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University of Otago Law Theses and Dissertations |
Last Updated: 22 September 2023
Framework for Fairness:
A Purposive Approach to Labour Law Evaluation of the Proposed Fair Pay Agreements
Rachel Spencer
A dissertation submitted in partial fulfilment of the requirements of the degree of Bachelor of Laws (Honours) at the University of Otago – Te Whare Wānanga o Otāgo
October 2021
Acknowledgements
To my supervisor, Dr Dawn Duncan, thank you for your helpful direction, for sharing your knowledge and passion for labour law, and for all your encouragement.
To my family and friends, thank you for reading, proof reading, and listening.
List of Abbreviations
CEA: Collective Employment Agreement EC Act: Employment Contracts Act 1991 ER Act: Employment Relations Act 2000
ERES: Employment Relations and Employment Standards FPA: Fair Pay Agreements
FPAWG: A Fair Pay Agreement Working Group
FWTF: Future of Work Tripartite Forum
IEC: Individual Employment Contract
IC&A Act: Industrial Conciliation and Arbitration Act 1894
ILO: International Labour Organisation
MBIE: Ministry of Business, Innovation, and Employment MECA: Multi-Employer Collective Agreements
MSD: Ministry of Social Development MUCA: Multi-Union Collective Agreements NZ: New Zealand / Aotearoa
NZCTU: New Zealand Council of Trade Unions
OECD: Organisation for Economic Co-operation and Development SECA: Single-Employer Collective Agreements
Table of Contents
I. Part 1: Introduction
The ‘Fair Pay Agreement’ (FPA) policy of sector wide collective bargaining represents the biggest change to New Zealand’s (NZ) labour law in decades and the policy has sparked significant debate.1 This dissertation will explore the FPA proposal and evaluate it through prominent labour law scholar Guy Davidov’s (‘Davidov’) ‘purposive approach’. The purposive approach provides a methodology to ascertain purposes or ‘goals’ (used interchangeably) of labour laws that can be then used to evaluate the ‘means’ of said laws.2 Applying this methodology, this dissertation will ascertain the descriptive and normative purposes of the FPA to provide a yardstick for evaluation. An implicit purpose of this dissertation is to demonstrate how labour law theory can assist in facilitating a coherent and purpose- based evaluation of politically controversial labour laws such as the FPA.
The rest of Part 1 will introduce the development, rationale, structure, and debate surrounding the FPA. Part 2 will provide historical and political context by outlining the trajectory of NZ's labour law, through the Industrial Conciliation and Arbitration Act 1894 (IC&A Act), Employment Contracts Act 1991 (EC Act) and the Employment Relations Act 2000 (ER Act). Part 3 will introduce traditional labour law theory and Davidov’s methodology. Part 4 will apply Davidov’s methodology. Drawing from policy documents, labour law, labour law scholarship, and sociological theory, the goals of raising working standards, promoting collective bargaining, dignity, redistribution, democracy and productivity will be ascertained. The means of the FPA will then be evaluated against these goals. Part 5 will provide a summary, outline strengths and weaknesses, and conclude. It will be shown that the means of the FPA have significant connection to the policy’s descriptive and normative goals. Much of the critique presented against the FPA can be defended. However, it will be shown that the determination process and lack support for union membership may inhibit the FPA from achieving its purposes.
1 Nigel Haworth “Commentary: On the Bright Side: Covid-19, a Perverse Once-in- One-Hundred Year Opportunity” (2020) 45 New Zealand Journal of Employment Relations 47 at 48.
2 Guy Davidov A Purposive Approach to Labour Law (Oxford Scholarship Online, 2016).
The FPA policy was introduced by the Labour-led coalition Government in 2018. A Fair Pay Agreement Working Group (FPAWG) comprising employer, worker, and community representatives and academics, was tasked with developing a potential FPA system. The FPAWG report was delivered late 2018 and instantly caused social and political debate. In 2019 further public consultation demonstrated a divide in opinion between employers and workers.3 Among submissions 86% of employees and 91% of unions were generally positive, and 76% of employers and 89% of employer associations were generally negative.4 However, notwithstanding the policy’s controversy, in May 2021 the current Minister for Workplace Relations and Safety, Michael Wood (from now on ‘the Minister’), obtained Cabinet approval to draft legislation to implement FPA based on the FPAWG report. The bill is expected to be released late this year (2021), with enactment into legislation in 2022.
FPA is shorthand for an occupation or industry wide (often called ‘sector wide’) collective employment agreement (CEA) made through collective bargaining. Generally speaking, collective bargaining is a negotiation between an employer or employers and worker representatives (often trade unions) to establish terms and conditions of work. Sector wide collective bargaining is this process applied to employers and workers in a whole sector.5
The Minister said that FPAs are “the cornerstone of ... workplaces that are fair, safe, and productive”.6 The Minister has identified “systemic weaknesses” 7 within the Employment Relations and
3 Avalon Kent “New Zealand’s Fair Pay Agreements: A New Direction in Sectoral and Occupational Bargaining” (2021) 31 Labour & Industry 1 at 4 note: the consultation itself also demonstrates controversy because it is unusual for a policy developed by a representative working group to then be referred for further public consultation.
4 Cabinet Briefing Paper “Initial summary of submissions on the Fair Pay Agreements discussion document” (19 December 2019) 1866 19-20 at 4.
5 Ganesh Nana “M4king Sen5e of 7he Numbers; Sector wage bargaining – a literature review” (Beryl, New Zealand, 2019)
6 Interview with Micheal Wood, Minister for Workplace Relations and Safety (National Business Review, ‘Fair pay legislation likely to be introduced this year’, 04 March 2021)
7 Cabinet Paper “Fair Pay Agreements: Approval to draft” (7 May 2021) at [11] to [13].
Employment Standards (ERES) such as poor working conditions,8 low wages,9 low productivity,10 wages not keeping up with productivity,11 and low collective bargaining.12 The Minister claimed that these weaknesses could be mitigated through FPA by addressing the “lack of a key feature” which was sector wide collective bargaining.13 This claim was drawing from an Organisation for Economic Co-operation and Development (OECD) recommendation that sector wide collective bargaining is associated with “reduced inequality” and “reduced employee vulnerability”.14 The Government’s vision is to stop the “race to the bottom”15 of terms from lack of standardisation and create a “highly skilled and innovative economy that provides well-paid, decent jobs, and delivers broad-based gains from economic growth and productivity”. 16 Some predicted initial utilisers of the FPA are “supermarkets, cleaners, healthcare workers and security guards”.17
The current outline of the FPA system is contained in the Minister’s Approval to Draft which largely reflects the FPAWG recommendations.18 To initiate FPA bargaining, a registered union with at least one member within proposed coverage can apply to the Ministry of Business, Innovation, and Employment (MBIE) if they met the “representation test” (10% or 1,000 workers within coverage supporting initiation) or the “public interest test” (where there are significant labour market issues).19 The initiating union must specify whether the FPA will cover a specific role (occupation) or multiple roles within an industry (industry).20 There is default coverage of all employees (including non-union members) and their employers within the defined coverage. 21 FPAs will not initially apply to contractors, but the Government plans to include contractors eventually.22 Unions are to represent all employees (including non-union employees) and employers are to be represented by an employer
8 At [12.1].
9 At [12.2].
10 At [12.3].
11 At [12.4].
12 At [12.6].
13 At [14] to [19].
14 Cabinet Paper, above n 7, at [15]
15 At [18].
16 Fair Pay Agreements Working Group “Fair Pay Agreements: Supporting workers and firms to drive productivity growth and share the benefits” (Ministry of Business, Innovation and Employment 2018) at 2
17 Justin Giovannetti “The government’s fair pay agreements plan is a big deal” The Spinoff (New Zealand, 8 May 2021) <https://thespinoff.co.nz>
18 Cabinet Paper, above n 7, and Cabinet Minute “Fair Pay Agreements: Policy Approval” (7 May 2021) CAB-21-MIN- 0126.
19 Cabinet Paper, above n 7, at [35].
20 At [39].
21 At [40] and Annex A.
22 At [31.1].
institution in FPA bargaining.23 There are specific notification and communication requirements so that all parties have the chance to be involved in FPA bargaining. There are to be four categories of terms that can be bargained on; “mandatory to agree”,24 “mandatory to discuss”,25 “other” and “exemption”. 26 Mandatory to agree terms include base wages, how wages will be adjusted, superannuation contributions, hours, overtime, penalty rates, and coverage, duration, and governance of the FPA.27 The mandatory to discuss terms include redundancy, leave, skills and training, health and safety and flexible working.28 FPA bargaining must be conducted in “good faith”29 and will be facilitated by a government funded facilitator. Bargaining parties and “peak bodies” will receive funding to facilitate coordination and bargaining.30 If there is a dispute during bargaining the parties can go to mediation at Employment Mediation Services.31 If mediation does not assist then either side may apply to the Employment Relations Authority (“the Authority”) for a non-binding recommendation.32 Once a FPA is initiated the agreement must be concluded.33 Therefore, if parties cannot agree after mediation and receiving a recommendation, the Authority can fix terms through “determination”.34 At no stage is industrial action permitted as part of the FPA bargaining process.35 Once a FPA is agreed upon, it will be “vetted” for compliance to the FPA Act and other law by the Authority.36 Once vetted, a FPA will become “ratified” if it wins a simple majority of votes from both employee and employer sides.37 If the FPA fails ratification the parties will return to bargaining. However, if the FPA fails ratification twice it will proceed to determination. The resultant FPA (ratified or determined) will be enacted as secondary legislation by the Secretary for Business, Innovation and Employment and will create minimum standards for that sector.38 Once implemented, there is access to the regular employment dispute resolution system for FPA disputes.39 Breaches of
23 At [45].
24 At [71].
25 At [71].
26 At [74].
27 Cabinet Paper, above n 7, at [71].
28 At [71].
29 At [62].
30 At [64], [68] and [69].
31 At [77].
32 At [78].
33 At [82].
34 At [83].
35 At [26].
36 At [89].
37 At [91].
38 At [97] to [98].
39 At [100] to [101].
the FPA can be penalised by the Authority40 and the FPA also creates new minimum standards that are enforceable by the Labour Inspectorate.41
FPAs have divided opinion and commentators note that a “heated debate” has broken out.42 NZ Council of Trade Unions (NZCTU) president Richard Wagstaff states that FPAs are “what working people in unions have been campaigning for ... putting people back at the centre of employment”.43 However, criticism of the FPAs has included claims of the FPAs being unfair, illegal, uneconomical, creating unemployment, and being undemocratic. 44 Business groups have said that FPAs “will strangle the economy, give unions too much power and stifle innovation”.45 Some commentators have lauded the policy as positively “transform[ing] the lives of hundreds of thousands of workers now and in the future” 46 and having the potential to “raise wages across the country... and do away with precarious work”. 47 On the other hand ACT leader David Seymour said “[h]e’ll tear up the agreements if he is ever close to prime minister’s office”.48 A flash-point of the critique has been the compulsory nature of the bargaining system; this element of the FPAs engages domestic and international human rights principles regarding the freedom of association and voluntary collective bargaining.49 National’s Scott Simpson said that “[m]aking unionism all but compulsory infringes on a person’s right to freedom of association”.50 Business representatives even within the FPAWG said that they could not support the compulsory nature of the system.51 Concerned with the compulsory nature, MBIE produced a Regulatory Impact Statement indicating a preferred approach of improving current collective bargaining and the Government setting new minimum standards in problematic
40 At [103].
41 At (7 May 2021) at [105].
42 Giovannetti, above n 17.
43 Giovannetti, above n 17.
44 Henry Cooke “Fair Pay Agreements: How does it work and what will it mean for you” (2021) Stuff Limited https://www.stuff.co.nz and Justin Giovannetti, above n 17.
45 Justin Giovannetti, above n 17.
46 Matthew McCarten "Fair pay agreements — a victory for all workers” E-Tangata (New Zealand, 9 May 2021)
<https://e-tangata.co.nz>
47 Justin Giovannetti, above n 17.
48 Ibid.
49 Relevant international human rights obligations are from the ILO’s Freedom of Association and Protection of the Right to Organise Convention 1948 (Convention No. 87); the ILO’s Convention No. 98; article 22 of the International Covenant on Civil and Political Rights 1966 (ICCPR); and article 8 of ICESCR. New Zealand has not ratified ILO Convention No. 87. However, because it is one of the ILO’s fundamental conventions, we are expected to abide by its principles as a member state of the ILO.
50 Cooke, above n 44.
51 Fair Pay Agreements Working Group, above n 16, at 3.
sectors (but MBIE did not provide details of this approach).52 The Minister himself acknowledged many of these risks53 but considered that “these risks are outweighed by the intended benefits of the [FPA], including better standards of living for workers, improved productivity and a fairer distribution of the benefits of productivity, and better engagement between employers and workers”.54
In Part 2, this dissertation will explore the history, political nature, and ideology of NZ labour law to give context to these polarising opinions. Then, in Part 3 and 4, this dissertation will articulate and apply the purposive approach methodology to show how labour law theory can assist in addressing this heated debate.
II. Part 2: Contextualising the Fair Pay Agreements
NZ has experienced “dramatic swings” in labour law policy resulting in two main legislative overhauls.55 The first was the IC&A Act of 1894, and the second was the EC Act of 1991. These legislative developments will be explored to contextualise the current ER Act and contemporary collective bargaining.
The IC&A Act was enacted following a period of industrial conflict, namely the 1890 trans-Tasman maritime strikes.56 Employers were ultimately successful in quelling the action but were left rattled as the conflict had threatened to close down nationwide transportation.57 This simultaneously left unions in a weakened position, and willing to accept government intervention, and left employers fearful of industrial action.58 Labour historian James Holt writes that this created “a climate of opinion” open to accepting compulsory arbitration.59 The IC&A Act’s purpose was to “encourage
52 Ministry of Business, Innovation and Employment “Fair Pay Agreements - Regulatory Impact Statement” (July 2021)
53 Cabinet Paper, above n 7, at [118] to [121]
54 At [123].
55 Margaret Wilson “A struggle between competing ideologies” in Erling Rasmussen (ed) Employment Relationships : Workers, Unions and Employers in New Zealand (ProQuest Ebook Central, 2010) 9 at 9.
56 James Holt Compulsory Arbitration in New Zealand: The First Forty Years (Auckland University Press, New Zealand, 1986) at 20.
57 At 21.
58 Ibid.
59 At 21-25.
formation of Industrial Unions ... and to facilitate settlement of industrial disputes by conciliation and arbitration”.60 This was transformative as labour had long been denied the right to organise at law.61
(a) The Arbitral Process
The arbitral process of the IC&A Act involved a registered union bringing an ‘industrial dispute’ through a ‘log of claim’ to a conciliation council who would bargain for an ‘award’.62 Conciliation councils had equal representatives from worker and employer unions.63 If agreement could not be reached, then it would progress to the Court of Arbitration which would create the award.64 Awards were delegated legislation providing minimum terms.65 The system created a statutory mechanism for compulsory arbitration where unions and employers worked together to create multi-employer collective agreements.66 The Court of Arbitration also made “Standard Wage Pronouncements” and “General Wage Orders” which set national standards and lowered or raised wages.67
The Court of Arbitration’s decisions were generally stable and predictable and this meant conciliation awards were set in “the shadow of the courts”.68 The system provided protection of wages and conditions, but also relatively low wages and standardised labour costs.69 This created “a status quo
... generally endorsed by worker and employer unions”70 and law professor Simon Deakin noted this system “delivered a century or so of relative industrial peace and social stability”.71 It was an area of
60 Industrial Conciliation and Arbitration Act 1894, long title.
61 Gordon Anderson Reconstructing New Zealand’s Labour Law: Consensus or Divergence? (Wellington: Victoria University Press, 2011) at 16 and 25.
62 Anderson, above n 61, at 31 and Industrial Conciliation and Arbitration Act 1894, ss 2, 3 and 74.
63 Margret Wilson “The Politics of Workplace Reform: 40 Years of Change” in Gordon Anderson, Alan Geare, Erling Rasmussen and Margret Wilson (eds) Transforming Workplace Relations in New Zealand 1976-2016 (Victoria University Press, Wellington, 2017) 44 at 48 and Gordon Anderson, above n 61, at 30.
64 Industrial Conciliation and Arbitration Act 1894, s 47 and 52.
65 At, s 21 and Gordon Anderson, above n 61, at 32 and Gordon Anderson, Dawn Duncan and John Hughes Employment law in New Zealand (2nd ed, LexisNexis, Wellington, 2017) at 424.
66 Simon Deakin “Thirty Years On: Labour Market Deregulation and its Aftermath in New Zealand and the United Kingdom” (2019) 50 Victoria University of Wellington Law Review 193 at 195.
