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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The freedom to belong

John Drinnan has placed the comments in his column in context. I mentioned them in an earlier thread. It’s helpful to know the backstory.

Drinnan says the Tan “row” has for some journalists brought to a head the tensions of belonging to a party-affiliated union. They ask, “can I be a unionist and not be caught up as a third party in a party election campaign?”

Fair enough. But implicit in  the suggestion that journalists will “face criticism they are in an organisation that is on the frontline backing one party” seemed to be the idea that they might be better to leave the union. It is difficult to divorce such a suggestion from the centuries of struggle for the right to have and to belong to unions.

One important point that has been overlooked in the current debate over Tan is that unions are inherently political organisations. Always have been and, as long as the distribution of wealth is determined within a system which is itself shaped by the struggle between capital and labour, always will be.

By struggle I don’t mean the sort of class struggle that my grandfather experienced. But the northern EMA’s recent ads contesting law changes to ensure employers contribute to their employees’ kiwisaver savings serve as a perfect example of how the interests of employers and employees are not identical, and that both groups continue to pursue their interests through political forums as well as industrial ones.

A very good case can be made for exempting unions from the prohibitions on discrimination on political grounds. As well as their “industrial” work, they promote their members’ interests through the political process. Reflecting their inherently political nature, unions played the major role in forming the Labour Party in the first place, and some continue to maintain links.

Because some union officials see themselves as “fighting the good fight”, problems will arise such as those that Drinnan outlines, where an organiser likened the union to “a religion”. Chris Trotter started his post on the EPMU’s response to Tan with, “unions … have an atrocious record as employers.”

I recounted in a comment to Chris’s post that as a trade union official I once went out with my colleagues because we’d been lied to by our management. When I was introduced to Ken Douglas on the street a few days later as one of those who took this industrial action, I was promptly denounced as a “wanker.”

It’s all about being in the “vanguard of the proletariat”, I guess.

Yes, as Drinnan writes, the union does belong to its members, not the staff. Some union staff functionaries have trouble understanding this. They mean well, but they have lost touch with what unions are really about. They been sucked into the political system, and they start to believe the puff about how wonderful they are, just like many of the managers with whom they have to deal.

To come back to the issue Drinnan raises, Herald journalists are working for a large capitalist organisation that has never failed to take the side of capital in any showdown with labour. They can strive for objectivity, but they don’t get to decide policy.

I can’t see how being a member of a Labour-affiliated union need have any bearing on the “professionalism” with which journos work, even in an election campaign. Unions are large organisations, and it is widely recognised that their members hold a range of political views. I’d like to know who is “pillorying” journos for their union membership. It’s wrong-headed and anti-democratic.

Journalists forgo their right to collectively deal with their employer at their peril. But yes, a media column can ask that question without it being part of a right-wing conspiracy.

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.

Are you Shawn about that, Herald?

The Herald’s attack on the EPMU over its handling of Shawn Tan’s contractual breach is instructive in the construction of propaganda.

After a fair summary of the facts as they stand, the Herald enters the realm of the right-wing blogger, always ready to paint its opponent with the worst possible spin, and then build on that as if on fact:

“That version of events avoids, as it must, any hint of the suspension being politically motivated. It falls a long way short of traversing this whole episode, however. It is reasonable to ask how the EPMU would have responded to a staff member who had agreed to stand for the Labour Party but had not told the union of his candidacy. Certainly, there would be no talk of suspension. Any breach of the collective agreement would be quickly and conveniently overlooked.”

It is a reasonable question to ask, and the Herald may indeed be correct in its suspicion that things might have been different had a Labour supporter breached the collective employment agreement in this way.

But it cannot say, “Certainly, there would be no talk of suspension.” (Emphasis added.) Especially if, as the EPMU alleges, Tan was reminded of this contractual obligation, the EPMU would be foolish to ignore it, regardless of the political affinity of the offender. Sets a precedent, you see.

Classic stuff. Make some unfounded assumptions for which you have no proof, and then you’re away. Later, more unfounded assertions:

“Mr Tan’s case suggests, in fact, that any fostering of candidacy is extremely selective. Indeed, the contractual condition requiring permission to stand in elections could be seen as enabling a scrutiny of candidate suitability as much as it allows the union to juggle workloads while a person is campaigning.”

