By Jordan Carter
It's been inevitable ever since May 15th, 1991, when the Employment Contracts Act was passed. The labour movement reeled
at the attack on its power. Workers suffered abusive contracts, expulsion of their unions from workplaces, attacks on
wages and conditions, and an oppressive environment where it was clear that the boss was the boss and challenging them
would lead to very unpleasant things. The unions were practically broken too - membership plunged, and their job was
made next to impossible by being denied the right to access their members and workplaces. It would have to be undone -
and now, at last, it is.
A somewhat melodramatic picture, really - but not far off the truth. National has always had it in for unions and
unionism, and in the early 90's had the strength to neuter organised labour via statute. That was and remains the
intention of the ECA. It breaches ILO conventions by not encouraging collective bargaining, and it tilts the balance of
power in the workplace decisively in favour of employers. Thus the low level of strike activity in the last decade, and
the public's indoctrination by the mass media to think of unionism as an untidy, improper and basically inflexible and
dogmatic and evil force.
I'm now going to lapse into the territory covered by students of "Management and Employment Relations." Among other
things, this discipline provides a very useful set of tools for analysing employment relations from varying
perspectives. We'll call these frames of reference and at the largest scale there are three basic divisions. There is a
unitarist frame of reference - one which sees conflict as problematic. There is the pluralist frame - one which accepts
conflict as inevitable and stresses the importance of the institutional structure that is in place to mediate and
resolve that conflict. And finally, underlying and critiquing both is the radical or marxist perspective.
The Employment Contracts Act was a classic piece of unitarist legislation. It is based on two assumptions: first, that
the employment relationship is simply a service contract and should be treated as such, and second that conflict is
pathological in the employment relationship and that it should be suppressed. This led on to a whole raft of views - for
example, that unions should be removed, that compulsory unionism was gone, that individual contracts were the best way
for equal employers and employees to manage their relationship. Naughty unions would simply disappear, because in this
new, pure environment, friendly workers and their kindhearted and generous managers would just all get along.
If this all sounds slightly like the Brady Bunch or some other airy-fairy pile of feel-good hogwash, then that's simply
because it was. The unitarist perspective was implemented after 97 years (1894-1991) of an explicitly pluralist approach
which recognised conflict and had an institutional structure to ameliorate it. To some extent the ECA carried this on -
it retained the specialist employment court, and a lower level employment tribunal, and it continued to allow strikes
and lockouts. But the overall thrust of that Act was one that tried to pretend that conflict was caused by unions. They
therefore weren't recognised, or supported, or encouraged.
What the Employment Relations Bill (ERB hereafter) 2000 is about is twofold. In its philosophical framework it is a
return to the previous pluralistic approach. The second theme is a new development in New Zealand labour law, and that
is the good faith requirements that infuse the bill.
First, the pluralist approach. The ERB explicitly recognises that there is a power imbalance in the workplace. Employers
have more power than workers. It secondly recognises that the best way to allow workers to address that power imbalance
is not to give them power via statute, but is rather to make it easier for them to organise themselves collectively in
the workplace. This is an important difference from the old structures, which made the union movement so dependent on
statutory power (monopoly coverage, compulsory membership and so on) that when it was removed, they virtually collapsed.
There's no danger of that under this system. Unions are being given a modest boost to their powers - but they will have
to go out and fight for gains for their members. Nothing is going to come on a plate for unions from this new
legislation.
There is also, in the classic pluralist sense, a development of the institutions designed to mediate conflict. A new
"Employment Relations Authority" will replace the legalistic Employment Tribunal. Its decisions will be reached in an
informal way, quickly, and with the minimum of fuss. More importantly, it will look at the substance of complaints and
problems - not merely the procedural correctness. Looking at the substance of a query instead merely of its form is a
major advance which will assist in the speedier resolution of employment grievances.
"Good faith" is a fascinating development. Apparently an import from some North American jurisdictions, it requires that
negotiations be conducted in a civilised way. According to some comments, you'd think this was the end of the world, and
the sky was going to fall in. Personally, I can't see why making it a requirement that parties deal with each other in
good faith and not mislead each other is a bad thing. It re-emphasises the whole purpose of the bill, which is in Hon.
Margaret Wilson's words "[the new framework] is based on the understanding that employment is a human relationship
involving issues of mutual trust, confidence and fair dealing, and is not simply a contractual, economic exchange."
Radicals or marxists would criticise the ERB from the view that while it acknowledges conflict, it doesn't actually
address the fundamental structural power imbalance between labour and capital which comes to the surface in any
employment relationship. There's a good reason for that; in the current political climate in New Zealand, an attempt to
unleash (for example) trade unionism and push it along a revolutionary path would very quickly lead to massive political
reversals for the elected government.
So the ERB is a fairly moderate piece of legislation, aimed at improving employment relations and redressing the balance
of power in the workplace to a small extent. The fact that it is portrayed as otherwise in the media indicates its
symbolic significance - and that is something nobody should underestimate. For the Left, it's a redress of power which
was stolen from workers in 1991. A long overdue correction. For the Right, however, it's a removal of a cherished plank
of the "reform" programme of the 80's and early 90's. The dark and evil unions are being given some power, to do damage
to the kindly employers' interests, and interfere in the poor workers' lives.
I'll leave it to you to decide. This debate will go on and on, but I'm going to try and cut through the hyperbole the
right is addicted to on these issues and expose as much as I can what their interests are - the continued removal of the
ability for workers to effectively organise.
ends