games industries are contractors rather than employees - unless this is explicitly negotiated - as a result of changes to the Employment Relations Act (ERA). The ERA (Film Industry) Amendment Act 2010 denies film and computer game industry workers the opportunity to bargain for a collective employment agreement or to be represented by a union in employment negotiations. There is no specific union for computer game developers. Furthermore, the government changed immigration regulations in 2011 to enable easier access for overseas film workers to work in New Zealand. The union for the film sector fears loss of work and undercutting of wages and conditions.

Film and computer game worksites have restricted access on security grounds for commercial reasons. This impedes unions’ ability to gain information on informally reported health and safety lapses. Both sectors report workers regularly working in excess of fifty or sixty hours a week or more. The Department of Labour investigated a complaint against a games company in July 2011 from a contractor working 14 hour days, 7 days a week, for 4 weeks. The Department did not find sufficient evidence to lay charges but industry consensus was that such working hours were common. Two people received minor injuries in an explosion at Sir Peter Jackson’s Wellington film studio. The Fire Service put out the fire and investigated the explosion but was prevented by a secrecy order from speaking on the incident. Private reports have been received of previous accidents but information is difficult to gather with the security requirements.

Pressure not to join a union31-01-2011

Some workers have been pressured by employers not to join a union, or to sign an individual contract rather than a collective agreement, by financial incentives or through fear of the loss of a job, or demotion to a lower ranked job.

In 2011, AFFCO Meat Company offered employees at some of its plants an additional extra 3% in wages to accept individual employment agreements [IEAs] in preference to a collective employment agreement [CEA]. Those accepting IEAs were promised secure jobs and a NZD1,000 attendance bonus for 98% attendance. Meat Workers Union (MWU) members were laid off, but workers on IEAs with shorter service, were kept on. The employer had previously agreed to seniority guaranteeing longer employment. AFFCO employed non-union workers ahead of union members at AFFCO meat works at Imlay; Rangiuru, Horotiu, and Moerewa. MWU applied to the Employment Court to stop AFFCO’s actions. In April 2011, the Judge ruled in the union’s favour and said that AFFCO had to engage union members in accordance with seniority lists. The Judge found that AFFCO had favoured non-union workers in offering them longer contracts than unionised workers and that this practice was discriminatory. In a separate case in 2011, the Employment Relations Authority found that AFFCO had demoted a skilled senior employee down to a basic labourer’s position because of his union activities.

Even when legal action is successful, financial and other pressures may result in employees leaving the union. Industrial and legal action was initiated between the Dairy Workers Union and Open Country Dairy Ltd in 2009 following a bitter dispute with the company who reduced conditions of employment and union rights. The dispute was concluded in 2011 and the union won the right to collective bargaining collective bargaining The process of negotiating mutually acceptable terms and conditions of employment as well as regulating industrial relations between one or more workers’ representatives, trade unions, or trade union centres on the one hand and an employer, a group of employers or one or more employers’ organisations on the other.

See collective bargaining agreement
in Court, but the decision came too late for the workers and only 6 of the 34 locked out workers retained employment with the company. Those six workers subsequently accepted financial incentives to leave the union. Open Country Dairy now has no union members.

Increased use of contract workers31-01-2011

Private and public sector employers are hiring more workers as contractors rather than employees. Contractors are not covered by most New Zealand employment law which includes the right to organise, the right to take collective action, and the right to lodge personal grievance cases for wrongful dismissal. In 2011, the CEO of Ports of Auckland has threatened to make all union members redundant and replace them with contractors.

Expensive legal actions over employment issues including union access31-01-2011

In 2010 and 2011, unions succeeded in nine law suits taken to the Employment Relation Authority and Employment Court against food companies: Talley’s Group Ltd, AFFCO Ltd, and Open Country Dairy Ltd over employment issues including union access. Talley’s Group have acquired majority ownership shares in AFFCO Ltd and in Open Country Dairy in recent years. Only one of the cases resulted in a fine being imposed for breach of good faith. In other cases, the employer was ordered to comply with legislation such as enabling union representatives to have access to the worksite. The Meat Workers’ Union spent over NZD100,000 in litigation costs on disputes at one worksite. It was successful in Court but was only awarded a portion of this sum to cover costs.

It can take years and applications to three different judicial bodies for unions to get a final determination when employers are hostile to unions and well-resourced. In 2011, the Service and Food Workers Union (SFWU) and the Public Service Association (PSA) finally gained a pay-out for night duty residential care workers who had been paid below minimum wage for many years. After three years of legal action and years of negotiations the government mediated a law change for a partial pay-out that gave years of back-pay to the workers, but not the full amount that was owed. The cost of taking legal action is a drain on unions.

Difficulties with union access31-12-2010

In theory unions can access workplaces and can sign up workers as members. In practice, many employers oppose this and prevent easy access to members including requiring union officials to be accompanied at all times in entering a workplace and controlling the space and circumstances for union meetings with members. Some unions have already reported obstructive attitudes by employers prior to new access requirements coming into force on 1 April 2011. One employer Pacific Flight Catering blocked union access to the workplace for over two years until being required to grant access following legal action. Union visits to that workplace are still heavily monitored and supervised and a police check of the union official was required. Open Country Cheese attempted to prevent access to the Dairy Workers Union (DWU) union officials in June 2009 until the Employment Relations Authority ruled that access should be permitted. Other unions report oversight or impediments to workplace visits. The amendments to the Employment Relations Act in 2010 will only aggravate the situation (see “trade union rights in law”).

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