67 Anderson, above n 61, at 33 to 34. See: Holidays Act 1944 and the Minimum Wage Act of 1945.
68 Anderson, above n 61, at 22 and 34.
69 At 22.
70 Kevin Hince “From William Pember Reeves to William Francis Birch: from conciliation to contracts” in Raymond Harbridge (ed) Employment Contracts: New Zealand Experiences (Victoria University Press, Wellington, 1993) 7 at 8. 71 Deakin, above n 66, at 195.
tight regulation of the labour market and NZ society was highly egalitarian.72 NZ has been called "one of the developed world’s more equal societies” at this time.73
(b) Unions
Unions had a supported but restrained position under the IC&A Act.74 Unions were “bestowed significant legitimacy” by the system 75 and from 1936 to 1961 compulsory union membership provided steady economic support.76 Industrial action was theoretically prohibited.77 William Pember Reeves, principal author of the IC&A Act, wrote that unions “may not strike... however much it may do legally and peacefully”.78 However leading NZ labour law scholar Gordon Anderson writes that it was eventually realised that a strike-free NZ was unachievable and temperate striking was not penalised.79 Serious industrial disputes, such as the “waterfront dispute”,80 were responded to with coercive state power not labour law.81
(c) The Breakdown of the System
The late 1960s onwards was a “confused and difficult” time for industrial relations and the arbitral system started to falter.82 The Court of Arbitration’s notorious 1968 “nil-wage order” which declined to adjust awards to reflect inflation eroded union and worker faith in the Court and “second tier” direct enterprise level bargaining started to overtake the award system.83 NZ law professor and former politician Margret Wilson notes how “[w]ork stoppages rose from 71 in 1961 to 523 in 1979”84 and this increase in industrial action has been attributed to the shift to “second tier” bargaining.85
72 Ibid.
73 Max Rashbrooke “Inequality in New Zealand” in Max Rashbrooke (ed) Inequality: A New Zealand Crisis (ProQuest Ebook Central, 2013) 20 at 23.
74 Anderson, Duncan and Hughes, above n 65, at 422.
75 Chris Wright and Colm McLaughlin “Trade Union Legitimacy and Legitimation Politics in Australia and New Zealand” (2021) 60(3) Industrial Relations 338 at 356.
76 Industrial Conciliation and Arbitration Amendment Act 1936.
77 JHolt, above n 56, at 15.
78 William Pember Reeves State Experiments in Australia and New Zealand (Macmillian, Melbourne, 1968, first published 1902) vol 2 at 112 and James Holt, above n 56, at 17.
79 Gordon Anderson, above n 61, 38.
80 See generally: NZHistory “The 1951 waterfront dispute” (2017) New Zealand History Online
<https://nzhistory.govt.nz/politics/the-1951-waterfront-dispute>
81 Anderson, above n 61, 39 and Public Safety Conservation Act 1932.
82 Noel Woods “The Industrial Relations Situation in New Zealand” (1970) 12 Journal of Industrial Relations 360 at 360.
83 Anderson, above n 61, 42.
84 Wilson, above n 55, at 12.
85 Anderson, above n 61, 47.
In 1973 the Industrial Relations Act was enacted and in 1984 Compulsory Arbitration was repealed. Oil shortages raised inflation throughout the 1970s and the economy, overly reliant on the now slowing meat exports to Britain, struggled.86 These economic factors,87 combined with the sudden ideological dominance of neo-liberalism, led to the Lange-Labour Government’s “breathtaking in scale” switch from “social democratic ... to a radical neo-liberal economic policy” in 1984.88 Simon Deakin writes “[i]deology and economics converged on the view that an "efficient labour market" would be one stripped of any trade union influence”.89 In 1987 the Labour Relations Act was enacted and collective bargaining was shifted to the enterprise level.90 While the Act purported to facilitate unionism91 and to recognise striking,92 it begun “a serious transition of employment relations practice to reflect the new neoliberal public policy”.93
In 1991 the Bolger–Shipley National Government enacted the “radically deregulatory”94 EC Act. The EC Act was a culmination of the previous neo-liberal reforms and its aim was “decollectivisation and decentralisation”95 to “individualise the employment relationship and de-unionise workplaces”.96
86 Rashbrooke , above n 73, 26 to 27 and Paul Dalziel and Ralph Lattimore The New Zealand Macroeconomy: A Briefing on the Reforms, Oxford (University Press, Auckland, 1999) at 16–19.
87 Nana, above n 5, at 2 drawing from Jelle Visser “What happened to collective bargaining during the great recession?” (2016) 5 IZA Journal of Labor Policy 9. Note: Jelle Visser and Ganesh Nana warn that the economic rationale for the move away from collective bargaining has been overstated; they claim that the decline was predominately driven by political and ideological change
88 John Reardon and Tim Gray “`About Turn': An Analysis of the Causes of the New Zealand Labour Party's Adoption of Neo-liberal Economic Policies, 1984-1990” (2007) 78 The Political Quarterly 447 at 447 reforms included: “the following measures: deregulation of financial markets; removal of exchange rate regulations; ... abolition of price controls and interest rate controls; relaxation of overseas borrowing; abolition of import licensing; reduction of trade barriers; abolition of industrial production controls; removal of agricultural subsidies; a general sales tax (to move the burden from direct to indirect taxation); privatisation of state assets including NZ Steel, Telecom and the national rail network; restrictions on trade unions; public-sector reform (including short-term contracts, performance management and private- sector consultants in the civil service); and the removal of consultative organisations from economic policy-making.”
89 Deakin, above n 66, at 197.
90 Kent, above n 3, 1 at 2-3.
91 Anderson, above n 61, at 16.
92 Anderson, Duncan and Hughes, above n 65, at 426.
93 Kent, above n 3, at 2-3.
94 David Peetz “Awards and collective bargaining in Australia: what do they do, and are they relevant to New Zealand?” (2020) 44 New Zealand Journal of Employment Relations 58 at 66.
95 Hince, above n 70, at 10.
96 Anderson, Duncan and Hughes, above n 65, 427.
(a) Individual Employment Contracts
Individual employment contracts (IEC) became the primary regulating instrument of the working relationship. Apart from minimum standards, IEC were the “free choice” of the two parties.97 As Gordon Anderson and Lucy Kenner write “[t]his, of course, left many workers vulnerable to exploitation.”.98 Substantial changes occurred to the contents of employment contracts including flexible work practices, performance pay, a wider spread of pay scale, and a drop of overtime and penal rates.99 Gordon Anderson and others, write the power in the employment relationship was “unequivocally shifted in favour of employers”.100
(b) Collective Bargaining and Unions
The EC Act “profoundly reduced the influence of trade unions and collective bargaining”101 and “swept away virtually all remnants of the arbitration system”.102 Employer-union agreements were not legally recognised and the EC Act’s purpose of “freedom of association” prohibited requirement of union membership within a employment contract, eroding union funding.103 Gordon Anderson writes that this undermined unions “under the cloak of a spurious legal neutrality”.104 Trade unions were denied independent legal status, could no longer be registered, and lost all the rights they were once afforded.105 The word union was not even included in the EC Act.106 Scholars Chris Wright and Colm McLaughlin write that central to the 1992 reforms was the "explicit delegitimation of unions” to “portray them as having too much power .... and the cause of New Zealand’s poor productivity”.107 Legal scholar and Legal Officer of NZCTU Avalon Kent writes that “[i]n the wake of these changes,
97 Wilson , above n 63, at 46.
98 Gordon Anderson and Lucy Kenner “Enhancing the effectiveness of minimum employment standards in New Zealand” (2019) 30(3) The Economic and Labour Relationship Review 345 at 346
99 Parliamentary Library Background Paper No. 16 “The Employment Contracts Act and its Economic Impact” (Andrew Morrison, Economist, November 1996) at 4.
100 Anderson, Duncan and Hughes, above n 65, at 427.
101 Gordon Anderson, Peter Gahan, Richard Mitchell, and Andrew Stewart “The Evolution of Labour Law in New Zealand: A Comparative Study of New Zealand, Australia, and five other Countries” (2011) 33 Comparative Labor Law & Policy Journal 137 at 138.
102 Gordon Anderson "'The Sky Didn't Fall In': An Emerging Consensus on the Shape of New Zealand Labour Law?" (2010) 23 Australian Journal of Labour Law 94 at 96.
103 Employment Contracts Act 1991, long title, s 5 and 6.
104 Anderson, above n 61, at 77.
105 Hince, above n 70, at 11.
106 Ibid and Employment Contracts Act 1991.
107 Wright and McLaughlin, above n 75, 356.
trade union density collapsed... from about 70% of employees in 1980 to just over 20% by the late 1990s” the “largest decline in union density of any OECD country over this period”.108
In 2000 the ER Act was enacted by the Clark Labour-led Government109 and remained “largely untouched” by the following Key National-led Government.110 The ER Act remains the governing statute of NZ ERES, along with minimum standards legislation 111 and International Labour Organisation (ILO) standards.112 The ER Act aimed to assuage the policies of the EC Act and “better balance”113 the employment relationship by “acknowledging and addressing the inherent inequality of power”.114 However, despite the National Party proclaiming at the enactment of the ER Act that it was to take “industrial relations back to the Jurassic area” it was “a relatively moderate reform”.115 As Gordon Anderson writes, the ER Act “does not threaten, but largely retains and consolidates... the [EC Act’s] underlying framework”.116
108 Avalon Kent, above n 3, at 3. Drawing from Organization for Economic Cooperation and Development (2021). “Employment and Labour Force Statistics.” Available at: https://www.oecd-ilibrary.org/employment/data/oecd- employment-and- labour-market-statistics_lfs-data-en [Accessed 26 February 2021]
109 Wilson, above n 63, at 55.
110 Wright and McLaughlin, above n 65, at 357.
111 See: Holidays Act 2003; Minimum Wage Act 1983; Wages Protection Act 1983; Equal Pay Act 1972; Parental Leave and Employment Protection Act 1987; Home and Community Support (Payment for Travel between Clients) Settlement Act 2016; Volunteers Employment Protection Act 1973 (also, to some extent the Immigration Act 2009 and Crimes Act 1961)
112 International Labour Organisation “Collective Bargaining: A Policy Guide” (2015)
<https://www.ilo.org/travail/whatwedo/instructionmaterials/WCMS_425004/lang--en/index.htm> - as a member state NZ has an obligation “to respect, promote and realize – in good faith” the ILO standards.
113 Wilson, above n 63, at 56.
114 Employment Relations Act 2000, s 3(a)(ii).
115 Anderson, above n 61, at 132.
116 At 134.
(a) Unions
The ER Act permits a qualifying incorporated society117 to become a registered union.118 Registration affords “symbolic legitimacy”119 and the ER Act recognises a unions role in promoting their members' interests and representing members in collective bargaining.120 This promotes observance to ILO Conventions 87 on Freedom of Association and Protection of the Right to Organise and 98 Right to Organise and Collective Bargaining.121 When given authority by an employee, unions may also represent that employee regarding their individual employment rights.122 The ER Act also provides for unions to access workplaces 123 and paid meetings 124 and delegate work, 125 and since 2018 employers must provide new employees with union information.126
However, as Mark Harcourt and others write “workers are defaulted to non-union status... then have to take the positive, proactive step to seek and gain membership”.127 Furthermore, drawing from Eketone v Alliance Textiles,128 Gordon Anderson notes that “employers in [NZ] are not required to be neutral in relation to union membership”. 129 Evidence shows that employer perspective is that “workplaces should remain union free” and this is a major obstacle to union membership.130 Under the Key National-led Government there was further deregulations including “weakening union access
117 See: Incorporated Societies Act 1908, s 4 “Any society consisting of not less than 15 persons associated for any lawful purpose but not for pecuniary gain may, on application being made to the Registrar in accordance with this Act, become incorporated as a society under this Act.”
118 Employment Relations Act 2000, ss 13, 14, 15. The incorporated society must not be affiliated with an employer; have the object is to inter alia “promote its members’ collective employment interests”; and has legal, reasonable, democratic, inclusive, rules.
119 Anderson, Duncan and Hughes, above n 65, at 440.
120 Employment Relations Act 2000, ss 12(a) and (c), 18.
121 International Labour Organisation Convention 87 on Freedom of Association and Protection of the Right to Organise (opened for signature 17 June 1948), International Labour Organisation Convention 98 on Right to Organise and Collective Bargaining (opened for signature 18 Jul 1951, entered into force 9 June 2003).
at 11.
122 Employment Relations Act 2000, s 18(3).
123 Employment Relations Act 2000, ss 20, 20A, 21.
124 At, s 26.
125 At, s 18A.
126 At, s 62A.
127 Mark Harcourt, Gregor Gall, Margret Wilson, Korey Rubenstein and Sudong Shang “Public support for a union default: Predicting factors and implications for public policy” (2020) 1 Economic and Industrial Democracy 1 at 3.
128 Eketone v Alliance Textiles (NZ) Ltd (1993) 2 ERNZ 783 (CA) at 787.
129 Anderson, Duncan and Hughes, above n 65, at 437.
130 Wright and McLaughlin, above n 75, at 358.
rights”131 and union legitimacy was politically attacked by National to maintain popularity with the employer voter base.132
(b) Collective Bargaining
The ER Act objectives includes promoting collective bargaining 133 and observance of ILO Convention 98 on Right to Organise and Collective Bargaining.134 The ER Act provides a framework for collective bargaining underpinned by the obligation of good faith.135 Good faith includes inter alia, being active and constructive, meeting and communicating, not misleading or deceiving, continuing to bargain, providing necessary information, and to conclude a CEA; subject to a genuine reason, on reasonable grounds, not to conclude a CEA.136 A CEA must contain coverage, rates of pay, resolution process, variation and expiry within 3 years.137 Bargaining can be initiated by either a union after a simple majority of covered members138 or an employer.139 There are three common modes of CEA; enterprise (single employer) level agreements (SECAs), multi-party agreements (MECAs), and multi-union agreements (MUCAs).140 Though it is permitted in law, multi-employer bargaining is rare, and very little industry-wide bargaining occurs.141
(i) High Threshold for Dispute Resolution
If there is conflict within the bargaining process mediation is available142 and if there are specific “serious difficulties” the Authority can provide facilitation.143 The Authority can make non-binding recommendations on process and/or provisions144 that must be considered.145 However, there is a “high threshold” 146 for facilitation. For example, in PMP Print a 24 hour stoppage, pickets, 17 days
131 At 357.
132 At 358.
133 Employment Relations Act 2000, s 3(a)(iii).
134 ILO Convention 98 and International Labour Organisation, above n 112, at 11.
135 Employment Relations Act 2000, s 4, 31, 32, 35 and Ministry of Business, Innovation and Employment “Code of Good Faith in Collective Bargaining” (2 May 2019).
136 Employment Relations Act 2000, ss 4, 23, 33, 34 and MBIE, above n 135.
137 Employment Relations Act 2000, ss 52, 54.
138 At, s 45.
139 At, s 40.
140 Anderson, Duncan and Hughes, above n 65, 452.
141 Kent, above n 3, at 7.
142 MBIE, above n 135, at 4.1.
143 Employment Relations Act 2000, ss 50A, 50B.
144 At, ss 50G, 50H.
145 Ibid.
146 See: Service & Food Workers Union Inc v OCS Ltd EmpC WC20/05, 5 September 2005
of strike action, police involvement, and issuing of trespass notices, were not sufficient to satisfy the “serious difficulties” test. 147 If specific difficulties exist and all other alternatives have been exhausted, a party may apply to the Authority for a “determination fixing” of the CEA.148 However, this is for “exceptional cases”149 and is an “extraordinary test”.150 Fixing will only be done if it is the “only option to remedy the breach of good faith”.151
(ii) Passing On
A CEA covers employees who are members of the union who come within the coverage clause and all new employees under the coverage for 30 days.152 However, in practice, terms of the collective employment agreement are regularly “passed on” to non-union members.153 The only restriction is that terms cannot be passed on to specifically undermine the CEA.154 As Erling Rasmussen writes "the problem of ‘passing on’” is that it is “a major disincentive to join the union(s)” as the employee is already getting the benefit at no cost.155 Furthermore, to ensure freedom of association, the ER Act states that any action conferring specific benefit on a union member is prohibited.156 This rule against preference does not restrict a CEA from having different terms between union member and non-union members.157 However, Gordon Anderson writes that “any attempt to prevent these being passed on to non-members would be an unlawful preference” as it would be prevention on the basis of lack of union membership.158
147 Judith Scott “Mechanisms for Resolving Collective Bargaining Disputes in New Zealand” (2014) 39(2) New Zealand Journal of Employment Relations 62 and PMP Print Ltd and Anor v New Zealand Amalgamated Engineering Printing and Manufacturing Union Inc CA162/04, 22 December 2004.
