Break with tradition calls for negotiation

Warehouse workers enjoy a well-earned break. Picture / Getty Images

Unionists worry ERA amendments due in March may open workers to exploitation

Please sir I want a tea break." In Charles Dickens' Victorian novel Oliver Twist, published three years after The Poor Law (Amendment) Act, 1834, the hungry workhouse lad wanted more porridge, but conditions in workhouses were designed under the act to be worse than those available outside to deter claims for poor relief.

In 2015 asking for basic necessities is called negotiation, and tea and lunch breaks will be one of the topics that employees and employers talk about when the Employment Relations Amendment Act 2013 comes into force in March. But the amended act is a cause for concern for CTU president Helen Kelly.

She says the act is part of a decline in employment rights in New Zealand, part of a worldwide attack on workers' rights and collective bargaining that is "orchestrated by global companies who work in the least regulated economies they can get away with".

On the subject of breaks (written into law in 2008), while the right to have them remains, Kelly says, what is missing from the law is any definition of what they are. The amendments require the employer to allow "reasonable opportunity" for "rest, refreshment and attention to personal matters", or to compensate where that is not considered possible for operational reasons.

Employer and employee are to reach agreement through negotiation. In sole-charge situations the employer must reasonably compensate the employee in lieu of breaks.

"It's not like you give two 10-minute breaks and a half-hour break. If you give [people] a break for one minute and no compensatory measures then [the employer can say], 'Oh I've given you your break'."

She cites the example of a hotel employer who told staff to work almost an entire shift without a break. The Unite union advised the employer that the act was not yet in force. "But the clear message is that after March these workers could work seven hours without a break."

Another concern is that young employees, migrant and shift workers who may have difficulty negotiating breaks could be exploited.

Paul Mackay, Business NZ's manager of employment relations, says the act does not take away the fundamental right to have a break. "What the changes do is say when people have breaks is a matter of practicality and agreement between employer and employee ... not having it is not the aim of the exercise."

Mackay says paying a person to not have a break would compromise health and safety, and be bad for morale and productivity. "My understanding of the law is that paying to get out of it is not on the cards. Employers can't contract out of the requirement to provide a break."

He says sole charge and shift work are the hardest situations, requiring more management than, say, an office environment.

He thinks abuses will "get the sunlight they deserve because the law is there for a good reason. People need them and health and safety suggests they are necessary. Not providing them would be against the spirit and the letter of the law."

Establishing breaks is not the only area of increased flexibility for the employer. Parties to collective bargaining are no longer required as a matter of good faith to conclude a collective agreement.

The Employment Relations Authority will be able to state that bargaining has concluded (not applicable where one party has acted in bad faith) and neither party will be able to re-initiate bargaining for 60 days following that statement without agreement from the other party.

Employers can also refuse to bargain for a multi-employer collective agreement and new employees will not automatically be employed under a collective agreement for the first 30 days.

Kelly says this removes the protection that collective bargaining and collective agreements give to workers.

"Strong social dialogue-type countries like the Scandinavians that have successful economies wouldn't dream of destabilising collective bargaining. New Zealand is on an absolute decline and the results show in our most vulnerable workers. We express surprise when service station and supermarket workers get their wages deducted. That is deregulation and those are not one-off cases, they are major companies. The fake outrage by politicians is galling because this is by design."

Kelly says the collective agreements for employees with Progressive Enterprises and BP service stations, directed by BP, protect workers and that there are no deductions. But this type of protection is likely to disappear if the ability to bargain and make collective agreements is eroded.

Her major concern is that this will see further reduction in wages in New Zealand -- where 300,000 people earn the minimum wage -- when they need to be going in the other direction. "Forty-three per cent of Kiwis didn't get a pay increase last year but 98 per cent of workers on a collective agreement did get a pay increase. It is the only proven mechanism in the New Zealand economy that delivers pay increases."