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Aotearoa/New Zealand Asia Pacific Labour Law Review Asia Pacific Labour Law Review Workers Rights for the New Century Asia Monitor Resource Centre 2003 Asia Monitor Resource Centre Ltd. AMRC is an independent non-governmental organisation that focuses on Asian and Pacific labour concerns. The Center provides information, research, publishing, training, labour networking and related services to trade unions, pro-labour groups, and other development NGOs. AMRC’s main goal is to support democratic and independent labour movements in Asia and the Pacific. In order to achieve this goal, AMRC upholds the principles of workers’ empowerment and gender consciousness, and follows a participatory framework. Published by Asia Monitor Resource Centre Ltd (AMRC), 444 Nathan Road, 8-B, Kowloon, Hong Kong, China SAR Tel: (852) 2332 1346 Fax: (852) 2385 5319 E-mail: [email protected] URL: www.amrc.org.hk Copyright © Asia Monitor Resource Centre Ltd, 2003 ISBN 962-7145-18-1 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmit- ted in any form without prior written permission. Editorial Team Stephen Frost, Omana George, and Ed Shepherd Layout Tom Fenton Cover Design Eugene Kuo Acknowledgements AMRC expresses sincere thanks to the following people and organisations for their gratefully received contributions to this book. Suchada Boonchoo (Pun) is co-ordinator for the Asian Network for the Rights of Occupational Accident Victims. We thank her for all the help in organising our conference of authors in Bangkok. Thanks to the American Center for International Labor Solidarity, Bangkok, Thailand for a financial con- tribution towards printing the book. We are indebted to Oxfam Hong Kong for their financial contribution towards the production costs. Thanks to the International Labour Organisation for allowing us to use photographs from their library free of charge. Eugene Kuo, a freelance photographer and designer, a big thank you for contributing photographs and de- signing the cover free of charge. Look at www.226-design.com for some of Eugene’s stunning work and ideas. To Tom Fenton, co-founder (with Mary Heffron) of AMRC – thanks a lot for advice, maps, and all the time devoted to the layout of the book, free of charge. E-mail: [email protected]. Finally, we would like to thank the International Centre for Human Rights and Democratic Development, Canada, for an extremely generous contribution that covered much of the publishing costs of this book. Without their last-minute financial assistance, it is possible that this book would never have proceeded be- yond the editing stage. E-mail: [email protected]; URL: www.ichrdd.ca. Asia Monitor Resource Centre Aotearoa/New Zealand Luci Highfield History A number of factors in the relatively recent history of Aotearoa are critical to an understanding of labour law today. In 1840 the Treaty of Waitangi (Te Tiriti o Waitangi) was signed between the Crown (made up of colonial rep- resentatives of the British monarchy) and a number of Maori tribes. Maori, who were the tangata whenua, or in- digenous people, had lived in Aotearoa for many centuries prior to colonisation by the British, French, and other Europeans. Apart from Te Tiriti, colonisation reaped its characteristic consequences – wholesale theft of land; war, sickness and death; oppression of Maori society and culture including language. Unions were quick to establish in the new colony with the first, the Benevolent Society of Carpenters and Joiners, established in 1842. Over the following decades many new unions formed, mainly based around trades. In 1890 a ‘sweating’ commission was established to investigate the gross exploitation of women and children, and this initially contributed to a large increase in unionism in 1890 (200 unions with a membership of 63,000). 1 Pacific and Oceania Following a 56-day seamen’s strike, the union move- On 15 May 1991, following the change to a conser- ment was temporarily defeated and reduced to 70 unions vative government, a fundamentally different regime with a membership of 8,000 by 1894. This decrease re- was introduced with the passing of the Employment sulted in passing the first labour law, the Industrial Contracts Act (ECA). Key characteristics of the ECA Conciliation and Arbitration Act 1894 (ICA) covering included: private sector workers. Public sector workers were cov- • a contractual free-market based model of indus- ered by separate legislation from 1912. The key charac- trial relations, with workers being employed on teristics of the ICA (and amendments) were: either individual contracts (one worker, one em- • compulsory union membership (for some of the ployer), or collective contracts (2 or more work- time the Act was in force); ers, one or more employers); • union monopoly on collective bargaining – with a • any form of compulsory unionism was not ex- system of occupational-based awards. Once regis- pressly permitted. In fact, the word ‘union’ did not tered, an award covered all workers employed in appear in legislation and union rights were greatly