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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H&M suspend staff amid wage bargaining24-04-2021

The H&M clothing chain suspended 14 workers on 24 April 2021. FIRST Union said H&M staff had been negotiating a new agreement for several weeks after struggling with their current pay.
The workers were immediately suspended when they turned up for work.
“Essentially the company’s punishing them for trying to achieve the living wage,” FIRST Union retail sector secretary Tali Williams told the press. The union said H&M was able to afford paying staff a living wage but was choosing not to.
The union recalled that in 2019, unionised workers at H&M were locked out after wearing stickers in stores calling for fair pay.

Bargaining rights ignored as bus company imposes lock out 24-04-2021

The Tramways Union filed proceedings in the Employment Court on 23 April 2021 seeking an urgent injunction against NZ Bus for imposing an indefinite lockout on Wellington bus drivers.
The previous day NZ Bus had notified Wellington bus drivers that they would be locked out from their jobs unless the drivers agreed to pay cuts and changes in their conditions of employment by accepting an inferior employment agreement. The announcement of the lockout came after months of bitter negotiations over a new collective agreement. Because they wanted to reduce conditions of employment, NZ Bus had refused an offer by the Wellington Regional Council to fund a living wage adjustment.
The president of the New Zealand Council of Trade Unions (NZCTU), Richard Wagstaff, warned that the lockout was threatening the livelihoods of bus drivers and was likely to be in breach of the law.
Transport Minister Michael Wood strongly urged the company to withdraw the notice. Mr Wood warned of the “unacceptable impact” an indefinite lockout would have on people and business in the capital. He was also concerned about the “disproportionate impact on vulnerable workers by indefinitely locking them out unless they accept the company offer”.
At the hearing on 24 April, the Employment Court ruled in the bus drivers’ favour and granted an injunction against the lockout.

Difficulties to engage in collective bargaining in the education sector23-01-2020

In 2019, the Post Primary Teachers’ Association and NZEI Te Riu Roa filed a case in the Employment Relations Authority (the industrial tribunal) in relation to the Ministry of Education’s refusal to meet to negotiate the inclusion of new teaching positions into the relevant teachers’ collective agreements. The Association was required by the Employment Relations to attend facilitation, which is a pre-arbitration step, that was requested by the Ministry of Education after negotiations broke down. However, the facilitation did not occur, as settlement of the bargaining was reached.

Employer challenging a protest in court23-01-2020

In its most recent report, the New Zealand Council of Trade Unions (NZCTU) explained that in 2018 an employer challenged the use of a giant inflatable rat by a union as part of a protest. The employer brought a claim to the Employment Court and argued that the use of the rat was bad faith in collective bargaining (Kaikorai Service Centre Limited v First Union Inc. [2018] NZEmpC 160).

Still no compensation for locked out workers at AFFCO Meat18-02-2018

The Meat Workers Union has continued litigation with Talley Group’s AFFCO Meat on behalf of the hundreds of workers who were found by the Employment Court to have been unlawfully locked out in November 2015. While workers have been back at work for some time, there has been no compensation paid as yet, in particular to 150 workers at Wairoa who were without incomes for around three months.

In 2017, after the union won against AFFCO’s attempt to appeal the judgement of the Employment Court, AFFCO appealed to the Supreme Court, which eventually upheld that the workers had been unlawfully locked out. Meanwhile, there had been separate Employment Court cases and decisions about the calculation and nature of compensation. AFFCO filed another appeal against the decision of the Court. No date for examination had been set down at the date of writing. In the meantime, AFFCO sought recall and also a Judicial Review of the Employment Court decision. Both applications did not succeed. However, workers remain without compensation, and it is unlikely that courts will hand down a judgement before 2019, more than three years after the initial lockout.