148 Employment Relations Act 2000, ss 50J(1), 50J(3).
149 Assoc of University Staff v Vice-Chancellor of the University of Auckland [2005] NZEmpC 38; (2005) ERNZ 224 (2005) 2 NZELR 227
(EmpC) at [61]
150 New Zealand Public Service Assoc Inc v Secretary for Justice (2010) NZEMPC 11, (2010) 7 NZELR 215
151 First Union v Jacks Hardware and Timber Ltd, t/a Mitre 10 Mega Dunedin and Mitre 10 Mosgiel [2015] NZEmpC 230 and Employment Relations Act 2000, s 50J.
152 Employment Relations Act 2000, ss 56, 62.
153 Anderson, Duncan and Hughes, above n 65, at 434.
154 Employment Relations Act 2000, s 59B.
155 Erling Rasmussen “Introduction” in Erling Rasmussen (ed) Employment Relationships : Workers, Unions and Employers in New Zealand (ProQuest Ebook Central, 2010) 1 at 3.
156 Employment Relations Act 2000, s 9(1).
157 National Union of Public Employees (Inc) v Asure New Zealand Ltd and New Zealand Public Service Assoc [2004] NZEmpC 103; (2004) 2 ERNZ 487 (EmpC) at [50].
158 Anderson, Duncan and Hughes, above n 65, at 434 [my emphasis].
(iii) The Self-Help Regime
Gordon Anderson writes that the ER Act only “partially restored the right to effective collective bargaining” as unions are required to develop the ability to organise and bargain collectively themselves.159 This is often called a “self-help” and “competitive” model, rather than one of state facilitation and support.160 The ability of unions to help themselves is undermined by the features of the ER Act such as the ability to pass on terms and permissiveness of employer hostility. Avalon Kent writes that the ER Act regime is actually “one of the most hostile to collective bargaining of any industrial country”.161 This is borne out in the very low rates of collective bargaining in NZ by OECD standards, particularly in the private sector. 162 There currently 456 collective agreements covering 60% of the public sector, but 1600 collective agreements covering a mere 10% of the private sector workforce.163 Coverage of MECAs is low outside of the public sector.164 Furthermore, Avalon Kent writes that NZ “is one of only a handful of OECD countries in which collective bargaining coverage is lower than union density – reflecting the difficulties of building and maintaining collective agreements at any level”.165
While union legitimacy was attacked during the Key National government, Chris Wright and Colm McLaughlin write that unions increased their “moral legitimacy” at this time by "being a social voice against inequality and injustice”.166 For example, then NZCTU president Helen Kelly was a strong support for the families of the victims of the tragic 2010 Pike River mine explosion.167 There was also significant union driven changes at this time, including the gender pay equity settlement for care and support workers, minimum wage for care workers during sleep-over and on-call periods, paid travel time for home support workers, and amendments to limit zero-hour contracts.168 Throughout this time unions were also developing a stronger relationship with the Labour Party, who then came into power in 2017 with the Labour-Greens-NZ First coalition. Once in power, the Labour-led Government
159 Anderson, above n 61, at 17.
160 Ibid.
161 Kent, above n 3, 3.
162 Ibid.
163 Fair Pay Agreements Working Group, above n 61, at 32
164 At 32
165 Kent, above n 3, 3.
166 Wright and McLaughlin, above n 75, 357.
167 Ibid.
168 At 359.
reserved National’s amendments to the ER Act, announced the Screen Industry Workers Bill 2019, and tripartite (union/employer/Government) forums were introduced.169
As exemplified by the debate regarding the FPA in Part 1, and this historical exploration of NZ labour law, there is consistently divided opinions on what makes appropriate labour law. As Gordon Anderson writes170
Labour law has always been, and remains, an area of considerable political and social tension. The reason is obvious: labour law structures are a major determinant of the distribution of wealth and income in a society, and consequently of the economic welfare of a great majority of the population.
Divergence of opinion often falls down party lines. Margret Wilson emphasises this point when she states that “[t]he main drivers of regulatory change have been ... the ideological position of the government of the day”.171 The extent and consistency of the ideological demarcation of the dominant political parties in NZ, National and Labour, is not always clear cut; especially when considering the cross-party support of neo-liberalism throughout the 1980s. However, generally it can be said that Labour is ideologically centre-left and National centre-right. This ideological difference is shown by Labour’s pluralist approach to labour law, recognising multiple interests in the workplace, and Nationals unitary approach based largely on supporting managerial prerogative.172 For example the National governments have been supportive of “a minimum role for the state and individual wage fixing through the contract of employment” compared to Labour governments supporting “a more active role for the state and collective bargaining”.173
In politics parties express their disapproval of the other’s labour law policy vociferously. For example, in the 1975 election National campaigned with images of unionists depicted as dancing Cossacks, implying Labour was under communist influence.174 This vocal disapproval can also be exemplified in the FPA debate. Such as National’s Scott Simpson claiming FPA were simply
169 At 360 to 361; Screen Industry Workers Bill 2019; Ministry of Business, Innovation and Employment “Future of Work Tripartite Forum Strategic Assessment” (November 2019).
170 Anderson, above n 61, at 256.
171 Wilson, above n 63, 44 at 44.
172 At 46 to 47.
173 At 47.
174 Wilson, above n 55, at 20.
“payback for Labour’s union mates” 175 and should be repealed.176 This contesting nature of the political system can lead to a culture of criticism for criticisms sake. For example, despite the relatively moderate reform of the ER Act, the National strongly attacked the ER Act with a campaign which has been called “ill-informed and at worst active disinformation”.177 For example, within the FPA debate, ACT and National have scolded Labour for not following the expert advice of the MBIE Regulatory Impact Statement..178 However, the advice of MBIE was to legislative higher minimum standards and strengthen collective bargaining which are policies that ACT and National are apposed to.179 This ideological and political nature of labour law creates complication in evaluating labour law and ascertaining meaningful critique compared to criticism for criticisms sake. Part 3 of this dissertation will illuminate how labour law theory can be used to evaluate labour law in a coherent and purpose-based manner.
III. PART 3: Methodology
Outlining a coherent theory of labour law is complicated given labour law’s ideological and political nature. As Hugh Collins and others write labour law is an “area of law that often appears to dispense with coherent legal principles in favour of a patchwork of regulations ... to satisfy short-term political agendas”.180 This has contributed to what many labour law scholars have referred to as the “crisis” of labour law.181 This crisis includes external challenges, where labour law is attacked for impeding the free market, flexibility, efficiency and ultimately creating unemployment and harming workers. This external challenge questions the very existence of labour law and makes the case for deregulation and restriction of labour law to simply the “legal enforcement of contracts”.182 This challenge was at large during the EC Act, remnants exists within ER Act, and is echoed throughout the FPA debate; as
175 Wright and McLaughlin, above n 75, 360 to 361.
176 Zane Small “Labour accused of being 'stuck in 1970s' as Business NZ calls for Fair Pay Agreements to be terminated” News Hub (New Zealand, 7 Many 2021) quoting National MP Scott Simpson
177 Anderson, above n 61, 132.
178 Cooke, above n 44.
179 See: MBIE, above n 52.
180 Hugh Collins, Gillian Lester, and Virginia Mantouvalou Philosophical Foundations of Labour Law (Oxford Scholarship Online, 2019) at 2 to 3.
181 See generally: Guy Davidov and Brian Langille The Idea of Labour Law (Oxford Scholarship Online, 2011).
182 Collins, Lester, and Mantouvalou, above at 180, at 3.
discussed the business community claimed the FPA would “strangle the economy ... and stifle innovation” creating unemployment.183 This crisis also includes internal challenges, where labour law is attacked for not having coherent legal principles.184
However, labour law does have a rich and informative scholarship and seminal traditional theories. The traditional theory and “main object” 185 of labour law, expressed by Otto Kahn-Freund, is “to be a countervailing force to counteract the inequality of bargaining power” within the working relationship.186 Other pinnacle tenets of the traditional theory, articulated by Hugo Sinzheimer,187 are that “labour is not a commodity” and that “dignity” of the worker, which is threatened by dependency within the working relationship, must be protected.188 These traditional theoretical tenets assist in clarifying what ‘labour law’ is and give an indication of its ultimate purpose. These tenets are all closely related to one another and indicate that labour law’s purpose is to be protective of workers. As Gordon Anderson writes “[c]apital does not need labour law, workers do”.189 Therefore, ‘labour law’ is not confined to the narrower concept of ‘employment law’. As Gordon Anderson writes, employment law governs the employment contract and “reflects the neoliberal agenda that employment should be viewed purely as a matter of contract between two individual parties”.190 Whereas labour law is the “law that regulates the labour market interactions of the workforce as a whole” and wider context of labour relations. 191 Labour law theory focuses on this wider and more holistic view of labour law, seeing that it is artificial and damaging to restrict labour law to the contract of employment.
183 Giovannetti, above n 17.
184 Guy Davidov and Brian Langille “Understanding Labour Law: A Timeless Idea, a Timed-Out Idea, or an Idea Whose Time has Now Come?” in Guy Davidov and Brian Langille (eds) The Idea of Labour Law (Oxford Scholarship Online, 2011) 1 at 1.
185 Anderson, above n 61, at 11.
186 Paul Davies and Mark Freedland Kahn-Freund’s Labour and the Law (3rd ed, Stevens, London, 1983) at 18.
187 Summarised in English by Manfred Weiss “Re-Inventing Labour Law?” in Guy Davidov and Brian Langille (eds) The Idea of Labour Law (Oxford Scholarship Online, 2011) 43 at 44.
188 Weiss, above n 187, at 44 drawing from Hugo Sinzheimer “Das Wesen des Arbeitsrechts” (1927) in Hugo Sinzheimer
(ed) Arbeitsrecht und Rechtsso-ziologie, vol 1 (Bund Verlag, 1976) 108 at 110 to 112.
189 Anderson, above n 61, at 11.
190 Gordon Anderson “Labour law under stress: some thoughts on Covid-19 and the future of the labour law” (2020) 45 New Zealand Journal of Employment Relations 33 at 35
191 Ibid.
Referring back to the crisis of labour law, one viewpoint is that the crisis exists because traditional theories and paradigms of labour law are fundamentally lacking and need to be reformulated.192 Davidov calls this a “crisis at the level of goals”.193 However, the other viewpoint is that “labour law does not need to be reinvented” but that the crisis of labour law is because some labour laws fail to achieve their traditional labour law purposes.194 Davidov calls this a “problem in the realm of means” and to avert the crisis and justify labour laws “we have to restore the connection between labour laws and the goals behind them”.195 An example of a potential disconnection between a goals and means can be seen in the FPA debate; the Minister claims the FPA will “reduced employee vulnerability”196 however opponents claim that the most vulnerable will suffer through the creation of unemployment. 197 To consider which view point is correct, Davidov claims that the purposive approach methodology can be applied to show existence of connection between goals and means, or otherwise.
The purposive approach has a two-step methodology. First, the purpose of the labour law “at the deepest possible level” must be ascertained to provide “a clear view of what the law is supposed to achieve” and a “basic yardstick” for evaluation. 198 The second step is evaluation of the means of that law in advancing those goals.199 Aligned with the holistic focus of labour law generally, the goals of labour law are to be ascertained from various sources. In regard to specific labour laws, such as the FPA, the first source would be the legislative documents which describe and explain the law.200 However, Guy Davidov notes that these descriptive goals are not sufficient in ascertaining the goals
192 Brian Langille “Labour Law’s Theory of Justice” in Guy Davidov and Brian Langille (eds) The Idea of Labour Law (Oxford Scholarship Online, 2011) 101 at 110, drawing from the work of Amartya Sen “Human Capital and Human Capability” (1997) 25 World Development 1959, Brian Langille argues that labour law should instead be conceptualised as a subset of our law which structures human capabilities and the idea of human freedom, outside of the normal paradigm of the working relationship.
193 Guy Davidov “Introduction” in A Purposive Approach to Labour Law (Oxford Scholarship Online, 2016) 1 at 1.
194 Weiss, above n 187, at 46 to 56.
195 Davidov, above n 193, at 4
196 Cabinet Paper, above n 7, at [15]
197 Roger Partridge and Bryce Wilkinson “Work in Progress: Why Fair Pay Agreements would be bad for labour” (Report, The New Zealand Initiative, Wellington, 2019) at 28.
198 Guy Davidov “Articulating Labour Law’s Goals: Why and How” in A Purposive Approach to Labour Law (Oxford Scholarship Online, 2016) 13 at 15.
199 Davidov, above n 193, 4
200 Davidov, above n 198, at 29.
of the law at a deeper level.201 The wider body of labour law, the fundamental goals of labour law (as articulated by the traditional labour law theories), and social goals, are the purposes which provide normative justifications of the law. To ascertain these social goals, it is sometimes necessary to look “outside the confines of doctrinal law” to “economics, sociology, psychology, philosophy, political science and more.”202
Goals of labour law exist at different levels of abstraction. At the first, and most general, level of abstraction are “broad values” of labour law drawn from labour law theory and scholarship, such as human dignity, democracy, voice, and redistribution (level 1).203 We see here references to the tenets of traditional theories of labour law, such as dignity 204 which is closely related to anti- commodification.205 At the second level of abstraction, there are the goals of labour law to regulate the broad characteristics of labour markets (level 2).206 Here Davidov specifically refers to features such as the inequality of bargaining power in the labour market, another traditional law tenet.207 At the third level of abstraction there are the goals of labour law to regulate the “unique characteristics of employment relationships that put the employee in a vulnerable position” 208 for example “subordination and dependency” (level 3).209 Once again we can see a connection to the traditional theories of labour law of countering dependency.210 The last level, the fourth level of abstraction, is the most concrete and specific and relates to the goal of the precise law that is being considered (level 4). Where the goal of the law is to regulate and prevent some “concrete results that society finds unacceptable” such as low collective bargaining or low wages.211
201 Ibid.
202 Ibid.
203 Guy Davidov “Re-Matching Labour Laws with Their Purpose” in Guy Davidov and Brian Langille (eds) The Idea of Labour Law (Oxford Scholarship Online, 2011) 179 at 179.
204 Weiss, above n 187, at 44 drawing from Sinzheimer, above n 187.
205 Ibid.
206 Davidov, above n 203, at 180.
207 Weiss, above n 187, 43 to 44.
208 Davidov, above n 203, at 180.
209 Davidov, above n 198, at 31.
210 Weiss, above n 187, at 44 drawing from Sinzheimer, above n 187, at 112.
211 Davidov, above n 203, at 180.
The goals of labour law can span multiple levels of abstraction. There is no “general formula that can point to the best level of abstraction”212 and “levels do not contradict each other”213 but overlap.214 For example, when considering a specific law, which may have a seemingly concrete goal, it is simultaneously important consider the general values of labour law. 215 This is because any consideration of the goals at the concrete level (level 4) will “raise the question of why these results are unacceptable, and perhaps the best way to explain that would be by going back to the most general level of values.”216 Furthermore, Davidov writes that drawing from general goals of labour law ensures “coherence and consistency in the system”.217 Therefore, in ascertaining the goals of the FPA the specific (level 4) goals such as promotion of sector wide collective bargaining, will be explored to ascertain the related goals on a higher level of abstraction such as addressing inequality of bargaining power (level 2). This will provide a deeper level evaluation of the policy and provide a normative and coherent process of evaluation.
This brief enquiry into labour law theory indicates that the neo-liberal deregulatory ideology of the of the EC Act (largely retained by the ER Act) presents an external challenge to labour law in NZ. This challenge can be seen writ small in the FPA debate. Davidov states that to answer this challenge, “avert the crisis” and justify labour laws “we have to restore the connection between labour laws and the goals behind them”.218 Therefore, to evaluate the FPA, and ascertain whether it can be justified against those opposing it, a purposive approach evaluation is needed to assess whether the FPA will achieve its purported purposes and the deeper purposes of labour law. 219 The purposive approach can therefore provide a coherent and purpose-based way to evaluate the FPA and provide clarity despite the divisive political debate surrounding the policy.
212 Davidov, above n 198, at 31.
213 Ibid.
214 Guy Davidov “The Values and Interests Advanced by Labour Law” in A Purposive Approach to Labour Law (Oxford Scholarship Online, 2016) 55 at 55.