that occupation (known as ‘blanket coverage’); diminished to all but limited access and represen- • dispute and collective bargaining resolution tative rights; through conciliation and arbitration; • collective contracts could be entered into without • strike action was possible to protest a dismissal. any union involvement and collective bargaining This system remained fairly much in place until the was not a right guaranteed by the ECA. Unions had late 1980s, despite some changes introduced by the Indus- to obtain agreement from the employer to become trial Relations Act of 1973 (and subsequent amendments), a party to, and therefore be able to enforce, a col- such as the introduction of different classifications of dis- lective contract; putes (‘of right’ or ‘of interest’) and the consequent dif- • no mechanism such as arbitration was available to ferent statutory methods of resolution. assist the settlement of collective bargaining. In 1987 the Labour Relations Act was introduced. The ECA opened the door to wholesale de-unioni- While this made some changes to the previous system, sation of many industries, such as those in the service there continued to be an industrial relations environment sector, as employers forced workers onto individual where unions were a fundamental and powerful part of employment contracts secured on a ‘take it or leave it’ the landscape. basis. In the first two years of the ECA, the Service Changes included: Workers Union lost half of its membership, over 40,000 • compulsory union membership had to be negoti- workers. ated between unions and employers. Failing agree- During the 10 years of conservative government from ment, unions could ballot affected workers; 1990, many rural and urban areas were devastated by • as well as awards, agreements were lawful that widespread restructuring, redundancies, casualisation, covered just one employer; and outsourcing. No legislative protections existed to • arbitration was compulsory as ‘final offer’ arbitra- prevent these processes and the right to take a personal tion in the state sector, where awards or agree- grievance for unjustified dismissal did little to alleviate ments had expired for a prolonged period and one the harsh circumstances in many instances, particularly party had refused to bargain in good faith, and un- once cases got to the Court of Appeal, which was com- der the Employment Equity Act 1990. Otherwise, monly known for the right wing tendencies of a number arbitration was voluntary; of key judges. • collective bargaining outside the award or agree- Right wing politicians justified their extreme position ment (second-, third- etc. tier bargaining) was un- in areas such as labour law by pointing to New Zealand’s lawful unless a ‘new matters’ application to the small size, isolated geographical position, and position Court was successful; in the increasingly globalised economy. As a Minister of • prohibited strike action taken in protest of a dis- Labour said at the time, “New Zealand is a slow moving missal. crocodile in a fast moving river.” 2 Asia Monitor Resource Centre AOTEAROA/NEW ZEALAND During this period, New Zealand workers and their “a) to build productive employment relationships families were also hit with decreases in social security, through the promotion of mutual trust and confidence schemes such as ‘work for the dole’, the privatisation of in all aspects of the employment environment and of the accident insurance scheme, and market rentals for the employment relationship – housing. Large increases in the levels of poverty, un- i) by recognising that employment relationships employment, crime, and health problems, coupled must be built on good faith behaviour; with poor economic performance proved the right ii) by acknowledging and addressing the inherent wing ‘dream’ was a sham. inequality of bargaining power in employment re- By the time a left-wing Labour Alliance coalition lationships; Government was elected at the end of 1999, the situation iii) by promoting collective bargaining; for workers was grim. Urgent action was needed to try iv) by protecting the integrity of individual choice; and reverse the trends of 10 years and to address the 17 v) by promoting mediation as the primary prob- percent level of unionisation. The primary and principal lem-solving mechanism; solution came in the form of the Employment Relations vi) by reducing the need for judicial intervention; Act 2000, along with other industrial relations changes, and such as health and safety, accident compensation, and b) to promote observance in New Zealand of the prin- parental leave. ciples underlying International Labour Organisation Convention 87 on Freedom of Association, and Con- Contemporary snapshot vention 98 on the Right to Organise and Bargain Col- lectively.” In 2002 the landscape of employment relations law in The changes between the ECA and the ERA as well Aotearoa, while far from picture perfect, has begun to as the key features, are illustrated in the chart in Appen- improve for workers.
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