Stalemate in collective bargaining at Talley’s AFFCO18-02-2018

Bargaining has stalled at Lean Meats, a Talley’s AFFCO-owned meat company. Bargaining was initiated in 2014 and after a compliance order from the Court in 2016, some rounds of collective bargaining took place. However, union representatives rejected the company’s proposed collective agreement and since then, Talley’s have refused to resume bargaining. The New Zealand Council of Trade Unions (NZCTU) also reports ongoing harassment in the company with blatant antiunion attitude and activities.

Qantas unilaterally changes the rosters despite the collective agreement18-02-2018

The Unite Union and Qantas Airways had a collective agreement in place from 2015 to 2017 regarding the implementation of a preference-based roster. This rotation system had been introduced after a popular vote by employees. But a year later Qantas proposed a change back to the earlier rotating rosters. However, in May 2017 Qantas unilaterally decided to change back to the earlier rotating rosters. A case was taken by the union representing four workers who rejected the proposal to revert back to the old roster. The Employment Relations Authority (ERA) found that Qantas had breached the collective agreement with the union and that despite there being no agreement with the union, Qantas had imposed a change in the rosters in May 2017. The ERA determined that while it was claimed that this was a trial roster, Qantas had not made any mention of it being a trial nor had it identified any end date in the information provided to employees and meanwhile had employed 51 new workers on the roster. Qantas had also failed to attend mediation to attempt to resolve a dispute before implementing the new roster patterns, and this was a breach of its good faith as an employer. Qantas has been ordered to pay NZD 6,000 to its employees for changing rosters without their agreement.

The New Zealand Defence Force reluctant to bargain with unions18-02-2018

The New Zealand Council of Trade Unions (NZCTU) reports that there have been many instances in the public sector where authorities have refused to negotiate pay rates in collective agreements. The New Zealand Defence Force (NZDF) has been particularly resistant. Recently, the Public Service Association (PSA) won a case against NZDF in the Employment Relations Authority, which ordered NZDF to negotiate pay with the PSA.

Disregard for freedom of association and collective bargaining at South Pacific Meats18-02-2018

The South Pacific Meats Company, a company owned by Talley’s Group, continues to be difficult to organise, due to ongoing difficulties around access, and the company’s refusal to respond proactively to collective bargaining requests. There have been a number of incidents relating to breaches of access rights, all of which have been won by the union, but access continues to be highly contested by the management, and there is a lot of fear about joining the union.

Dismissal of FIRST union members at Savemart30-09-2017

In April 2017 workers at Savemart joined FIRST Union. Savemart is a New Zealand-wide for-profit business which receives (via public donation bins) and sells second-hand clothing. The workers wished to negotiate for a collective agreement to protect and ensure safe working conditions. The union initiated collective bargaining. As well as normal bargaining issues such as pay, staff raised serious concerns about health and safety and privacy issues, as workers were being required to sort through dumped clothing which contained toxic rubbish including used needles, dead rats, faeces and other hazards. Workers said they were prohibited from using basic protective equipment such as gloves and were not provided with masks.

In April 2017 FIRST Union formally raised issues of privacy and health and safety without response. In September 2017 the company physically separated union members from non-union staff and announced that they were restructuring the branch. The company proposed dismissing the union members by way of redundancy. In mid-September 2017, union members were issued with letters of dismissal. The matter received media attention and the dismissals were later revoked.

Repeated refusals to bargain at Kaikorai Service Centre Ltd12-02-2017

Kaikorai Service Centre Ltd, trading as Invercargill Pak ‘n Save, refused to bargain wages with FIRST Union. Pak ‘n Save is a major brand of the cooperative Foodstuffs (one of the two major supermarket retailers in New Zealand). The Employment Relations Authority issued a determination in January 2017 stating that, in the circumstances, the employer’s repeated refusal to collectively bargain wages with FIRST Union was unlawful and amounted to a breach of good faith.

St. John’s ambulance service halts collective bargaining01-01-2017

At the beginning of January 2017, the St John ambulance service lodged an application with the Employment Relations Authority to withdraw from bargaining with First Union without finalising a collective agreement.

St John Ambulance staff who are members of the First Union started a three-month partial strike from Christmas Day 2016, after collective agreement negotiations continued to break down.