215 Davidov, above n 198, at 23.
216 At 32.
217 At at 24.
218 Davidov, above n 193, at 4
219 Cabinet Paper, above n 7, at [123]
IV. PART 4: Evaluation of the Goals and the Means
The first step of applying the purposive approach two-step methodology is ascertaining the FPA’s goals. The first point of enquiry is the legislative documents. As the FPA legislation is not yet drafted, the enquiry can focus on the various “background papers”220 including inter alia the FPAWG Report and Cabinet Papers and Minutes. The Cabinet Paper states the “objective of the FPA system is to improve labour market outcomes by enabling employers and employees to collectively bargain industry or occupation-wide minimum employment terms”.221 Therefore, the most concrete level purposes (level 4) of the FPA are to promote sector wide collective bargaining and improve market outcomes through raised minimum terms. Poor market outcomes identified by the Minister include the prevalence of poor working conditions, 222 low wages, 223 low productivity 224 and wages not keeping up with productivity.225 Therefore, further concrete purposes (level 4) can be identified; including better working conditions, higher wages, workers getting their fair share of productivity, and increased productivity. These goals are also reflected in the Minister’s comment that FPA will produce “better standards of living for workers, improved productivity and a fairer distribution of the benefits of productivity, and better engagement between employers and workers”.226 These goals can also be found in the FPAWG Report which noted the “vision” for NZ to have a “highly skilled and innovative economy that provides well-paid, decent jobs ... economic growth and productivity.”227 Another concrete (level 4) goal was the standardisation of wages to prevent and “race to the bottom” so “good employers are not disadvantaged by paying reasonable, industry-standard wages”228
220 Davidov, above n 198, at 29.
221 Cabinet Paper, above n 7, at [34].
222 At [12.1].
223 At [12.2].
224 At [12.3].
225 At [12.4].
226 At at [123].
227 Fair Pay Agreements Working Group, above n 16, at 2.
228 Ibid.
(a) Dignity and Redistribution
Drawing on Davidov’s work, it is clear that the goal of improving labour market outcomes, specifically establishing new minimum terms, encompasses other goals at a higher level of abstraction. There other goals include countering subordination and dependency (level 3) by protecting “the dignity of employees” (level 1) and to “redistribute resources” (level 1). 229 Indirect references to these goals can also be found within the FPA documents, including references to dignity through the language of “fair wage”, “better standards of living” and “decent jobs” and to redistribution through notions of a “fair share” of productivity gains. 230
(b) Inequality of Bargaining Power and Workplace Democracy
The goal of promoting collective bargaining has been shown by labour law scholarship to encompass the goals of inter alia addressing the inequality of bargaining power (level 2) and promoting workplace democracy (level 1). 231 Here we see direct connection to Otto Kahn-Freund’s main object of labour law, to countervail the inequality of bargaining power.232 Again, indirect references to these goals can be found within the FPA documents, including references to workplace democracy through the goal of “stronger employer-worker dialogue” and “better engagement between employers and workers” and the “value in the process of collective bargaining as a participatory mechanism”.233
(c) Efficiency
The goal of increasing productivity is connected to the goal of labour market efficiency (level 2). 234 However, the extent that productivity and efficiency are goals of labour law is debated in scholarship. While, this goal will be explored by this dissertation, it will be shown that it is not a paramount goal.
229 Davidov, above n 198, at 29.
230 Fair Pay Agreements Working Group, above n 16, at [123].
231 Davidov, above n 198, at 30.
232 Davies and Freedland, above n 186, at 18.
233 Fair Pay Agreements Working Group, above n 16, at 2 and 17 and Cabinet Paper, above n 7, at [123].
234 Davidov, above n 203, at 180.
The FPA is a marked change from the underlying framework of individualised employment contracting retained by the ER Act.235 As the Minister has said there is “no mistaking that this will be a significant shift in the way that we bargain for employment standards across our labour market”.236 However, this does not mean that the FPA is not aligned with identifiable purposes of wider labour law and labour law scholarship in NZ.
(a) Collective Bargaining and Inequality of Bargaining Power
The FPA may further the stated objectives of the ER Act including “acknowledging and addressing the inherent inequality of power in employment relationships” 237 and “promoting collective bargaining”.238 Gordon Anderson claims that the ER Act “purports to acknowledge and address the inherent inequality of power” however it “ fails to achieve that object”.239 As shown in Part 2, NZ has low rates of collective bargaining by OECD standards.240 Therefore, if the FPA succeeds in its goal of addressing the inequality of bargaining power, and promoting collective bargaining, it will not only be aligned with the ER Act but also give better effect to its objectives.
(b) More Effective Minimum Standards
NZ labour law scholarship has identified the need for higher wages and better compliance with minimum standards in NZ ERES. The “working poor” phenomena is a growing concern in NZ where low-wages mean “many workers and families are struggling financially”.241 Richard Wagstaff states that “[w]ages have been driven down simply to improve profit margins”.242 A related issue is the lack of enforcement of minimum standards and worker exploitation, particularly for vulnerable workers such as migrant workers.243 The Covid-19 pandemic has created a situation where the ERES is being
235 Anderson, above n 61, at 134.
236 Interview with Micheal Wood, above n 6. 237 Employment Relations Act 2000, s 3(a)(ii) 238 Section 3(a)(iii).
239 Gordon Anderson “Transforming Workplace Relations: The Way Forward” (Victoria University of Wellington Legal Research Papers, Victoria University, 2018) 1 at 7.
240 Kent, above n 3, at 3.
241 Jens Lind and Erling Rasmussen “In support of a New Zealand ‘living wage’: reflections on Danish ‘working poor’ trends and issues.” (2014) 38(2) New Zealand Journal of Employment Relations 17 at 17
242 Luke Malpass “Government announces 'Fair Pay Agreements' plan in radical overhaul of New Zealand employment laws” Stuff Limited (New Zealand, 07 May 2021) <https://www.stuff.co.nz>
243 See generally: Anderson and Kenner, above n 98.
“stress-tested” and “long-standing deficiencies” in the protection provided by minimum standards and entitlements are being illuminated. 244 Specifically, in the areas of redundancy, holiday and sick leave, and contractual variation. 245 The FPA may assist mitigate these wider labour law issues identified by the scholarship if it achieves its goals of creating better market outcomes and redistribution.
(c) Just Transition and Tripartite Solutions
The FPA goals of redistribution, collective bargaining, and workplace democracy, have also been identified as key features of a “just transition” and “tripartite solutions”. 246 A “just transition” refers to supporting workers through the changes and uncertainty brought about by globalistion, technological advances, demographic and climate change.247 The Government has indicated the need for tripartite solutions to these challenges. As stated by the 2019 Future of Work Tripartite Forum (FWTF) “business, workers, and the government will create better solutions for economic challenges if they work together in partnership”.248 “Tripartite solutions” is connected to Nigel Halworth’s “new accommodation” approach, which tenets include, inter alia, a fairer distribution of resources, tripartism, reassertion of collective bargaining, industrial democracy, and a commitment to fairness;249 all of which are echoed throughout the purposes of FPA. Indeed, Nigel Haworth has noted that “commitment to Fair Pay Agreements, and the anticipation of their enactment, are important” for the potential success of “new accommodation”.250
A brief enquiry into sociological theory in NZ demonstrates a pressing need to address inequality and in particular income inequality in NZ. Drawing from MSD statistics, Max Rashbrooke notes that “[s]ince the 1980s, the number of people who are poor in New Zealand has doubled, with many families living in severe hardship. Yet at the same time, [NZ] is now a country where, across all
244 Anderson, above n 190, at 33.
245 At 37 to 40.
246 Ministry of Business, Innovation and Employment “Future of Work Tripartite Forum Strategic Assessment” (November 2019)
247 At 7 and Fair Pay Agreements Working Group above n 16, at 8
248 MBIE, above n 246, at 2.
249 Halworth, above n 1, at 53.
250 Ibid.
adults, the top 1 per cent owns three times as much wealth as the poorest 50 per cent”.251 While attributing causation is complex, the trajectory of inequality appears to prima facie follow the course of the neo-liberalisation, and labour law reforms of the 1980s.252 Scholars have noted that “shrinkage of collective representation and bargaining is the expression of, and a contribution to, the observed rise in inequalities in the labour market and in society”.253 These scholars have pointed to citizens being “genuinely able to participate” and where the “rewards of work are fairly shared”254 and “well paid jobs” as essential for the reversal of this inequality.255 While this enquiry has been brief, it prima facie supports the FPA purposes of raising standards, redistribution, and workplace democracy.
The second step of applying the purposive approach two-step methodology is evaluating the FPA’s means for achieving its purpose. This section will evaluate the goals ascertained in step one: raising minimum terms, worker dignity, redistribution, promotion of collective bargaining, addressing the inequality of bargaining power, workplace democracy and productivity.
Avalon Kent writes that “FPAs have much potential to improve wages and conditions in sectors and occupations that have experienced low-paid and insecure work for decades”.256 The FPA will exist alongside minimum standards legislation which will remain the “floor” of terms and it is hoped that FPAs will “significantly improve” minimum standards for the sector.257 The means of the FPA collective bargaining, determination, compliance, and application to contractors will be considered for their ability to achieve this goal.
251 Max Rashbrooke “Why Inequality Matters” in Max Rashbrooke (ed) Inequality: A New Zealand Crisis (ProQuest Ebook Central, 2013) 1 at 1. Drawing from Bryan Perry “Household Incomes in New Zealand: Trends in Indicators of Inequality and Hardship 1982 to 2011” (Prepared for the Ministry of Social Development, 2012) at 105 and 87.
252 At at 27 notes that “The strong correlation between the structural reforms and this ‘great divergence’ bears careful examination. For some economists there is a ‘prima facie’ case for connecting the reforms with rising income inequality, while for others the causations are more complex.”
253 Visser, above n 87, at 9 drawing from Florence Jaumotte and Carolina Osorio Buitron “Inequality and Labour Market Institutions" (International Monetary Fund, Staff Discussion Note 15/14, Washington DC 2015)
254 Paul Barber “Reducing Inequality” in Max Rashbrooke (ed) Inequality: A New Zealand Crisis (ProQuest Ebook Central, 2013) 167 at 168.
255 At 177.
256 Kent, above n 3, at 7.
257 Cabinet Paper, above n 7, at [20] and [105].
(a) Collectively Bargained Terms
Drawing from a variety of scholarship, Davidov states that “[i]t is undisputed that through collective bargaining employees can and do achieve better terms and conditions”.258 Both the OECD and ILO have found that collective bargaining is associated with the raising of low-earners’ income and reducing income inequality. 259 This position is also supported by NZ economist, Ganesh Nana.260 However, scholar and lawyer Simon Mitchell warns that this type of collective bargaining regime creates uncertainty as to the decency of the terms and means the terms are heavily reliant on the strength of the bargaining parties. 261 Therefore, the success of raised terms through collective bargaining will be reliant on the ability of the FPA to support robust and effective bargaining. This will be considered more thoroughly when the goal of promoting collective bargaining is assessed.
(b) Authority Determination
Whether the FPA will significantly improve on the minimum standards may depend on the precedent set by the Authority in determination. If after facilitation and mediation the parties cannot agree on terms, or if the FPA has filed ratification twice, the Authority can “fix terms” through “determination”. 262 MBIE warned that FPA reaching this determination stage is likely due to resistance from employers.263 Once the Authority sets precedents on its decisions it is possible that FPA negotiations will be set in “the shadow of the courts” as under the IC&A Act.264 Therefore, the precedent that the Authority sets for determination will be very influential. While the Minister has sought delegated authority to develop policy of this determination process, no information has been released yet.265 The high threshold for access to determination during collective bargaining under the
258 Guy Davidov “The Goals of Specific Labour Laws: Some Examples” in A Purposive Approach to Labour Law (Oxford Scholarship Online, 2016) 72 at 89 to 90. Drawing from: Peter Kuhn “Unions and the Economy: What We Know; What We Should Know” (1998) 31 Canadian Journal of Economics 1033; Erik Bengtsson "Do Unions Redistribute Income from Capital to Labour? Union Density and Wage Shares Since 1960” (2014) 45(5) Industrial Relations Journal 389; Lawrence Mishel “Unions, Inequality, and Faltering Middle-Class Wages" (Economic Policy Institute Issue Brief No. 342, 2012).
259 OECD “Employment Outlook 2018” (2018) https://read.oecd-ilibrary.org/employment/oecd-employment-outlook- 2018_empl_outlook-2018-en#page1 and ILO, above n 112 at 4.
260 Nana, above n 5, 9.
261 Simon Mitchell “Can Collective Bargaining Deliver Decent Work?” (2015) 39(2) New Zealand Journal of Employment Relations 15 at 15.
262 Cabinet Paper, above n 7, at [83].
263 MBIE, above n 52.
264 Anderson, above n 61, at 22 and 34.
265 Cabinet Paper, above n 7, at [88] and Hamish Rutherford “MBIE recommended Government drop Fair Pay Agreement warning of ‘bargaining stalemate’” NZ Herald (New Zealand, 08 July 2021) <https://www.nzherald.co.nz>
ER Act means that there is no guidance from previous Authority decisions.266 For the purpose of significantly improving terms the Authority must be willing to set terms at a decent rate to establish a precedent for future bargaining. The Minister indicated that eventually a new regulatory institution will undertake this role. However, even less details known about that new body, so these concerns remain the same. 267
(c) Mandatory to Discuss Terms
In a deviation from FPAWG recommendations, redundancy, leave, skills and training, flexible working and health and safety terms were relegated to mandatory only “to discuss” in a FPA.268 Considering the resistance from employer groups to the FPA generally, non-mandatory terms may be met with heightened resistance. The Authority may, but does not have to, make determination on mandatory to discuss terms on application from a bargaining side.269 Therefore, inclusion of these terms may depend on the position taken by the Authority and there is the potential that important terms such as health and safety, leave, and redundancy will not be included. The exclusion of redundancy is particularly problematic as NZ law currently provides “very limited protection to redundant workers”270 and the FWTF has noted that some of the most vulnerable workers are those who are unprotected.271 Scholars have noted that the current redundancy "consultation protections” was not particularly effective during the Covid-19 crisis and “do little more than delay redundancy”.272
(d) Application
The FPA will initially only apply to employees but there are plans for contractors to be included in the next phase of policy work.273 Commentators, such as the New Zealand Law Society (NZLS), have warned that including contractors could “significantly change” NZ employment law and risks undermining “law premised on determining the real nature of working relationships”.274 However,
266 Anderson, Duncan and Hughes, above n 65, at 502 and Employment Relations Act 2000 s 50J.
267 Cabinet Paper, above n 7, at [9].
268 At [71].
269 At [86.2].
270 Anderson, above n 190, at 38
271 MBIE, above n 246, at 12.
272 Anderson, 190, at 38
273 Cabinet Paper, above n 7, at [46] and [31.1] and 1 footnote 1
274 New Zealand Law Society “Designing a Fair Pay Agreements System” (Discussion Paper Response, New Zealand Law Society, Wellington) at [23] and [24]; Fair Pay Agreements Working Group, above n 16, at 40.
labour law scholarship has been generally critical of the employee contractor binary 275 as often the “characteristics that require the protection of labour law ... has not changed”. 276 There is the phenomena of dependent or vulnerable contractors and misclassification of employees as contractors to avoid employer obligations.277 As Gordon Anderson writes “[l]egal categories should not be allowed to defeat basic entitlements and protections” 278 Therefore the proposed inclusion of contractors is a significant step in the right direction for protecting vulnerable workers. From a purposive approach, the raising of minimum standards should apply to all workers, regardless of their classification.
(e) Compliance
Davidov writes, regardless of the purpose of the law, when “employers fail to comply with labour laws, and society fails to enforce them, the goals behind these laws are frustrated.”279 As discussed in the purpose section, the Covid-19 pandemic has illuminated that enforcement and compliance with current minimum standards “can often be fraught and difficult” with issues of the capacity of the Labour Inspectorate and the over reliance on individual enforcement.280 The reliance on individual enforcement is further complicated by employees who fear retaliation or do not know their rights.281 The FPA will retain the compliance and enforcement mechanisms of the ERES and the compilation of key minimum terms in a FPA may assist in knowledge of the terms. However, the biggest potential compliance mechanism within the FPA is the involvement of unions.282 As Davidov writes, a unions “very presence helps to ensure compliance with labour standards” either by actively assisting workers or simply their presence as a reminder to employers. 283 An example of the unions compliance enhancing ability is the NZCTU initiative of online and freephone complaint lines for employment issues during the Covid-19 pandemic.284 However, the ability for unions to have this compliance role
275 Guy Davidov “The Idea of Labour Law as Addressing Vulnerabilities or Labour Market ‘Problems” in A Purposive Approach to Labour Law (Oxford Scholarship Online, 2016) 34 at 36 and see generally: Weiss, above n 187; Davidov, above n 203; Anderson above at 239;Tonia Novitz “The Perils of Collective Begging: the case for reforming collective labour law globally and locally too” (2020) 44(2) New Zealand Journal of Employment Relations 3.
