Shawn shown the door

ACT candidate Shawn Tan has been sacked by his employer, the Engineering, Printing and Manufacturing Union. (Previous posts here, here, here, here, and here.)

The EPMU says Tan had not sought permission to stand as required by the collective employment agreement under which he was employed, and that he used a work computer to send Act emails during work time.

Tan says he may take legal action. He can take a personal grievance on various grounds including discrimination on the basis of political opinion, or take his case to the Human rights Commission, but not both. My pick is that he will take a PG, in which case it is unlikely to be heard before the election, and even less likely to be determined by then.

Tan says:

“I would be prepared to go back if the conditions were right, for example if the EPMU could guarantee my safety, that I wouldn’t go back and face barrage or ridicule or the disparity of treatment. They couldn’t guarantee that and said I was asking too much. I was pretty disgusted by that actually.”

The EPMU, on the other hand, says that:

“The decision is about his employment obligations, it’s not about his political affiliations … he has employment obligations to the union and he has chosen not to abide by those. Added to that he has chosen to attack the union publicly.”

I have to say that Tan’s argument strikes me as quite novel and opens up a whole new dimension to the dispute. Is he arguing that he was constructively dismissed because his employer couldn’t guarantee his safety? There are plenty of cases where constructive dismissal cases have been won on such grounds. My favourite concerned a meter reader being repeatedly sent back into an area where a pack of wild dogs roamed free biting meter readers. providing a safe workplace is a duty implied in the personal employment contract by common law.

But the EPMU is only too well aware of this. If they sacked Tan for his contractual breach before he resigned, then I’m not sure that his arguments would get him very far in court. I’d be inclined to think that would mostly be about Tan’s breach of the employment agreement and whether he was discriminated against and whether his breach was sufficient cause for dismissal. (I could be wrong here, of course.)

The court of public opinion might be another matter.

Update : The Standard posts on the EPMU’s story, outlined in a public statement, timeline, documentation (pdf 2.6MB) and letter of dismissal. (Hat-tip: Julie.)

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Memo to Herald: Industrial Relations 101

This morning the Herald reports:

“District health boards have announced a settlement to the long-running and bitter employment dispute with junior doctors, but the doctors’ union says they are only considering an offer.
… Deborah Powell, for the doctors, said the boards had simply made an offer which had been taken back to union members.”

Powell is right. It’s the law:

Section 51 Ratification of collective agreement

(1) A union must not sign a collective agreement or a variation of it unless the agreement or variation has been ratified in accordance with the ratification procedure notified under subsection (2).

(2) At the beginning of bargaining for a collective agreement or a variation of it, a union must notify the other intended party or parties to the collective agreement of the procedure for ratification by the employees to be bound by it that must be complied with before the union may sign the collective agreement or variation of it.

It is not uncommon for the members to reject a crappy pay deal, even with the unions’ endorsement (and from memory the Herald has reported such a case in the health sector in living memory), or for unions to take back to their members settlements where they are uncertain of their members’ response (say, because the management representatives are adamant that the workers will accept).

It is not clear here whether the RDA is recommending acceptance, or whether it will simply say “this is the best offer to date, if you want more than this you’ll have to take strike action again.” From what Powell says, it sounds like the latter. In which case the DHB’s representative is being previous, and possibly mischievous.

The point that the Herald seems to be missing is that the union is, at the end of the day, governed by its members. Despite what some people think, union members are not puppets dangling on the ends of union officials’ strings. That charicature may arguably have had a modicum of truth thirty years ago, but it is time to lay it at rest.

Junior Docs’ dispute with DHBs settled

The Resident Doctors’ Association and the DHBs have settled their dispute. Radio New Zealand reports that:

“District Health Boards announced on Tuesday they have agreed on a proposed settlement with the union representing junior doctors, and it will now go to doctors for their response.The pay deal is believed to extend until the end of 2009, incorporate a 5% lump sum and an increase of at least 8.65%.”

The 15 month-old pay talks had been deadlocked for months with the junior doctors striking for 48 hours in April and May.

The terms of the proposed settlement must, of course, be ratified by the union’s members, as the RDA points out. It is therefore premature to make the announcement as the DHBs’ representative has, so I will not comment on it further.

Previous post here.