Union spokesman Jared Abbott said St John spent less than two hours at the bargaining table and the service had never proposed terms for a collective agreement.

On 5 January 2016 it was announced that St John Ambulance officers who stopped wearing their uniforms as part of ongoing strike action would have their pay docked by 10 per cent.

Meat company found guilty of breaching collective bargaining rights30-09-2016

At the end of September 2016, Land Meat New Zealand (LMNZ), owned by Affco/Talley’s, was fined NZD 15,000 for failing to negotiate with the New Zealand Meat Workers and Related Trades Union in good faith. The company’s refusal to engage in any meaningful way with the union over a bargaining process was “a deliberate, serious and sustained breach of good faith over a period of several months”, the Employment Relations Authority ruled.

Negotiations at the meat processing plant in Castlecliff, Whanganui, were due to begin in May 2014 but were delayed until 2015 owing to restructuring. When negotiations resumed, they quickly hit stalemate. The process dragged on for many months, but the company failed to agree on the wording of the agreement, and was found guilty of bargaining in bad faith.

In a similar case, at the beginning of October an appeal court upheld the Employment Court’s ruling that Affco/Talley’s had breached the Employment Act by locking out 170 staff who refused to sign new individual contracts while collective bargaining was still in progress. Talley’s had insisted workers could only return if they accepted new inferior individual terms of employment which among other things abolished seniority. The demand to accept new agreements undermined the process of renewing the collective bargaining agreement.

Meat company tries to silence union and exclude delegate 15-05-2016

The New Zealand meat company Talley’s responded to criticism of its health and safety record and serial rights abuses by applying on 22 April 2016 to the Employment Authority to shut down all social media criticism of the company by the Meat Workers Union (MWU) and its members. It also sought to ban the union’s director of organising, Darien Fenton, from representing members during talks or mediation with the company. The move came after the publication of New Zealand official health and safety statistics sparked discussion on social media about the company’s poor health and safety record. The statistics showed that in 2015 the number of non-severe injuries at Talley’s-owned meat plants rose six per cent while the number of serious injuries recorded remained similar to the previous year. This was in contrast with the other big five local meat companies where strong union and management health and safety cooperation had seen the number of injuries fall dramatically.

The matter was passed on to the Employment Court which in November 2016 turned down Talley’s request to silence the unions.

There had been previous attempts to silence the union and obstruct its activities. In May 2016 Talley’s was fined for trying to prevent Meat Workers’ Union officials from distributing union materials. Katrina Murray was awarded NZD 35,000 after the ERA agreed she was subjected to unjustified action and unjustified dismissal for sharing a union newsletter around the Awarua plant in Invercargill. Co-worker Cliff Kruskopk was awarded NZD 3,700 after he was given a formal warning for pinning a newsletter to a noticeboard.

In February 2016 the Talley’s-owned South Pacific meats was fined NZD 144,000 by the Employment Authority for refusal to allow union access.

Union officials arrested while trying to meet members14-02-2016

Two First Union officials were arrested and detained in Nelson on 14 February 2016 for trespass during a community rally after they tried to enter Nelson New World and the Richmond PAK’nSAVE. New Zealand Police’s own advice to its officers is that they should not block workers from accessing their union representatives, the New Zealand Council of Trade Unions (NZCTU) pointed out. “NZ Police’s staff magazine (4 February 2005) issued advice to officers reminding them that ‘an employer may not rely on the Trespass Act 1980 to eject the union representative’ yet this is precisely what has happened,” said NZCTU secretary Sam Huggard.

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 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 rights: they have no right to take industrial action 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. 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 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 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 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 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”).

Increased use of contract workers31-12-2010

Private and public sector employers are increasingly hiring workers as contractors rather than employees. Contractors are not covered by provisions of most New Zealand employment law including the right to organise, the right to take collective action, and the right to lodge personal grievance cases for wrongful dismissal. They are also not entitled to sick or holiday leave or overtime payments.

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