276 Davidov, above n 275, at 36
277 Cabinet Paper, above n 7, at [135] and Cabinet Briefing Paper “Advice on contractors in the Fair Pay Agreements system” (4 December 2020) 2021-1541 at 2
278 Anderson, above at 239, at 6.
279 Guy Davidov “Addressing the Compliance/ Enforcement Crisis” in A Purposive Approach to Labour Law (Oxford Scholarship Online, 2016) 224 at 224.
280 Anderson and Kenner, above n 98 at 357 and Anderson, above n 190, at 39 to 40.
281 Davidov, above n 279, at 238.
282 Note: while unions may not seek the enforcement mechanisms of the Labour Inspectorate, they can bring personal claims on behalf of the employee (see Part One) and can provide information of the Labour Inspectorate to the employee. 283 Davidov, above n 297, at 238.
284 Dawn Duncan “COVID-19 and Labour Law: New Zealand” (2020) 13 Italian Labour Law e-Journal 1 at 3
relies on them having the resources and communication channels with workers. Without steps to increase union membership, and worker engagement with unions, this compliance enforcement potential of the unions may not be reached.
(f) Means for Raising Minimum Terms and Conditions Evaluated
A purposive approach analysis shows that the FPA has multiple means to promote the goal of raising minimum terms and conditions. These include creating a new sector wide minimum, collective bargaining, presence of unions to support compliance, and the proposed inclusion of contractors. However, there are some points of uncertainty that the FPA policy must address to achieve the desired purpose to “significantly improve” minimum standards. To realise the benefits of collective bargained terms, there must be a focus on promoting robust and effective collective bargaining. The Authority, or a new regulatory body, must be willing to set terms at a decent rate to establish a precedent for future bargaining. The Authority must also be willing to include “mandatory to discuss terms” as there are important terms such as health and safety and redundancy no longer included in mandatory to include terms. Alternatively, considering the need for better protections in these areas, a purposive approach would compel that these terms are included in “mandatory to agree” as recommended by the FPAWG. Finally, further encouragement of union membership and union support is needed to reach the compliance potential that unions obtain.
Human dignity is widely considered to be “central to labour law”. 285 As articulated by Hugo Sinzheimer, labour law must protect worker’s dignity as the ‘dependency’, ‘submission’ and ‘subordination’ within the labour relationship creates vulnerability that dignity will not be respected.286 These principles have both been encompassed in ILO declarations, constitutions, and agendas.287 A primary goal of the ILO in 2011 was said to promote “decent and productive work, in
285 Pablo Gilabert “Dignity at Work” in Hugh Collins, Gillian Lester, and Virginia Mantouvalou (eds) Philosophical Foundations of Labour Law (Oxford Scholarship Online, 2019) 68 at 68
286 Weiss, above n 187, at 44 drawing from Sinzheimer, above n 187, at 112 and Hugh Collins “Is the Contract of Employment Illiberal?” in Hugh Collins, Gillian Lester, and Virginia Mantouvalou (eds) Philosophical Foundations of Labour Law (Oxford Scholarship Online, 2019) 48 drawing from Davies and Freedland, above n 186, at 18.
287 Declaration concerning the aims and purposes of the International Labour Organisation (Declaration of Philadelphia) (ILO, 10 May 1944); ILO Constitution (International Labour Organization Constitution (Adopted by the Peace Conference in April 1919, the ILO Constitution was Part XIII of the Treaty of Versailles)) Annex 1; 287 International Labour Organisation “Decent Work” (2020) ILO <https://www.ilo.org/global/topics/decent-work/lang--en/index.htm> see Davidov, above n 214, at 62.
conditions of ... human dignity”.288 The FPA aims to protect human dignity by creating better working terms, “fair pay” and better standards of living for workers.289 However, as discussed in Part 1, critics of the FPA have said that the means of the FPA undermine dignity through impeding freedom of association and voluntary bargaining principles.
(a) A Dignified Fair Pay
Davidov writes that minimum standard regulations are “designed to ensure respect for our dignity” as they assert that human labour should not be sold for under a certain minimum amount.290 Taking a dignitarian purposive approach, what is “fair pay” requires a consideration of the importance of “making a living” in all aspects of life. Including, “self-esteem, self-respect.. ability to provide for oneself and one’s family” and for participation in “community and ... broader political life”.291 This consideration is principally separate to considerations of the economic value of the work done. As Max Rashbrooke writes “if a job is worth doing – as many low-paid jobs clearly are – then people should be able to do it and enjoy a decent life”.292
As discussed in step 1 of this methodology, NZ is facing a working poor phenomena.293 The NZCTU Rūnanga have indicated that Māori are overrepresented in jobs where liveable pay rates are lacking.294 Living Wage Aotearoa economists argue that the minimum wage ($20.00 per hour (adult, before tax)) 295 is inadequate relative to the actual costs associated with a decent and dignified standard of living.296 Instead, those economists claim that the living wage ($22.75 per hour (adult, before tax))297 is “necessary to provide workers and their families with the basic necessities of life... to live with dignity and to participate as active citizens in society”.298 As discussed in the above section, the amount of actual increase to wages within FPA system is uncertain. From a dignitarian purposive
288 International Labour Organisation "Decent Work for All." (2010)
<http://www.ilo.org/global/About_the_ILO/Mainpillars/ WhatisDecentWork/lang-en/index.htm>.
289 Cabinet Paper, above n 7, at [123]
290 Davidov, above n 258, at 82.
291 At 83.
292 Rashbrooke, above n 251, at 9.
293 Lind and Rasmussen, above n 241, at 17
294 Cabinet Paper, above n 7, at [151.2]
295 Minimum Wage Order 2021
296 Charles Waldegrave, Peter King and Michaela Urbanová "Report of the Measurement Review for a New Zealand living wage” (Family Centre Social Policy Research Unit, report prepared for Living Wage Movement Aotearoa NZ, March 2018) and Alison Pennington “Workplace Policy Reform in New Zealand: What are the Lessons for Australia?” (The Centre for Future Work at the Australia Institute, Australia, March 2019).
297 Waldegrave, above n 296.
298 Waldegrave, above n 296.
approach, there is a strong argument that the increase should at least be to the amount of the living wage.(b) Compulsion & Freedom of Association
Part of the concept of dignity is personal autonomy and lack of compulsion.299 Labour law must protect workers against compulsion as the ‘submission’ and ‘subordination' within the labour relationship creates a dynamic where the worker’s autonomy could be overborne.
(i) Compulsion
A criticism directed at the FPA is that because the bargaining is compulsory after initiation, it therefore infringes personal autonomy. Furthermore, compulsory bargaining also impacts the ILO principle of collective bargaining being voluntary.
The ILO has confirmed that their conventions taken together establish a principle that “[c]ollective bargaining must be free and voluntary, and respect the principle of the autonomy of the parties”.300 However, the ILO policy guide also acknowledges that “fragmentation or weakness” of bargaining parties may undermine frameworks of voluntary negotiations and in such cases governments may take further measures to support collective bargaining.301 As shown in Part 2 of this dissertation, unions are in a weak position and employers in the private sector engage in very little collective bargaining. The Minister considered that compulsion was needed because of the employer resistance to collective bargaining, otherwise it would “significantly reduce the instances of successful initiations”.302 Furthermore, the ILO also notes that an exception to the general principle of voluntary bargaining has been made to “allow workers’ organizations to initiate compulsory arbitration for the conclusion of a first collective agreement”. 303 This is because the “first collective agreements are often one of the most difficult steps in establishing a bargaining relationship”.304 Therefore, while the compulsory nature of the FPA does run contrary to this principle of the ILO, it appears to be justified for establishing collective bargaining or where there is fragmentation or weakness of the bargaining
299 Mark Freedland and Nicola Kountouris The Legal Construction of Personal Work Relations (Oxford Publishing Online, 2011) at 373.
300 ILO, above n 112, at 13.
301 At 28.
302 Cabinet Paper, above n 7, at [166].
303 ILO, above n 112, at 62 drawing from International Labour Organisation “Giving globalization a human face. General Survey on the fundamental Conventions concerning rights at work in light of the ILO Declaration on Social Justice for a Fair Globalization 2008, Report III (Part 1B)” (International Labour Conference, 101st Session, Geneva, 2012) at [247] and [250].
304 Ibid.
parties as in the case in NZ. However, the FPA would be brought into closer compliance with the ILO standards if the FPA system was to progress to voluntary bargaining after the first FPA.
Regarding voluntariness, the narrative that workers are free to choose their own terms now, but will not be with compulsory collective bargaining, is misleading. In the majority of case, especially for those in low paid work, individual contracting is on a take it or leave it basis. Entering an IEC is often an act of “submission” not a voluntary bargain. As Hugh Collins writes “[s]ubmission occurs when a person enters a contract of employment on terms dictated entirely or almost entirely by the employer and where there may be no reasonable alternatives to earn an income but to take this job”.305 As will be explored in the following sections, through the FPA system, it is likely that many workers will actually have more say in their contract of employment than they do currently. Therefore, the FPA does not appear to offend workers autonomy in the way that some commentators claim.
(ii) Freedom of Association and Blanket Coverage
Worker dignity and autonomy is often cited to justify the freedom of association.306 A criticism of the FPA is since unions will be bargaining for terms to cover non-union membership this infringes freedom of association. Freedom of association is contained in numerous international conventions of which NZ has either ratified,307 or is expected to abide by,308 as well as domestic law. 309 However, despite rhetoric to the contrary, union membership is not made compulsory under the FPA. Instead, the terms will effectively be “passed on” or “extended” to non-union members. Extension of CEA is a common process and noted by the ILO as having significant benefits such as making sure employers who collectively bargain are not disadvantaged and encouraging workers to organise. 310 Considering that the FPA cannot reduce worker’s employment terms, it is unlikely to have any practical unwanted effect for workers. As employment lawyer Susan Hornsby-Geluk, has said FPAs “will enable
305 Hugh Collins, above n 286, at 51.
306 Alan Bogg and Cynthia Estlund, ‘Freedom of Association and the Right to Contest: Getting Back to Basics’ in Tonia Novitz and Alan Bogg (eds), Voices at Work: Continuity and Change in the Common Law World (OUP 2014) 141.
307 International Covenant on Economic, Social and Cultural Rights 1966 (ICESCR) (opened for signature 16 December
1966, entered into force 28 December 1978), art 8; International Covenant on Civil and Political Rights 1966 (ICCPR) (opened for signature 16 December 1966, entered into force 28 December 1978), art 22; International Labour Organisation Convention 98 on Right to Organise and Collective Bargaining (opened for signature 18 Jul 1951, entered into force 9 June 2003).
308 ILO 87; Cabinet Paper, above n 7, at [158] “New Zealand has not ratified ILO Convention No. 87. However, because it is one of the ILO’s fundamental conventions, we are expected to abide by its principles as a member state of the ILO.” The convention is also recognised in Employment Relations Act 2000, s 3(b).
309 New Zealand Bill of Rights Act 1990, s 17.
310 ILO, above n 112, at 69.
employees to receive the best of both worlds.”311 Furthermore, dignitarian labour law scholar Pablo Gilabert has noted some default connection to unions, while it may technically limit freedom of association, the limitation is “all things considered justified because it is necessary for, or strongly contributory to, the protection of workers’ rights (including other liberties, or their freedom overall)”.312
(c) Lack of Important Terms for Dignity
As discussed above, terms on health and safety may not be included in FPA. Terms regarding privacy are not even included in mandatory to discuss terms. This creates a troubling inconsistency with the purpose of promoting worker dignity. For example, the FWTF notes increasing privacy issues with developing technology, noting that “technology can enable a type of ‘digital Taylorism’ in which employees are closely monitored and have little to no discretion on how to perform a task”.313 Regarding health and safety, Jonathan Barrett and Leigh Thomas write that NZ workers experience “high levels of occupational accidents and workplace death, particularly in the mining industry where, it appears, profit commonly takes precedence over safety”.314 The current health and safety ERES generally can be said to require a balance between physical and psychological safety against costs of prevention. Jonathan Barrett and Leigh Thomas state that this creates a "subordination of respect for human dignity and life to financial considerations” and “shows insufficient respect for human dignity”.315 Therefore, this is an area where standards should be raised. The demotion and lack of attention to these important terms by the FPA fails to achieve its purpose of promoting dignity at work.
(c) Means for Protecting Worker Dignity Evaluated
A dignitarian purposive approach analysis of the FPA has shown that the means of the FPA engage and appear to impede ILO principles such as voluntary bargaining and freedom of association. However, this analysis has shown that on a deeper enquiry, the ILO policy guide justifies compulsion in promotion of collective bargaining when there are significant impediments to establishing a
311 Susan Hornsby-Geluk “The Fair Pay Agreements system still faces significant challenges"Stuff Limited (New Zealand, 30 June 2021) <https://www.stuff.co.nz> - note: she was saying this in a disparaging way
312 Gilabert, above n 285, 72 to 73
313 MBIE, above n 246, at 14.
314 Jonathan Barrett and Leigh Thomas “Returning Dignity to Labour: Workplace Safety as a Human Right” (2012) 37(1) New Zealand Journal of Employment Relations 82 at 82
315 Ibid.
voluntary system. It has also shown that unionism will not become compulsory, but instead the terms of the FPA will be extended. Furthermore, even if there is some compelled connection with unions, dignitarian scholars have indicated that this may not be as problematic for advancing for dignity as it sounds, because of the benefits and dignity enhancing attributes unions bring. This analysis has also considered that the current minimum wage in NZ is not sufficient from a dignitarian purposive approach. There is a compelling argument that to achieve its purpose of establishing a “fair” and “decent” wage the FPA means must be able to establish a minimum living wage rate for workers covered. Lastly, analysis has also shown that the means of the FPA which allow a potential lack of privacy and health and safety terms are misaligned with the purpose of promoting worker dignity.
Encompassed in the goal of increased wages and workers receiving a “fair share” of productivity is the goal of progressive redistribution. The goal of progressive redistribution is also encompassed within the goal of collective bargaining316 and is regarded in sociological literature as necessary for addressing income inequality in NZ.317 This is sometimes called “distributive justice” and has been called “a major goal of labour law”.318 Redistribution can encompass redistribution of “resources, power, and risks”319 however this section will look solely at resources. Simply put, progressive redistribution is where resources from those in society who have more than enough is redistributed to those who are in need. The basic assumption of the FPA is that since it aims to raise minimum terms the redistribution will be progressive, as workers who were previously on the statutory minimum are the lowest paid in society. However, an argument purported against the FPA is that it will instead produce regressive redistribution, which where something is redistributed from a party who is even more vulnerable. It is claimed that the FPA will do this by creating unemployment. 320 Therefore, the primary enquiry is where the redistribution has come from; as Davidov writes "who pays for this”.321
316 Davidov, above n 258, at 89 to 90.
317 See: Max Rashbrooke (ed) Inequality: A New Zealand Crisis (ProQuest Ebook Central, 2013)
318 Davidov, above n 214, at 57
319 Ibid.
320 Partridge and Wilkinson, above n 197.
321 Davidov, above n 258, 77 to 78
(a) Cost to Employers
In their Regulatory Impact Statement MBIE noted that “[e]mployers would likely face higher costs as a result of increased worker terms and conditions”.322 There is international empirical evidence that an increase in the minimum wage causes a “modest reduction in profits” for businesses.323 Virginia Nicholls, Otago Southland Employers' Association chief executive, has said that the cost of FPA will fall directly upon employers.324 Generally speaking it is assumed that employers are better off than their workers and therefore shifting resources from employers to workers is positive redistribution.325 This assumption is supported by the FPAWG Report which identified that “workers’ share of the national income has fallen since the 1970s, with a particularly large fall in the 1980s ... This reflects wages growing slower than returns to capital, rather than wages falling”.326 Nigel Haworth writes that in NZ “[t]he last thirty years have seen a marked shift in power and rewards away from ordinary workers to owners and managers.” 327 Therefore, the identification of costs being borne by the employer is not a concern from the redistributive purposive evaluation.