Rats

Matt McCarten’s Unite Union is noted for its innovative and determined approach to low-paid workers’ struggles. Now it has a new ally. Doesn’t have a name, so I’ll just call it Cheesy for now, though some are no doubt calling it Nigel.

Yep, UNITE have deployed a 20 foot high inflatable rat in their current struggle at Sky City:

“We wanted to tell the new SkyCity CEO Nigel Morrision not to be a rat and treat his staff decently,” said Unite National Director Mike Treen.

“After all he is one of New Zealand’s highest paid CEOs yet proposes to pay his workers the minimum wage and a wage offer to the rest of his staff that is less than the inflation rate.”

It’s the same old story. New Australian CEO thinks he’ll show the kiwi unions who’s boss. Where have we heard that story before?

Speaking of the low-paid workers and “dirty employers”, a former employee at a McDonald’s franchise in Kaiapoi has won $15,000 compensation for being constructively dismissed after joining Unite. (Decision here.) Treen says:

“… the union often has problems with McDonald’s franchise operators in complying with their legal obligations. They often take the decision of their employees to join the union as a personal affront.”

Fast food workers are often vulnerable as they are employed as “casuals” with no fixed hours of work. This allows the boss to punish or effectively dismiss workers simply by reducing or eliminating their hours. Unite is pushing for “security of hours” to be included in a new Collective Agreement with McDonald’s.

I heard a McDonald’s Restaurants (New Zealand) Ltd manager on the radio this morning being quoted as saying that many workers wanted the flexibility, but this is not in the on-line report and there is no press release on the McDonald’s site. Anyway, you decide where the truth lies.

Update: Anna McM at the Handmirror posts on Chantelle Coup’s victory.

Giving workers a break

Something to celebrate! Parliament has passed an amendment to the Employment Relations Act providing for facilities for breastfeeding at work and giving workers automatic entitlements to paid, if minimal, rest breaks:

• a 10-minute paid rest break after having worked for a 2 hour period.

• after 4 hours, but less than 6 hours, a one 10-minute paid break and a 30-minute unpaid break.

• after more than 6 hours but less than 8 hours, two 10-minute and one 30-minute unpaid break.

The background to this was traversed in an earlier post. Despite the National Party’s employment relations spokesperson saying that “by all accounts, common sense prevails and [employees being given meal and tea breaks] does happen”, it doesn’t. (She also displayed her ignorance of her shadow portfolio area by saying that “arguably [teabreaks] are enshrined in the health and safety legislation”, when they’re not. Not even “arguably.”)

Well done to Trevor Mallard and all those involved.

Farmers stand up to greedy workers?

Well, that’s what they’d like you to believe. The Southland Times leads its story:

“Short-staffed dairy farmers were being exploited by southern farm workers demanding “ridiculous” wages, industry insiders said.”

Surely not, you say, and you’d be right. Read on…

“Director of dairy farm workers recruitment company Greener Horizons Workforce Peter Macfarlane said some southern farm workers with little experience were demanding up to $50,000 a year plus free accommodation from farmers struggling to attract staff.” (Emphasis added.)

First off, what the farmers are complaining about is called capitalism, often summed up as “what the market will bare.” Apparently the farmers think that they should benefit from the operation of capitalist market economics, but not workers. Bring back serfdom?

If the farmers are going to eschew exploiting movements in supply and demand, I look forward to paying half as much for the next block of cheddar, thanks!

Secondly, we are talking about “some”, unspecified number, of workers demanding “up to” $50,000. How about basing alarmist headlines on a some hard facts, Southland Times?

Thirdly, as anybody who has completed an introductory economics course can tell you, the demand for labour is derived from the demand for the goods and services that labour is used to produce. Hence the term “derived demand”. Nothing newsworthy here, surely?

This is hilarious. As the local union secretary points out, the farmers don’t hesitate to “exploit” the workers every chance they get. Some farmers are having trouble getting workers because of “the way they have treated workers in the past,” he says.

These workers work “50–60 hours a week on average over a year.” Federated Farmers is describing the $35,000p.a. going rate as comparable to what university graduates earn. My students in recent years would laugh their heads off at that suggestion.

The CTU has responded:

“Workforce shortage issues will continue in the rural sector unless farmers and growers start to develop long term strategies for growing their own workforces,” Council of Trade Unions president Helen Kelly said today.”