Actually, it does not “in fact” suggest anything of the sort. The Herald seems to have missed the original report that states, “Earlier this year an employee’s request to stand for the Labour Party in local government was turned down.” That’s what is widely regarded as a “fact”, Mr/Ms Herald editorial writer, not your easy assumption made for the purpose of a cheap slur.

The people of Auckland deserve better than right-wing blogger invective dressed up as considered comment. The Herald is by far the largest circulation daily in NZ after all.

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.”

Shawn Tan & the EPMU

Note: I have responded to Idiot Savant’s attack and provided further comment on the employment issues in separate posts.

NZ’s largest private sector union, the Engineering, Printing & Manufacturing Union, has suspended an employee after he was placed on ACT’s party list (hat-tip Redbaiter). The EPMU says that Shawn Tan did not seek permission to stand as a candidate, and this is required by the collective agreement under which he is employed along with the Union’s rules.

Idiot Savant says, it’s just not on. I’m not quite so sure.

Certainly, unions’ role in regulating employers’ ill-treatment of workers and promoting workers’ rights does not exempt them from the very standards they seek to enforce. Discrimination on the basis of political belief is unlawful.

The Human Rights Act 1993 prohibits discrimination on the grounds of “political opinion, which includes the lack of a particular political opinion or any political opinion”, except “in relation to employment of a political nature.” The latter is spelt out and the EPMU is not covered.

However, the EPMU have not started disciplinary procedures because of Tan’s political beliefs. (Idiot Savant says “give him his job back”, but he hasn’t lost it yet.) The EPMU probably knew about Tan’s political beliefs before his placement on ACT’s list, but continued to employ him without prejudice it would seem.

They are concerned about his standing for office without permission, and that is a completely different matter. It would be possible, but unlikely, to stand for political office without any political beliefs whatsoever. Say for a dare.

Standing for office implies taking time off work. The EPMU want to be able as an employer to balance workloads. There is a contractual condition to ask for permission to stand as a candidate for this reason. Why didn’t Tan do this?

[Update: some reflections from Steve Pierson at The Standard.]

Industrial unrest: Chicken Little?

Today’s SST includes a warning from Engineers Union Secretary Andrew Little of industrial action over wages claims: “I think that’s without doubt. The scale of it I couldn’t predict, but I’m detecting among our members a real determination and good on them.”

Coincidentally, Statistics NZ released the latest statistics on industrial action (lockouts included) last Tuesday: “Twenty-nine work stoppages ended in the December 2007 year… This compares with 42 stoppages for the December 2006 year. Stoppages in the December 2007 year involved 3,980 employees, and losses of 11,035 person-days of work and $1.9 million in wages and salaries. In comparison, the 42 stoppages in the December 2006 year involved 10,079 employees, and losses of 27,983 person-days of work and an estimated $5.2 million in wages and salaries.”

Why the gap between Little’s warning and reality? Why, over the 7 1/2 years that the Employment Relations Act 2000 has been in force — during which we’ve seen an unprecedented tightening of the labour market — has there been so little industrial disruption? Since 2000, stoppages have ranged between 53 and 29 annually, well down from the peak of 567 in 1977.

After all, remember the doomsayers on the right, led by Prebble predicting unionist “jackboots” in our workplaces? Remember the desperate attempts of Wayne Mapp, National’s hapless IR spokesperson, to seize any hint of increased industrial action to prove that the sky was falling on our heads?

It seems that, with wage increases at or around the rate of inflation, NZ workers have been happy enough at work (the lower paid excepted). In a tight labour market, unhappy workers or those looking to improve their pay and conditions, have been able to switch jobs relatively easily.

There is very real pressure on the lower paid, on whom the price rises on household necessities impact greatest. But they were left without union representation in the first months of the Employment Contracts Act, and with 90% or so still left to their own devices, there’s not much likelihood of industrial action there. (Matt McCarten’s Unite aside.)

We are entering a new era for the ERA; it has never been tested on rough roads before. My pick is that industrial disputation will increase, and may very well surpass the 53 stoppages recorded in 2005. But the sky won’t fall on our heads. Andrew Little might finish up looking like Chicken Little.