Unsurprisingly, many in the business community do not agree that this redistribution would be fair. Kirk Hope from Business NZ has claimed the wage increase could “put people out of business”328 and employment lawyer Susan Hornsby-Geluk, said that there is “a significant risk for small businesses that terms will be imposed on them that they simply cannot afford”.329 However, as Davidov writes “a business that can only survive by paying meagre wages is a burden on society rather than an asset”330 and workers and society “should not be forced to subsidize such activities”.331 There is indication that society at large has been subsidising the payment of low wages in NZ. For example, Max Rashbrooke wrote that “income of a typical single-person household, in the middle of
322 MBIE, above at 52, at 4.
323 Davidov, above n 258, at 80 drawing from Sara Lemos "A Survey of the Effects of the Minimum Wage On Prices” (2008) 22 Journal of Economic Surveys 187; Mirko Draca, Stephen Machin, and John Van Reenen “Minimum Wages And Firm Profitability” (2011) 3 American Economic Journal: Applied Economics 129
324 Simon Hartley “Clash over fair pay agreements” Otago Daily Times (New Zealand, 1 February 2019)
<https://www.odt.co.nz/>
325 Davidov, above n 214, at 57
326 Fair Pay Agreements Working Group, above n 16, at 12
327 Nigel Haworth “The Rewards of Work” in Max Rashbrooke (ed) Inequality: A New Zealand Crisis (ProQuest Ebook Central, 2013) 198 at 198
328 Interview with Kirk Hope, BusinessNZ CEO (National Business Review, ‘Disagreement on whether fair pay agreements will lift productivity, prices’, 28 April 2021)
329 Hornsby-Geluk, above n 311.
330 Davidov, above n 258, at 84.
331 Ibid.
the income distribution ... has increased by less than 20 per cent since 1984” when considering income from “work (wages and salaries) and through welfare (tax credits and benefits)” (to 2011); whereas the “income from work has not increased for these households at all since 1987” (to 2011).332
(b) Cost to Consumers
Roger Partridge and Bryce Wilkinson write that “consumers face a serious risk of harm from firms increasing prices of goods and services to recoup higher labour costs arising from FPAs”.333 The Minister has also acknowledged that “FPAs could indirectly increase the price of goods and services”334 and international empirical evidence shows a “modest rise in prices” from minimum wage increase.335 However, cost to the consumer is actually “benign ... from a redistributive point of view”336 as consumers will bear “a small fraction of the cost so that the few lowest-paid workers will have a meaningful raise”.337 Regarding raised wages through collective bargaining in particular, there is the argument that unionised workers can be better off than ordinary consumers, so redistribution from the consumer may not be progressive. 338 However, this concern is somewhat mitigated by the FPA system as is focused on non-unionised underpaid private sectors. This focus is supported by the “public interest test” where “market issues” such as low pay, long hours, low bargaining power are needed to be established to initiate a FPA.
(c) Cost to Workers
Cost to other workers can be either progressive or regressive depending on which employees are affected by the transfer of resources. MBIE noted that other workers could bear part of the cost of raised wages from the FPA if employers “reduce hours of work, reduce the size of their workforce or do not hire as many workers in order to remain competitive”.339 Commentators have claimed that the FPA will cause job losses and make gaining employment harder for the most vulnerable
332 Rashbrooke, above n 73, at 30 drawing from Omar A. Aziz, Matthew Gibbons, Chris Ball and Emma Gorman “Fiscal Incidence in New Zealand: The Distributional Effect of Government Expenditure and Taxation on Household Income, 1988 to 2010" (53rd New Zealand Association of Economists Annual Conference, Palmerston North, 2012) 333 Partridge and Wilkinson, above n 197.
334 Cabinet Paper, above n 7, at [121.1].
335 Davidov, above n 258, at 80 drawing from Sara Lemos "A Survey of the Effects of the Minimum Wage On Prices” (2008) 22 Journal of Economic Surveys 187; Mirko Draca, Stephen Machin, and John Van Reenen “Minimum Wages And Firm Profitability” (2011) 3 American Economic Journal: Applied Economics 129
336 Davidov, above n 258, at 80.
337 At 78
338 At 89 to 91.
339 MBIE, above n 52, at 4.
“unemployed, particularly inexperienced (i.e. young) and unskilled workers”. 340 This theory is aligned with the conservative view that “minimum wage ... harms the most vulnerable workers (who will lose their jobs).”341 If so, this would be regressive redistribution. However, this conservative view has been largely refuted, and that the cost of reasonable minimum wage increases are borne instead by employers.342 Simon Deakin writes, that of vast empirical evidence on raising the minimum wage and employment “a single message ... when set at a certain level in relation to average wages, the minimum wage does not cause unemployment”343
There are positive effects from union involvement and collective bargaining on progressive redistribution between workers. The ILO has noted that collective bargaining can “compresses wage structures” 344 and the OECD has noted that collective bargaining is associated with “reduced inequality”.345 A compressed wage structure means that there is reduced wage inequality. It has been argued that wages raised by collective bargaining poses the risk is that there will be increased “wage in-equalities between unionized and non-unionized workers”.346 This is from the cost of unionised workers meaning that employers pay their non-unionised workers even less. However, the sector wide level of the FPA and blanket coverage application will protect from wage in-equalities between union members and non-union members. However, this highlights the need for vulnerable contractors to be included within the FPA.
(d) Means for Creating Progressive Redistribution Evaluated
The redistributive means of the FPA have been evaluated and the criticism that the FPA will cause harm to the most vulnerable workers has been addressed. This evaluation has shown that the literature and empirical evidence rejects the conservative view that moderate minimum wage increases will cause unemployment. It has shown that cost borne by employers is progressive redistribution, and that a moderate rise in cost to consumers likely to be progressive redistribution because of the targeted nature of the FPA to low paid sectors. Collective bargaining has been shown to reduce inequality through wage compression and that the sector wide and blanket coverage of the FPA reduces concerns
340 Partridge and Wilkinson, above n 197.
341 Davidov, above n 198, at 30.
342 Ibid.
343 Deakin, above n 66, at 206 "See the special issue of the British Journal of Industrial Relations (volume 47, issue 2), devoted to this question.”
344 ILO, above n 112, at 5.
345 Cabinet Paper, above n 7, at [15]
346 See: Milton Friedman Capitalism and Freedom (University of Chicago Press 1962)
about wage-inequalities between union and non-union members. In conclusion, the FPA will have a positive effect on progressive redistribution and will assist in the goals of workers receiving a “fair share” of firm gains and assist in addressing the wider inequality issue highlighted in social literature.
Avalon Kent writes that the “successful introduction of FPAs could reinvigorate a spirit of collectivism in employment relationships” in NZ. 347 However, while the FPA system clearly facilitates sector wide collective bargaining, the effectiveness of this facilitation in reinvigorating collective bargaining is not so straightforward. Specific features of the FPA including initiation, good faith, bargaining parties’ capabilities, and the representation gap, will be considered in light of the purpose of promoting collective bargaining.
(a) Initiation
A registered union with at least one member within proposed coverage can initiate bargaining if they meet either the “representation test” (10% or 1,000 of workers supporting initiation) or the “public interest test” (where there are significant labour market issues).348 These thresholds are significantly lower hurdles than those which currently exist to initiate collective bargaining in NZ. Under the current law a union needs a simple majority from members within proposed coverage to initiate bargaining.349 However the real barrier is lack of union membership all together. The “representation test” will enable bargaining to be initiated in sectors with low union membership and the “public interest test” will enable it in particularly vulnerable sectors with no union membership. This is vitally important for the purpose of promoting collective bargaining due to the very low rates of union membership in NZ, especially in the private sector. Notwithstanding its controversy, the compulsory nature of the bargaining after successful initiation is another important feature for promoting collective bargaining. As Minister has said, “if employer consent in some form was required ... this would significantly reduce the instances of successful initiations.”.350
347 Kent, above n 3, at 7.
348 Cabinet Paper, above n 7, at [35].
349 Employment Relations Act 2000, s 45.
350 Cabinet Paper, above n 7, at [166].
(b) Good Faith
The good faith requirements within the ER Act will govern the bargaining of the FPA. As outlined in Part 2, good faith includes inter alia, being active and constructive, meeting and communicating, not misleading or deceiving, respecting the role of each other’s representative, and providing necessary information.351 The ILO states that embedding good faith into the bargaining requires respect for both sides.352 The necessary element of mutual respect for bargaining representatives may be a challenge within the FPA system. Both employers and employer peak bodies have expressed resentment regarding the compulsory nature of the FPA.353 Unions have also been questioned regarding their ability to represent non-members. 354 Furthermore, Chris Wright and Colm McLaughlin write that the “challenge to union legitimacy has been a defining feature of recent industrial relations reform in liberal market economies”.355 The ILO notes that “[p]ublic authorities have an important role to play in encouraging parties to engage in good faith in constructive and informed negotiations.” 356 Therefore, considering the tension between the bargaining sides, the Government may need to take further steps to legitimise the unions to facilitation good faith bargaining.
(c) Bargaining Capabilities
As discussed in the above section on increased minimum terms, the success of many features within the FPA will be reliant on the capabilities of the bargaining parties to engage in effective bargaining. Avalon Kent notes that effective bargaining will depend on “union bargaining strength: to organise the requisite number of workers to initiate an FPA, compile and advocate for key demands, and bring pressure on employers”. 357 The ILO notes that effective bargaining requires skilled and knowledgeable negotiators who have a good attitude and commitment to the process.358 However, as Nigel Haworth writes the “tripartite institutions and practices in New Zealand have been sorely weakened since the 1980s”359 and the “three parties are each, in their different ways, inexperienced
351 Employment Relations Act 2000, ss 4, 23, 33, 34 and Ministry of Business, Innovation and Employment “Code of Good Faith in Collective Bargaining” (2 May 2019).
352 ILO, above n 112, at 43.
353 Rutherford, above n 265.
354 Cabinet Briefing Paper “Draft Cabinet paper 'Fair Pay Agreements: Approval to draft’” (26 March 2021) 2021-2519 at 2 – concern expressed by MSD
355 Wright and McLaughlin, above n 75, at 338.
356 ILO, above n 112, at 42.
357 Kent, above n 3, at 7.
358 ILO, above n 112, at 76 and Fair Pay Agreements Working Group, above n 16, at 33.
359 Haworth, above n 1, at 54.
and tentative about renewed tripartite arrangements”.360 For example, employers are to be represented in FPA bargaining by an employer representative institution which has not yet established. However, the FPA system makes significant steps to attempt to address the current gap in capabilities. The government is providing $250,000.00 per year for three years to peak bodies to build capabilities. As well as $50,000.00 to $75,000.00 to unions and employer representatives during FPA bargaining. The bargaining will also be a facilitated process with an expert ‘bargaining support person’ to “support constructive and efficient bargaining.”.361 This support is a welcome commitment by the government for the purpose of promoting collective bargaining. However, unions are not well supported for building their own capabilities within the system. While commentators have noted that the FPA will give unions increased “institutional importance”362 there is no active support of unions growing their membership base. This will provide difficulties for unions to know and communicate with those who they are representing, and unions will also not have the financial support of membership fees. The active support for unions to build their capabilities, and for employer institutions to be established who are willing and committed to the FPA process, is essential for the promotion of effective collective bargaining.
(d) The Representation Gap
There is currently a representation gap between workers who wish to be to a part of a union and those who are.363 As discussed in the above paragraph, this lack of union membership provides difficulties for unions in effective bargaining. As discussed, this also creates difficulties for unions to reach their compliance potential. Reasons why this gap exists has already been discussed in Part 2 of this dissertation. In summary, the reasons include, the dominant neoliberal individualist framework, employer hostility, passing on of union terms, the non-union default, and hostility from centre-right and conservative politicians.364 These factors, coupled with evidence that workers wish to join union, has led to prominent NZ labour scholars advocating for a union default. 365 A union default would automatically enrol workers in a union but allow them to opt out.366 There is resistance to the concept of default union membership. BusinessNZ Kirk Hope stated the entire concept was flawed and that it
360 Ibid.
361 Cabinet Paper, above n 7, at [68].
362 Malpass, above n 242.
363 Novitz, above n 275, at 13 and Harcourt, Gall, Wilson, Rubenstein and Shang, above n 127, at 2.
364 See generally: Harcourt, Gall, Wilson, Rubenstein and Shang, above n 127, at 2.
365 At 3.
366 Ibid.
interfered with individual choice. 367 However, the other view is that a union default more meaningfully recognises the freedom of choice. This is because, as NZCTU’s Richard Wagstaff noted, there are significant barriers to joining a union, that would not be influencing factor on the decision opt-out.368
(e) Means for Promoting Collective Bargaining Evaluated
The FPA facilitation of sector wide collective bargaining has the potential to “reinvigorate a spirit of collectivism” in NZ.369 Specific means within the FPA which aid in it achieving its purpose of promoting collective bargaining include the low threshold for initiation and the funding and facilitation for bargaining. However, because of the historic and current undermining of unions, lack of bargaining experience on either side, and explicit employer and political hostility to unions the FPA system may face significant challenges regarding good faith and effective bargaining. A reoccurring issue within the FPA is the lack of promotion of union membership in the face of the current hostility that obstructs membership. It has been shown that a union default could be an effective solution to this issue and could more effectively respect individual choice. For the purpose of promoting collective bargaining, the means of the FPA needs to include more active, and legitimising, support for bargaining parties to foster good attitude and commitment to the process and union membership needs to be more actively promoted.
The FPA promotion of collective bargaining is directly connected to countervailing the inequality of bargaining power within the individual labour relationship. The ER Act objectives include “addressing the inherent inequality of power” in the labour relationship and “promoting collective bargaining”.370Gordon Anderson writes that this simultaneous emphasis in the ER Act indicates the ER Act’s acceptance of collective bargaining addressing this inequality. 371 Bargaining collectively, in any manner, largely redresses the inequality of bargaining power between employers and workers. This is because, as Pablo Gilabert writes, “[u]nless they have rare and highly demanded skills, isolated
367 Interview with Richard Wagstaff, Council of Trade Unions president and Kirk Hope, BusinessNZ CEO (National Business Review, ‘Compulsory unionism - yea or nay?’, 05 July 2019)
368 Ibid.
369 Kent, above n 7, at 7.
370 Employment Relations Act 2000, ss s 3(a)(ii), 3(a)(iii).
371 Anderson, Duncan and Hughes, above n 65, at 450.
individual workers are very vulnerable in the labour market” but collectively associating “increase workers’ clout”.372 The FPA through creating a system where workers are collectively represented therefore provides means to addresses this inequality of bargaining power. This will make a significant difference for many workers, as the Minister states “[t]he evidence is very clear that some of those professions [of focus for the FPA] have very weak bargaining power, that some sector level barraging power is an important way of dealings with some of these issues.”373
(a) Industrial action
A feature of the FPA which undermines its ability to countervail of the inequality of bargaining power is the prohibition of industrial action.374 Scholar Tonya Novitz writes that “[t]he right to strike is the most powerful and effective way of redressing the almost invariable imbalance of bargaining power between employer and employee”.375 The ILO notes that “generally .. strike action is a measure of last resort” because of the social disruption.376 However, despite the disruption they cause, many “[l]egal frameworks in many countries provide a right to strike” 377 because of its fundamental importance to worker bargaining power. While the FPA compels employers to engage in bargaining through its compulsory nature, the prohibition on industrial action will degrade the power that unions have while bargaining. The prohibition also infringes art 8 of the International Covenant on Economic, Social and Cultural Rights 1966 and Tonia Novitz states that this right is also “an intrinsic corollary to the right to organise protected by Convention No 87”.378
Despite the prohibition on industrial action some commentators have claimed that striking will actually increase under FPA.379 National’s Scott Simpson has claimed FPA will take NZ back to “an era of industrial action in the 1970s, when strikes were at an all-time high.”. 380 Part 2 of this dissertation has shown that prohibiting striking does not necessarily prevent them from occurring. However, this historical analysis also showed that the late 1960s and 1970s was a period that saw the breakdown of the arbitral and award system. The sharp increase in industrial action was attributed by
372 Gilabert, above n 285, at 72
373 Interview with Michael Wood, above n 6.
374 Cabinet Paper, above n 7, at [26].
375 Novitz, above n 275, at 16.
376 ILO, above n 112, 62.
377 Ibid.
378 Novitz, above n 275, at 17 quoting International labour Organisation Governing Body Committee on Freedom of Association “Compilation of Decisions on Freedom of Association” (CFA Compilation, ILO, 2018) at [754].
379 Giovannetti, above n 17, and Hartley, above n 324.
380 Small, above n 176.
some scholars as being because of the shift to “second tier” direct bargaining.381 Periods of controlled and centralised bargaining has often been related to periods of low industrial action. Remarking on this fact, First Union hopes that the FPA could “restore some industrial harmony”.382
(b) Means for Redressing Inequality of Bargaining Power Evaluated
Through creating a system of collective representation for workers to bargain for their employment terms the FPA rebalances the otherwise unequal bargaining power between them and their employer. However, the prohibition of industrial action somewhat degrades this purpose as striking collectively is considered by many as the most powerful and effective way of redressing the inequality of bargaining power between employers and workers.