Listen up cockies. You need to start investing some money in the people you employ, just like the CTU says: “This includes decent wages, training, prospects and conditions of work.” Until you do, don’t expect any sympathy if you have trouble hiring NZers to work on your farms. They’re not serfs.

Update: Homepaddock comes at this from a different point of view.

Striking times

More warnings of a summer of strikes in this morning’s Herald:

“A surge in workplace strikes could hit New Zealand because of tough economic conditions, an employment relations specialist says.”

Fred Adelhelm points to workers struggling with rising food and fuel costs and a few recent high-profile wage deals putting unions under pressure to seek increases of 5% or more. This may lead to strife he says:

“The gaps between what employers are prepared to pay and union demands are unusually wide and are unlikely to be bridged by negotiations alone.”

“These opposing forces are going to make wage negotiations fairly robust for the rest of the year. A spike in strike activity for the remainder of 2008 is a distinct possibility.”

This analysis echoes Andrew Little’s warnings in April. I posted at the time on the gap between Little’s rhetoric and the reality of a quiescent workforce. Adelhelm has raised the issue again, and there is more justification to make such a prediction now.

But I’m still sceptical about a summer of discontent. Workers may be amenable to arguments about the bottom line if employers are willing to share financial infomation and do deals around job security, work/life balance and other important issues.

One point in passing. The Herald reporter implicitly makes a pitch for the Employment Contracts Act 1991 and gets things wrong:

“For the year ended March, there were 26 work stoppages, down from 40 over the same period last year, reflecting an overall downward trend since the early 90s.”

Take a look. Stoppages (as measured by NZ Statistics) started falling in 1977 and continued falling to historically very low levels before 1991. The ECA did not result in a marked decrease in industrial action. Them’s facts.

Herald attack on EPMU goes all out

The Tabloid on Sunday is tragic. It can only be a deliberate attempt to sink the EPMU and the Labour Party. From this morning’s unbelievably biased piece on Shawn Tan’s employment dispute with his employer:

“He also claims if he was standing for the Labour party, he would still have his job.”

This is factually incorrect, and the Herald must surely know that. Tan has not lost his job. He has been suspended while his empoyer investigates a breach of his collective employment agreement.

But this is not the first time the Herald has distorted the truth in its pursuit of the EPMU. Thursday’s editorial was a masterclass in presenting unfounded supposition as fact.

The Herald’s antipathy to the union takes a sinster edge in John Drinnan’s Thursday column:

“But [the employment dispute, which Drinnan terms a “row”] illustrates what Little acknowledges is a tension between the EPMU – working actively for re-election of Labour – and journalist members who are required to be independent but are pilloried for belonging to a Labour-affiliated union.

“The EPMU insists that journalist membership fees are kept separate from calculations contributing to its affiliation payments to Labour and is changing rules for other members to define whether their membership is counted in contributions to Labour and the Greens.

“But as the election season ramps up, journalists have to face criticism they are in an organisation that is on the frontline backing one party.”

Arrant nonsense. The biggest irony is that this attack on the journalists’ freedom to join a union of their own chosing comes from an employer which purports to be defending Tan’s right to stand for Parliament (whatever the operational consequences for his employer and regardless of the contractual provisions of his employment).

Why the Herald’s dogged attacks on the EPMU? Well, are newspaper employers the world over currently trying to reduce their wage bills? Has the Herald been consistently attacking Labour and its allies over the past year?

I’m thinking that there’s enough obvious lying and carelessness with the facts here for a complaint to the Press Council.

Memo to EPMU: What to do

Julie asked in a comment earlier this morning what I would suggest the EPMU do.

Well, I think that they have got back on the right track after a few (apparent) stumbles. At the end of the day this is an employment dispute, whatever else the likes of Idiot Savant and Whale Oil think.

Stick to the employment issues, EPMU.

Issue a final warning.

And sue Hide over the ridiculous allegations of racism.

The key employment issues seem to me to be:

• Does Tan’s action in not seeking the employer’s agreement to his standing for public office, as required by the collective employment agreement under which he is employed, constitute grounds for dismissal or a lesser disciplinary measure?
• Do his subsequent media comments constitute grounds for disciplinary action?
• Did the EPMU discriminate against Tan on the grounds of his political opinion? (This is a claim that Tan has made in the news media, but it is unclear whether he intends to proceed with it. I suspect not, although he could lodge it for the publicity and quietly withdraw it after the election.)

