Progress and contradictions: New Zealand's new sectoral bargaining framework

Abstract

8 | International Union Rights | 28/2 FOCUS | A CHANGING POST-PANDEMIC WORLD FOR LABOUR In 2018 I worked with the NZCTU’s legal advisor to co-author a submission to the UN’s Universal Periodic Review of New Zealand, which took place the following year. It was an interesting project to be involved with, because the violations of trade union rights in New Zealand are obviously less severe than many of the situations ICTUR normally responds to, but it was nonetheless an example of a country in which a very strong trade union framework had been dismantled, with sweeping and lasting impacts on the world of work. Does the new sectoral bargaining framework herald an effective tack back to a robust labour rights system? New Zealand remains one of very few countries in the world not to have ratified the most fundamental international instrument on trade union rights, ILO Convention No, 87. Historically, this peculiarity had come about not because of opposition to trade unionism, but conversely because New Zealand believed that its 1930s-era compulsory trade union system was superior to – and would be incompatible with – the post-war liberal trade union rights model of ‘freedom of association’1. The New Zealand Government thus refrained from ratification of the ILO instrument and only ratified the UN’s two core human rights Covenants (the ICCPR and the ICESCR) with formal reservations against the freedom of association principles. But the reservations New Zealand lodged were specifically worded to apply to ‘existing legislative measures’ in 1978, and were intended to protect a compulsory union membership system that ended decades ago. As ICTUR and the New Zealand Trade Union Council wrote in 2018 submissions to the UN Universal Periodic Review, ‘this once principled stance has simply become an embarrassing anachronism’ that ‘sends the wrong message about New Zealand’s commitment to freedom of association and the protection of that right’2. For most of the 20th Century registered trade unions enjoyed monopoly bargaining rights and a system of compulsory unionism, until the dramatic changes wrought by the Employment Contracts Act (ECA) of 1991, which remained in force until 2000. The Act supported individual bargaining and individual contracts rather than collective agreements and curtailed the grounds on which strike action could lawfully be initiated. Membership in NZCTU-affiliated unions halved over the decade. The fall was attributed to the ECA but also widespread privatisation and high unemployment. National bargaining was terminated in several sectors, and by 1993 there had been a 45 percent fall in the number of workers covered by collective agreements. In 1994 the ILO ruled that the ECA breached ILO Conventions 87 and 98, but the Government ignored the ruling. According to the NZCTU the ECA encouraged the growth of ‘poor quality jobs’, with an increase in casual and part-time work and exploitation of vulnerable workers by bad employers. It had also led to a ‘collapse of trust and good will’ in industrial relations. In elections in Nov. 1999 the Labour Party returned to office and introduced the Employment Relations Act (ERA). The ERA retained a focus on individual contracts and a workplace bargaining model, giving registered unions the exclusive right to negotiate collective agreements and introducing a new legislative concept (based on Canadian models) of good faith negotiations in collective bargaining. The NZCTU regarded the Act as only a moderate improvement that ultimately failed in many of its stated objectives. Following the National party’s return to power in 2008 a raft of reforms were introduced, which the NZCTU denounced as an attack on union membership, exercise of union rights, collective bargaining and, therefore, wages and conditions. For all the praise that the country’s current Prime Minster and Labour Party leader Jacinda Ardern earned internationally as a ‘liberal beacon’, and ‘the anti-Trump’3, the problems for New Zealand’s workers and unions have as yet remained structurally unchanged since the 1990s. Just this year NZCTU leader Richard Wagstaff reported that ‘at least 30 percent of New Zealand’s workers – over 635,000 people – are in insecure work. We believe it may well cover 50 percent of the workforce. 95,000 workers have no usual work time, 61...