The working relationship is categorised by “democratic deficits” and a goal of labour law is to counter these deficits and promote workplace democracy. 383 Democratic deficits occur because of the “organisational vulnerabilities” within the working relationship where employers “retain a position of power over their employees” which is justified by the concepts of efficiency and managerial prerogative.384 This organisational vulnerability is coupled with the fact that “[w]orkplace decisions have a direct and tremendous impact on employees, affecting their daily lives as well as their long- term aspirations”.385 Therefore, these two factors mean that the working relationship is contrary to the “one of the basic principles of democracy” that every person affected by the decisions of a governing actor should be able to participate in that governance.386 As Pablo Gilabert writes "it is intrinsically important that workers be able to shape the social process structuring their working conditions as active agents who are protagonists in their own life stories rather than mere recipients of more powerful agents”.387 Concepts such as “worker voice” and "employer-worker dialogue” are key features of countering these deficits and promoting workplace democracy. The FPAWG ascertained
381 Anderson, above n 61, at 47.
382 Giovannetti, above n 17.
383 Davidov, above n 214, at 56 and Davidov, above n 275, at 35.
384 Davidov, above n 275, 35 to 38.
385 Ibid.
386 Ibid.
387 Gilabert, above n 285, at 72.
that NZ would benefit from stronger employer-worker dialogue and saw that the FPA could be a participatory mechanism for worker voice. 388
(b) Participation
Once of the reasons that collective bargaining is understood to have a democratising influence on the workplace is that it facilitates worker “voice”.389 Specifically, it facilitates workers voicing “views, concerns, and demands” allowing them to participate in the governance of the workplace and it amplifies workers voice through rebalancing the otherwise unequal bargaining power. 390 The FPAWG said that FPA can “encourage participation and engagement by employers and employees in actively setting the terms of their relationship”.391 Worker participation is facilitated at multiple stages of FPA bargaining process. Employers must inform their workers regarding initiation, ratification, and renewal and also make “mass communication” of terms, coverage, ratification and finalisation.392 At all of these stages the employer will provide the communication details of the bargaining unions so that the workers can become involved.393 Employers must pass communication details of worker covered to the bargaining unions so that the unions can communicate with that worker (however the worker can opt out).394 It will be a breach of good faith if an employer impeded this communication in anyway.395 Unions will have access to workplaces and workers will have additional paid meetings, including those union meeting permitted in the ER Act.396 Annie Newman, assistant national secretary of the union E tū, notes that all worker will have the opportunity to be involved in bargaining for an agreement.397 However, some commentators, including employment lawyer Susan Hornsby-Geluk, has said it is a cumbersome “phone tree” system and that employers and workers may be failed to be notified and therefore be unable to participate.398 The coordination to ensure effective communication will be a challenge for peak bodies, however if implemented effectively it will have positive implications for workplace democracy.
388 Fair Pay Agreements Working Group, above n 16, at 17.
389 Davidov, above n 285, at 86.
390 At 87.
391 Fair Pay Agreements Working Group, above n 16, at 17
392 Cabinet Paper, above n 7, at Annex A.
393 At Annex A at [39].
394 At Annex A at [30].
395 At Annex A at [31].
396 At [56].
397 Hornsby-Geluk, above n 311.
398 Ibid.
(d) Representation
The “representation test” of the FPA has been criticised as being undemocratic because it does not require a majority of workers to support initiation. 399 For example, National’s Scott Simpson said that “[t]he idea that one in 10 employees, or 1000 across an industry, can trigger mandatory nationwide employment negotiations is democratically offensive”. 400 The Minister has sought and received delegated authority to make “decisions on any requirements for employer bargaining representatives” and stated that “[s]ome of these may also need to be mirrored for union bargaining parties”.401 However, the union will be under the obligation to represent the interests of non-members in good faith. This representation is somewhat similar to the bargaining between the Crown and unions for the successful 2016 Care and Support Workers Settlement. 402 Furthermore, once initiated an unlimited number of other unions with members covered by the FPA can join the bargaining process as well as other representatives that each bargaining side consider appropriate. 403 It would be preferable if a strong negotiating mandate could be held by the initiating and bargaining union. This is another aspect of the FPA which would benefit from increased union membership. However, as Doug Martin, Crown Negotiator for Employment Relations, states “[i]n the current relatively deregulated labour market, the question of how each side will obtain its negotiating mandate ... presents as a tricky ... issue”.404 Low union rates means that obtaining a higher mandate could be difficult and impede the entire policy.
(c) Means for Promoting Workplace Democracy Evaluated
The working relationship is categorised by “democratic deficits” and a goal of the FPA is to counter these deficits and promote workplace democracy through facilitating stronger employer-worker dialogue and creating a participatory mechanism for worker voice. The means of collective bargaining through the FPA will have a democratising influence on the workplace as it promotes workers voice and the means of specific notification and communication and information sharing further facilitates this. The claim of the FPA being anti-democratic because of the low initiation threshold is overly simplistic and does not consider the wider workplace democracy enhancing
399 Giovannetti, above n 17, quoting ACT leader David Seymour
400 Hartley, above n 324.
401 Cabinet Paper, above n 7, at [52].
402 Doug Martin “Issues and Challenges for a New Wave of Collective Bargaining” (2018) < https://medium.com>
403 Cabinet Paper, above n 7, at Annex A at [17] to [19].
404 Martin, above n 402.
features of the FPA. However, coordination of notifications and communication is essential for participation from all parties. This participation needs to be of paramount importance if worker voice is to be promoted.
Low productivity was a “systematic weakness” identified by the Minister to be addressed by the FPA.405 Increasing productivity is connected to the goal of labour market efficiency.406 However, whether efficiency and productivity should be goals of labour law is debated within labour law scholarship. There are scholars who believe labour law plays an important role in correcting market failures, often called the "law of the labour market" (LLM) approach,407 and those who claim this "market constituting” view of labour law undermines its “democratic and emancipatory potential”.408 However, generally speaking, it can be said that other goals of labour law (such as democracy, dignity, redistribution, and others) take precedence over efficiency concerns, but that efficiency can be considered an “ancillary goal”.409 Therefore, a finding of efficiency would add further strength to the policy. This is also a useful enquiry in the context of the FPA as a significant amount of the criticism of the policy is that it will inhibit productivity and efficiency.
(a) Productivity
Elements of the FPA have been identified as potentially productivity decreasing. For example, the “delinking of wages” from productivity which occurs when wages are more standardised and lifted across a sector. Delinking has been noted by the OCED and business advocates as potentially de- motivating for worker productivity.410 Furthermore, it is claimed by some that “restrictive work rules may limit management’s ability to utilize the workforce in the most efficient way”.411 However, these productivity theories are not accepted by all of the scholarship and calls for further de-regulation have been warned against by scholars.412 Nigel Haworth writes that “[c]ontrary to the arguments presented
405 Cabinet Paper, above n 7, at [12.3].
406 Davidov, above n 203, at 180.
407 Ruth Dukes The Labour Constitution: The Enduring Idea of Labour Law (Oxford University Press, Oxford, 2014). The term "LLM scholarship" was first used by Ruth Dukes, a critic of the approach.
408 Deakin, above n 66, at 207
409 Davidov, above n 198, at 29.
410 Partridge and Wilkinson, above n 197.
411 Davidov, above n 258, at 89 to 94.
412 Haworth, above n 1.
in the 1980s and 1990s” deregulation has “not driven strong growth and improved productivity”.413 Nigel Haworth instead claims that poor productivity in NZ is because NZ has adopted an economic model that is internationally known as the “‘low road’ to growth”.414 The ‘low road’ to growth includes cutting costs of labour, low government intervention, weak employee representatives, and a ‘low-wage’ model, with the idea that this will create higher profits and eventually a stronger economy.415
Nigel Haworth advocates for the alternative ‘high road’ to growth model for a “better paid workforce and a stronger economy”.416 This ‘high road’ model contains many features of the FPA. For example, key reforms needed to achieve ‘high road’ model include inter alia strengthening of collective bargaining, decent minimum standards, wage compression, democratic workplace organisation and trade unions, and a general shift to “wage-led growth approaches”.417 Benefits identified with the ‘high road’ model include “motivated staff, greater job security, higher wages... job satisfaction... personal and career development ... increased confidence, trust and openness in work relationships;
.. ability to work through change and conflict constructively; ... improvements in work processes and service delivery; easier staff recruitment and ... retention” with “better business performance and long-term viability.” 418 The philosophy is that better-paid and more engaged employees “work smarter, are more productive, generate more profits”.419
While the FPAWG notes that the “[r]esearch globally on collective bargaining and productivity growth ... is not clear cut”.420 Overall, Davidov writes that “[t]here is thus ample theory and evidence to suggest that the process of collective bargaining has some efficiency-enhancing attributes. At the very least, the discussion so far seems enough to refute the once-common claim that unions (and collective bargaining) significantly impair efficiency.”421
413 Haworth, above n 327, at 199.
414 Ibid.
415 Ibid.
416 At 200.
417 Ibid.
418 At 204.
419 At 201.
420 Fair Pay Agreements Working Group, above n 16, at 17.
421 Davidov, above n 258, at 89 to 97
(d) Means for Promoting Productivity Evaluated
This analysis has shown shown that collective bargaining is unlikely to hinder productivity as has been claimed by opponents of the FPA. Indeed, by adopting a ‘high road’ to growth approach, the means of the FPA may assist in creating a productive and decent future of work. However, it has been noted that productivity enhancements are an “ancillary goal” in labour law. Considering the FPAs have shown potential to promote worker dignity, workplace democracy, and progressive redistribution, negative findings on its effect on efficiency and productivity would not in itself be indicative of the unsuitability of the policy.
V. Part 5: Summary and Conclusions
The FPA policy of sector wide collective bargaining represents the biggest change to NZ labour law in decades. It has laudable aims to create “better standards of living for workers, improved productivity and a fairer distribution of the benefits of productivity, and better engagement between employers and workers”.422 Part 1 of this dissertation introduced the FPAs; traversing the policy development, the Government’s policy rationale, and outlining the key features of FPAs. Part 1 of this dissertation also introduced the debate surrounding the FPA; demonstrating that there is heated debate and divergence in opinion regarding the policy.
In Part 2 of this dissertation the FPAs were contextualised through an exploration of the fluctuating, and politically and ideologically charged, history of NZ's labour law. This gave context to the transformative nature of the FPA, compared to the individualised ERES in NZ since the enactment of the EC Act. Part 2 also aided in contextualising the FPA debate.
This dissertation then drew from labour law theory in Part 3 to facilitate a coherent and purpose-based evaluation of the FPAs and the debate surrounding them. The main tenets of seminal traditional law labour theories were outlined and the challenge to labour law, perpetuated by the neo-liberal deregulatory ideology, was introduced. It was shown that this challenge was writ small within the
422 Cabinet Paper, above n 7, at [123]
FPA debate. Though the work of Davidov, the methodological tools were found to counter the challenge to labour law, and the FPA, and justify the law through the purposive approach.
In Part 4 this methodology was applied. Concrete (level 4) goals of the FPA were found in the Cabinet Papers and policy documents, including: promoting collective bargaining, raising minimum terms, workers getting their ‘fair share’ of productivity, and increased productivity. These goals were then shown at a higher level of abstraction: dignity (level 1), countering subordination (level 3), redistribution (level 1), inequality of bargaining power (level 2), workplace democracy (level 1) and efficiency (level 2). These goals were situated within wider labour law scholarship and sociological literature which showed a coherent, principled and practical reason for the promotion of those goals. Namely, to give better adherence to objectives within the ER Act, to address ERES issues, addressing social inequality, and supporting a just transition and tripartite solutions. The means of the FPA were then systematically tested against these goals.
Evaluating the means of the FPAs in connection to its purposes demonstrated numerous strengths of the policy. Features such as, collective bargaining, compliance through unions, and the proposed inclusion of contractors will assist in meaningfully raising minimum standards. Regarding dignity, dignitarian scholarship indicated that the presence of unions and collective bargaining supported worker dignity. The evaluation also demonstrated that the FPA means of raising minimum standards and collective bargaining is likely to create progressive redistribution. This aspect of the FPA could lead to a more equal society, with compressed wage scales and a better distribution of profits. The means of a low initiation and funding and facilitation of bargaining were supportive of the FPA goal to promote collective bargaining. Collective bargaining in turn aided in addressing the inequality of bargaining power. Workplace democracy is supported by the FPA through collective bargaining and the notification, communication and information sharing requirements. Lastly, this evaluation demonstrated that collective bargaining is unlikely to hinder productivity as was claimed by opponents.
Evaluating the means of the FPA against its purposes has also illuminated reoccurring uncertainties and potential deficiencies. First is the uncertainty surrounding the Authority’s determination process
to achieve the goals of the FPA. To achieve the goal of significantly improved terms, a fair and decent wage, and the inclusion of necessary non-mandatory terms, the Authority will need to show a willingness to determine FPAs with decent and inclusive terms. Alternatively, the non-mandatory terms such as redundancy, privacy, and health and safety, should be reclassified as mandatory. This is because the exclusion of such terms creates a mismatch with the goals of improved working conditions and worker dignity. Second, the lack of support for unions in the face of the historical and current legislative undermining, hostility, and low membership rates may frustrate the goals of the FPA. This is because capable, knowledgeable, and respected unions are needed for effective bargaining in good faith, effective compliance, and workplace democratic engagement through union membership. It has been suggested that further legitimising support for unions is needed. A union default has been suggested for both an effective solution to these issues and to meaningfully respect a worker’s choice to join a union.
Through applying Davidov’s purposive approach to labour law methodology this dissertation has evaluated the means of the FPA against its goals. This evaluation has shown that the FPA has numerous strengths and potential for achieving these goals. Particularly in regard to promoting collective bargaining, redistribution and workplace democracy. It has been shown that opponents of the FPA who claim that it is undemocratic, inefficient, and will create unemployment are misguided. However, for the FPA means to fully realise its goals the Authority needs to show a willingness to determine decent and inclusive terms and union membership needs to be actively supported.
Bibliography
A. New Zealand Legislation
Care and Support Worker (Pay Equity) Settlement Act 2017 Crimes Act 1961Commerce Act 1986 Employment Contracts Act 1991 Employment Relations Act 2000
Employment Relations Amendment Act 2004 Employment Relations Amendment Act 2014 Employment Relations Amendment Act 2018 Equal Pay Act 1972
Holidays Act 1944
Holidays Act 2003
Home and Community Support (Payment for Travel between Clients) Settlement Act 2016 Immigration Act 2009
Incorporated Societies Act 1908
Industrial Conciliation and Arbitration Act 1894
Industrial Conciliation and Arbitration Amendment Act 1936 Industrial Relations Act 1973
Labour Relations Act 1987 Minimum Wage Act 1945 Minimum Wage Act 1983 Minimum Wage Order 2021
New Zealand Bill of Rights Act 1990
Parental Leave and Employment Protection Act 1987 Screen Industry Workers Bill 2019
Volunteers Employment Protection Act 1973 Wages Protection Act 1983
B. International Conventions and Declarations
International Covenant on Economic, Social and Cultural Rights 1966 (ICESCR) (opened for signature 16 December 1966, entered into force 28 December 1978)International Covenant on Civil and Political Rights 1966 (ICCPR) (opened for signature 16 December 1966, entered into force 28 December 1978)
International Labour Organisation Convention 87 on Freedom of Association and Protection of the Right to Organise (opened for signature 17 June 1948)
International Labour Organisation Convention 98 on Right to Organise and Collective Bargaining (opened for signature 18 Jul 1951, entered into force 9 June 2003)
International Labour Organisation Constitution (International Labour Organization Constitution (Adopted by the Peace Conference in April 1919, the ILO Constitution was Part XIII of the Treaty of Versailles))
International Labour Organisation Declaration of Philadelphia 1944
International Labour Organisation Tripartite Declaration of Principles concerning Multinational Enterprises and Social Policy 1977
International Labour Organisation Declaration on Fundamental Principles and Rights at Work 1998 International Labour Organisation Declaration on Social Justice for a Fair Globalization 2008 International labour Organisation Governing Body Committee on Freedom of Association “Compilation of Decisions on Freedom of Association” (CFA Compilation, ILO, 2018)
C. New Zealand Cases
Assoc of University Staff v Vice-Chancellor of the University of Auckland [2005] NZEmpC 38; (2005) ERNZ 224 (2005) 2 NZELR 227 (EmpC)
First Union v Jacks Hardware and Timber Ltd, t/a Mitre 10 Mega Dunedin and Mitre 10 Mosgiel
[2015] NZEmpC 230
Eastern Bay Independence Industrial Workers Union Inc v ABB Ltd (2008) 6 NZELR 14 (EmpC)
Eketone v Alliance Textiles (NZ) Ltd (1993) 2 ERNZ 783
National Union of Public Employees (Inc) v Asure New Zealand Ltd and New Zealand Public Service Assoc [2004] NZEmpC 103; (2004) 2 ERNZ 487 (EmpC)
New Zealand Public Service Assoc Inc v Secretary for Justice (2010) NZEMPC 11, (2010) 7 NZELR 215
PMP Print Ltd and Anor v New Zealand Amalgamated Engineering Printing and Manufacturing Union Inc CA162/04, 22 December 2004.