My view is that dismissal on the basis of Tan’s breach of contract (in not seeking prior consent) might well be found to be justified in court, but I wouldn’t bet on it. Especially if the comments that Tan claims were made by his supervisor were made and he could then reasonably argue that he was put off applying. I myself would go for a final written warning. (Note that previous warnings are not required before moving to a final written warning, as some people think. It depends on the seriousness of the action.)

I’m not sure that the court would take into account the subsequent media comments in determining the justification for a dismissal at this stage. They would certainly take them into account in deciding whether to reinstate; there’s plenty of case law on that.

As I don’t have all the facts, and those in the public arena are confusing, it’s hard to say whether Tan would be successful in an action based on breach of the Human Rights Act or the similar anti-discrimination provisions in the Employment Relations Act. I suspect not, because (1) the union never got to deliberate on whether it would consent to his candidacy (2) it has declined employees wanting to stand for left parties in the past. The latter would make it very difficult for Tan to show that he’s been treated differently.

In respect of that last issue, various right-wing bloggers have put a great deal of weight on remarks purported to have been made by Tan’s supervisor, presumably the “lead organiser” in the four person call centre. I doubt whether a court/tribunal would put the same weight on those remarks, given that it was up to the union’s executive to make the final decision.

Final points. Whale Oil states that the collective agreement between the EPMU and its staff breaches the Bill of Rights and the Human Rights Act. I think he’s talking through a hole in his head.

Also, Idiot Savant is free to campaign to change the law to mandate employers granting large amounts of unpaid leave to any and however many of their staff that want to stand for public office. Fine. Is ACT supporting him on this? Of course not. Hence, I suspect, the ridiculous allegations of racism.

Shawn the pawn

Seems yesterday’s mediation attempt in the Shawn Tan case didn’t resolve matters. Given that ACT seemed to be wringing all it could out of the affair, this is hardly surprising. I mean, just look at the cast.

Shawn Tan, whose comments to date reveal a lack of maturity and love of the limelight.

Rodney Hide, putting on a great show of outraged indignation for the uncritical press. He was probably just in the neighbourhood to pose for the cameras, I guess. Look what Granny prints with a straight face:

“They made a prejudiced decision because they thought that because he was Asian, because he was Chinese, he would do the meek and mild thing and not stand up for himself.”

No evidence. No plausiblility even. Does he really think that the EPMU hires people because they’re “meek and mild”? They’re a union FFS! My experience of recent immigrants from China is that they are a varied group, of course, but just as assertive on the whole as any other group in NZ society. Does Hide’s outburst reveal more about his own prejudices than anything else? Still, Rodney, never mind the weirdness, it’s the publicity that counts, eh?

Max Whitehead, of the Whitehead Group (looks like there’s only him in the group, though) who seems to sport an oversized ego and unrealistic assessment of his own “professionalism.” Max, professional employment advocates don’t say things like this when there are in the middle of the mediation process:

“Max Whitehead, Mr Tan’s advocate, argued that he should be free to do what he liked in his spare time and it was shocking his role with the EPMU had become a political issue.”

Whitehead is virulently opposed to workers’ rights and seems to have a view of employment relations that borders on the paranoid. For example, employers who train their staff later discover “that far from creating a major asset for their business they have created a major competitor.” Also, “it is common knowledge among workers that many small to medium business fail to comply with the employment laws. This has opened the legal floodgates to employees disgruntled with their working conditions or pay.” And so on.

For Max, it’s employers good and workers bad… unless, of course, the employer is a union.

So, by Tan’s account:

“… the EPMU bosses “skirted around” the issue of whether his new role put him at odds with its core beliefs, choosing to focus on other employment issues.”

No kidding. In an employment issues mediation meeting the union representatives wanted to talk about employment issues.

Come on Granny, you can do better than this! Hide didn’t go “into bat for sacked union worker” and you know it. Tan’s not even sacked yet, idiots. An honest headline would be, “Hide milks affair for all it’s worth with weird racial outburst.”