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On The Left - Relations, not contracts

By Jordan Carter

It's been inevitable ever since May 15th, 1991, when the Employment Contracts Act was passed. The labour movement reeled at the attack on its power. Workers suffered abusive contracts, expulsion of their unions from workplaces, attacks on wages and conditions, and an oppressive environment where it was clear that the boss was the boss and challenging them would lead to very unpleasant things. The unions were practically broken too - membership plunged, and their job was made next to impossible by being denied the right to access their members and workplaces. It would have to be undone - and now, at last, it is.

A somewhat melodramatic picture, really - but not far off the truth. National has always had it in for unions and unionism, and in the early 90's had the strength to neuter organised labour via statute. That was and remains the intention of the ECA. It breaches ILO conventions by not encouraging collective bargaining, and it tilts the balance of power in the workplace decisively in favour of employers. Thus the low level of strike activity in the last decade, and the public's indoctrination by the mass media to think of unionism as an untidy, improper and basically inflexible and dogmatic and evil force.

I'm now going to lapse into the territory covered by students of "Management and Employment Relations." Among other things, this discipline provides a very useful set of tools for analysing employment relations from varying perspectives. We'll call these frames of reference and at the largest scale there are three basic divisions. There is a unitarist frame of reference - one which sees conflict as problematic. There is the pluralist frame - one which accepts conflict as inevitable and stresses the importance of the institutional structure that is in place to mediate and resolve that conflict. And finally, underlying and critiquing both is the radical or marxist perspective.

The Employment Contracts Act was a classic piece of unitarist legislation. It is based on two assumptions: first, that the employment relationship is simply a service contract and should be treated as such, and second that conflict is pathological in the employment relationship and that it should be suppressed. This led on to a whole raft of views - for example, that unions should be removed, that compulsory unionism was gone, that individual contracts were the best way for equal employers and employees to manage their relationship. Naughty unions would simply disappear, because in this new, pure environment, friendly workers and their kindhearted and generous managers would just all get along.

If this all sounds slightly like the Brady Bunch or some other airy-fairy pile of feel-good hogwash, then that's simply because it was. The unitarist perspective was implemented after 97 years (1894-1991) of an explicitly pluralist approach which recognised conflict and had an institutional structure to ameliorate it. To some extent the ECA carried this on - it retained the specialist employment court, and a lower level employment tribunal, and it continued to allow strikes and lockouts. But the overall thrust of that Act was one that tried to pretend that conflict was caused by unions. They therefore weren't recognised, or supported, or encouraged.

What the Employment Relations Bill (ERB hereafter) 2000 is about is twofold. In its philosophical framework it is a return to the previous pluralistic approach. The second theme is a new development in New Zealand labour law, and that is the good faith requirements that infuse the bill.

First, the pluralist approach. The ERB explicitly recognises that there is a power imbalance in the workplace. Employers have more power than workers. It secondly recognises that the best way to allow workers to address that power imbalance is not to give them power via statute, but is rather to make it easier for them to organise themselves collectively in the workplace. This is an important difference from the old structures, which made the union movement so dependent on statutory power (monopoly coverage, compulsory membership and so on) that when it was removed, they virtually collapsed. There's no danger of that under this system. Unions are being given a modest boost to their powers - but they will have to go out and fight for gains for their members. Nothing is going to come on a plate for unions from this new legislation.

There is also, in the classic pluralist sense, a development of the institutions designed to mediate conflict. A new "Employment Relations Authority" will replace the legalistic Employment Tribunal. Its decisions will be reached in an informal way, quickly, and with the minimum of fuss. More importantly, it will look at the substance of complaints and problems - not merely the procedural correctness. Looking at the substance of a query instead merely of its form is a major advance which will assist in the speedier resolution of employment grievances.

"Good faith" is a fascinating development. Apparently an import from some North American jurisdictions, it requires that negotiations be conducted in a civilised way. According to some comments, you'd think this was the end of the world, and the sky was going to fall in. Personally, I can't see why making it a requirement that parties deal with each other in good faith and not mislead each other is a bad thing. It re-emphasises the whole purpose of the bill, which is in Hon. Margaret Wilson's words "[the new framework] is based on the understanding that employment is a human relationship involving issues of mutual trust, confidence and fair dealing, and is not simply a contractual, economic exchange."

Radicals or marxists would criticise the ERB from the view that while it acknowledges conflict, it doesn't actually address the fundamental structural power imbalance between labour and capital which comes to the surface in any employment relationship. There's a good reason for that; in the current political climate in New Zealand, an attempt to unleash (for example) trade unionism and push it along a revolutionary path would very quickly lead to massive political reversals for the elected government.

So the ERB is a fairly moderate piece of legislation, aimed at improving employment relations and redressing the balance of power in the workplace to a small extent. The fact that it is portrayed as otherwise in the media indicates its symbolic significance - and that is something nobody should underestimate. For the Left, it's a redress of power which was stolen from workers in 1991. A long overdue correction. For the Right, however, it's a removal of a cherished plank of the "reform" programme of the 80's and early 90's. The dark and evil unions are being given some power, to do damage to the kindly employers' interests, and interfere in the poor workers' lives.

I'll leave it to you to decide. This debate will go on and on, but I'm going to try and cut through the hyperbole the right is addicted to on these issues and expose as much as I can what their interests are - the continued removal of the ability for workers to effectively organise.

ends

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