Service & Food Workers Union Nga Ringa Tota v Auckland District Health Board [2007] ERNZ 553 (EmpC)
Service & Food Workers Union Inc v OCS Ltd EmpC WC20/05, 5 September 2005
Tucker Wool Processors Ltd v Harrison [1999] NZCA 146; (1999) 1 ERNZ 894 (CA260/98)
Toll New Zealand Consolidated Ltd v Rail & Maritime Union Inc [2004] NZEmpC 64; [2004] 1 ERNZ 392 (EmpC)
University Staff Inc v Vice-Chancellor of the University of Auckland [2005] NZEmpC 38; [2005] ERNZ 224 (EmpC).
D. International Cases
Lochner v New York [1905] USSC 100; 198 US 45 (1905)
E. Books and E-Books
Alan Bogg The Democratic Aspects of Trade Union Recognition (ProQuest Ebook Central, 2009) Erling Rasmussen Employment Relationships : Workers, Unions and Employers in New Zealand (ProQuest Ebook Central, 2010)
Gordon Anderson Reconstructing New Zealand’s Labour Law: Consensus or Divergence? (Victoria University Press, Wellington, 2011)
Gordon Anderson, Dawn Duncan and John Hughes Employment law in New Zealand (2nd ed, LexisNexis, Wellington, 2017)
Guy Davidov and Brian Langille The Idea of Labour Law (Oxford Scholarship Online, 2011) Guy Davidov A Purposive Approach to Labour Law (Oxford Scholarship Online, 2016)
Guy Davidov and Brian Langille Boundaries and Frontiers of Labour Law : Goals and Means in the Regulation of Work (ProQuest Ebook Central, 2006)
Guy Davidov and Brian Langille Boundaries and frontiers of labour law : Goals and means in the regulation of work (ProQuest Ebook Central, 2006)
Hugh Collins, Gillian Lester, and Virginia Mantouvalou Philosophical Foundations of Labour Law
(Oxford Scholarship Online, 2019)
James Holt Compulsory Arbitration in New Zealand: The First Forty Years (Auckland University Press, New Zealand, 1986)
Jane Franklin (ed) Equality (Institute for Public Policy Research, London, 1997)
Mark Freedland and Nicola Kountouris The Legal Construction of Personal Work Relations
(Oxford Publishing Online, 2011)Milton Friedman Capitalism and Freedom (University of Chicago Press 1962)
Max Rashbrooke Inequality: A New Zealand Crisis (ProQuest Ebook Central, 2013)
Milton Friedman and Rose Friedman Free to Choose: A Personal Statement (Harcourt Brace Jovanovich 1980)
Paul Davies and Mark Freedland, Kahn-Freund’s Labour and the Law (3rd ed, Stevens, London, 1983)
Paul Dalziel and Ralph Lattimore The New Zealand Macroeconomy: A Briefing on the Reforms, Oxford (University Press, Auckland, 1999)
Ruth Dukes The Labour Constitution: The Enduring Idea of Labour Law (Oxford University Press, Oxford, 2014)
Shae McCrystal The Right to Strike in Australia (The Federation Press, Sydney, 2010)
Stephen Befort and John Budd Invisible Hands, Invisible Objectives: Bringing Workplace Law and Public Policy Into Focus (Stanford University Press, California, 2009)
Susan Hayter Role of Collective Bargaining in the Global Economy : Negotiating for Social Justice
(ProQuest Ebook Central, 2011)
Timothy Archer and Gillian Morris Collective Labour Law (Hart Publishing, Oxford, 2000) William Pember Reeves State Experiments in Australia and New Zealand (Macmillian, Melbourne, 1968, first published 1902) vol 2
F. Chapters in Books and E-Books
Alan Bogg and Cynthia Estlund “The Right to Strike and Contestatory Citizenship” in Hugh Collins, Gillian Lester, and Virginia Mantouvalou (eds) Philosophical Foundations of Labour Law (Oxford Scholarship Online, 2019) 229Alan Bogg and Keith Ewing “Freedom of Association” in Matthew W Finkin and Gai Mundlak (eds) Comparative Labour Law (Edward Elgar Publishing, Cheltenham, 2015) 296
Alan Hyde “The Idea of the Idea of Labour Law: A Parable” in Guy Davidov and Brian Langille (eds) The Idea of Labour Law (Oxford Scholarship Online, 2011) 89.
Brian Langille “Labour Law’s Theory of Justice” in Guy Davidov and Brian Langille (eds) The Idea of Labour Law (Oxford Scholarship Online, 2011) 101.
Branimir Sverko and Vlasta Vizek-Vidovic “Studies of the Meaning of Work: Approaches, Models, and Some of the Findings” in Donald E Super and Branimir Sverko (eds) Life Roles, Values, and Careers: International Findings of the Work Importance Study (Jossey-Bass, 1995) 3
Erling Rasmussen “Introduction” in Erling Rasmussen (ed) Employment Relationships : Workers, Unions and Employers in New Zealand (ProQuest Ebook Central, 2010) 1
Guy Davidov “Introduction” in A Purposive Approach to Labour Law (Oxford Scholarship Online, 2016) 1
Guy Davidov “Articulating Labour Law’s Goals: Why and How” in A Purposive Approach to Labour Law (Oxford Scholarship Online, 2016) 13
Guy Davidov and Brian Langille “Understanding Labour Law: A Timeless Idea, a Timed-Out Idea, or an Idea Whose Time has Now Come?” in Guy Davidov and Brian Langille (eds) The Idea of Labour Law (Oxford Scholarship Online, 2011) 1.
Guy Davidov and Brian Langille “Introduction: Goals and Means in the Regulation of Work” in Guy Davidov and Brian Langille (eds) Boundaries and Frontiers of Labour Law : Goals and Means in the Regulation of Work (ProQuest Ebook Central, 2006) 1
Guy Davidov “The Idea of Labour Law as Addressing Vulnerabilities or Labour Market ‘Problems” in A Purposive Approach to Labour Law (Oxford Scholarship Online, 2016) 34
Guy Davidov “The Values and Interests Advanced by Labour Law” in A Purposive Approach to Labour Law (Oxford Scholarship Online, 2016) 55
Guy Davidov “The Goals of Specific Labour Laws: Some Examples” in A Purposive Approach to Labour Law (Oxford Scholarship Online, 2016) 72
Guy Davidov “Addressing the Compliance/ Enforcement Crisis” in A Purposive Approach to Labour Law (Oxford Scholarship Online, 2016) 224
Guy Davidov and Brian Langille “Introduction: Goals and Means in the Regulation of Work” in Guy Davidov and Brian Langille (eds) Boundaries and frontiers of labour law : Goals and means in the regulation of work (ProQuest Ebook Central, 2006) 1
Guy Davidov “Re-Matching Labour Laws with Their Purpose” in Guy Davidov and Brian Langille (eds) The Idea of Labour Law (Oxford Scholarship Online, 2011) 179.
Ganesh Nana “The Cost of Inequality” in Max Rashbrooke (ed) Inequality: A New Zealand Crisis
(ProQuest Ebook Central, 2013) 55Harry Arthurs “Labour Law After Labour” in Guy Davidov and Brian Langille (eds) The Idea of Labour Law (Oxford Scholarship Online, 2011) 15.
Hugh Collins, Gillian Lester, Virginia Mantouvalou "Introduction: Does Labour Law Need Philosophical Foundations?” in Hugh Collins, Gillian Lester, and Virginia Mantouvalou (eds) Philosophical Foundations of Labour Law (Oxford Scholarship Online, 2019)
Hugh Collins “Justifications and Techniques of Legal Regulation of the Employment Relation” in Hugh Collins, Paul Davies, and Roger Rideout (eds), Legal Regulation of the Employment Relation (Kluwer Law International, International, 2000) 3.
Hugh Collins “Is the Contract of Employment Illiberal?” in Hugh Collins, Gillian Lester, and Virginia Mantouvalou (eds) Philosophical Foundations of Labour Law (Oxford Scholarship Online, 2019) 48
Hugo Sinzheimer “Das Wesen des Arbeitsrechts” (1927) in Hugo Sinzheimer (ed) Arbeitsrecht und Rechtsso-ziologie, vol 1 (Bund Verlag, 1976) 108
Kevin Hince “From William Pember Reeves to William Francis Birch: from conciliation to contracts” in Raymond Harbridge (ed) Employment Contracts: New Zealand Experiences (Victoria University Press, Wellington, 1993) 7.
Laila Harré “Collective Bargaining - right or privilege?” in Erling Rasmussen (ed) Employment Relationships : Workers, Unions and Employers in New Zealand (ProQuest Ebook Central, 2010) 24
Martin O’Neill and Stuart White “Trade Unions and Political Equality” in Philosophical Foundations of Labour Law (Oxford Scholarship Online, 2019) 252.
Margret Wilson “The Politics of Workplace Reform: 40 Years of Change” in Gordon Anderson, Alan Geare, Erling Rasmussen and Margret Wilson (eds) Transforming Workplace Relations in New Zealand 1976-2016 (Victoria University Press, Wellington, 2017) 44.
Manfred Weiss “Re-Inventing Labour Law?” in Guy Davidov and Brian Langille (eds) The Idea of Labour Law (Oxford Scholarship Online, 2011) 43.
Margaret Wilson “A struggle between competing ideologies” in Erling Rasmussen (ed) Employment Relationships : Workers, Unions and Employers in New Zealand (ProQuest Ebook Central, 2010) 9
Max Rashbrooke “Why Inequality Matters” in Max Rashbrooke (ed) Inequality: A New Zealand Crisis (ProQuest Ebook Central, 2013) 1
Max Rashbrooke “Inequality in New Zealand” in Max Rashbrooke (ed) Inequality: A New Zealand Crisis (ProQuest Ebook Central, 2013) 20 at 23
Nigel Haworth “The Rewards of Work” in Max Rashbrooke (ed) Inequality: A New Zealand Crisis
(ProQuest Ebook Central, 2013) 198
Pat Walsh and Rose Ryan “The making of the Employment Contracts Act” in Raymond Harbridge (ed) Employment Contracts: New Zealand Experiences (Victoria University Press, Wellington, 1993) 13.
Paul Barber “Reducing Inequality” in Max Rashbrooke (ed) Inequality: A New Zealand Crisis
(ProQuest Ebook Central, 2013) 167Pablo Gilabert “Dignity at Work” in Hugh Collins, Gillian Lester, and Virginia Mantouvalou (eds)
Philosophical Foundations of Labour Law (Oxford Scholarship Online, 2019) 68
G. Journal Articles
Amartya Sen “Human Capital and Human Capability” (1997) 25 World Development 1959Avalon Kent “New Zealand’s Fair Pay Agreements: A New Direction in Sectoral and Occupational Bargaining” (2021) 31 Labour & Industry 1
Christopher Ball and John Creedy “Inequality in New Zealand 1983/84 to 2012/13” (2016) 50 New Zealand Economic Papers 323
Chris Wright and Colm McLaughlin “Trade Union Legitimacy and Legitimation Politics in Australia and New Zealand” (2021) 60(3) Industrial Relations 338
David Brougham, Jarrod Haar, and Marie Roche “Work-family enrichment, collectivism, and workplace cultural outcomes: a study of New Zealand Māori” (2015) 40(1) New Zealand Journal of Employment Relations 19
David C Yamada “Human Dignity and American Employment Law” (2009) 43 U Rich LR 523. David Peetz “Awards and collective bargaining in Australia: what do they do, and are they relevant to New Zealand?” (2020) 44 New Zealand Journal of Employment Relations 58
David Peetz “Does Industrial Relations Policy Affect Productivity?” (2012) 38(4) Australian Bulletin of Labour 268
Dawn Duncan “COVID-19 and Labour Law: New Zealand” (2020) 13 Italian Labour Law e- Journal1
Erik Bengtsson "Do Unions Redistribute Income from Capital to Labour? Union Density and Wage Shares Since 1960” (2014) 45(5) Industrial Relations Journal 389
Felicity Lamm, Claire Massey, and Martin Perry “Is there a link between Workplace Health and Safety and Firm Performance and Productivity?” (2007) 32(1) New Zealand Journal Employment Relations 72
Gordon Anderson “Labour law under stress: some thoughts on Covid-19 and the future of the labour law” (2020) 45 New Zealand Journal of Employment Relations 33
Gordon Anderson, Peter Gahan, Richard Mitchell, and Andrew Stewart “The Evolution of Labour Law in New Zealand: A Comparative Study of New Zealand, Australia, and five other Countries” (2011) 33 Comparative Labor Law & Policy Journal 137
Gordon Anderson "'The Sky Didn't Fall In': An Emerging Consensus on the Shape of New Zealand Labour Law?" (2010) 23 Australian Journal of Labour Law 94
Gordon Anderson and Lucy Kenner “Enhancing the effectiveness of minimum employment standards in New Zealand” (2019) 30(3) The Economic and Labour Relationship Review 345 Guy Davidov “Articulating Labour Law's Goals: Why and How” (2012) 3 EUR. LAB. L.J. 130
Guy Davidov “A Purposive Interpretation of the National Minimum Wage Act” (2009) 72 Modern Law Review 581
Guy Davidov “Collective Bargaining Law - Purpose and Scope” (2004) 20 Int J Comp Lab L & Ind Rel 81
Jelle Visser “What happened to collective bargaining during the great recession?” (2016) 5 IZA Journal of Labor Policy 9
Jenna Rennie “Developments in Collective Bargaining Since 2004” [2008] CanterLawRw 6; (2008) 14 Canterbury Law Review 159
Jens Lind and Erling Rasmussen “In support of a New Zealand ‘living wage’: reflections on Danish ‘working poor’ trends and issues.” (2014) 38(2) New Zealand Journal of Employment Relations 17 John Reardon and Tim Gray “`About Turn': An Analysis of the Causes of the New Zealand Labour Party's Adoption of Neo-liberal Economic Policies, 1984-1990” (2007) 78 The Political Quarterly 447
John Deeks "Ideology and Industrial Relations in New Zealand" (1976) 1 NZJIR 2
Judith Scott “Mechanisms for Resolving Collective Bargaining Disputes in New Zealand” (2014) 39(2) New Zealand Journal of Employment Relations 62
Jonathan Barrett and Leigh Thomas “Returning Dignity to Labour: Workplace Safety as a Human Right” (2012) 37(1) New Zealand Journal of Employment Relations 82
Keith Ewing “Regulating for Decent Work and the Effectiveness of Labour Law” (2014) 39(2) New Zealand Journal of Employment Relations 3
Mark Harcourt, Gregor Gall, Margret Wilson, Korey Rubenstein and Sudong Shang “Public support for a union default: Predicting factors and implications for public policy” (2020) 1 Economic and Industrial Democracy 1
Mirko Draca, Stephen Machin, and John Van Reenen “Minimum Wages And Firm Profitability” (2011) 3 American Economic Journal: Applied Economics 129
Nigel Haworth “Commentary: On the Bright Side: Covid-19, a Perverse Once-in- One-Hundred Year Opportunity” (2020) 45 New Zealand Journal of Employment Relations 47
Noel Woods “The Industrial Relations Situation in New Zealand” (1970) 12 Journal of Industrial Relations 360
Peter Kuhn “Unions and the Economy: What We Know; What We Should Know” (1998) 31 Canadian Journal of Economics 1033
Samuel Bowles “The Production Process in a Competitive Economy: Walrasian, Neo-Hobbesian, and Marxian Models” (1985) 75(1) American Economic Review 16.
Sara Lemos "A Survey of the Effects of the Minimum Wage On Prices” (2008) 22 Journal of Economic Surveys 187
Shae McCrystal “Termination of Enterprise Agreements under the Fair Work Act 2009 (Cth) and Final Offer Arbitration” (2018) 31 Australian Journal of Labour Law 131
Simon Deakin “Thirty Years On: Labour Market Deregulation and its Aftermath in New Zealand and the United Kingdom” (2019) 50 Victoria University of Wellington Law Review 193
Simon Mitchell “Can Collective Bargaining Deliver Decent Work?” (2015) 39(2) New Zealand Journal of Employment Relations 15
Steve Hughes and Nigel Haworth “Decent Work and Poverty Reduction Strategies” (2011) 66 Relations Industrielles / Industrial Relations 34
Stephen Marglin "What Do Bosses Do? The Origins and Functions of Hierarchy in Capitalist Production” (1974) 6(2) Review of Radical Political Economics 60
Susan Hayter “Introduction: What future for industrial relations?” 154(1) International Labour Review 1
Tonia Novitz “The Perils of Collective Begging: the case for reforming collective labour law globally and locally too” (2020) 44(2) New Zealand Journal of Employment Relations 3
H. Government Documents
Bryan Perry “Household Incomes in New Zealand: Trends in Indicators of Inequality and Hardship 1982 to 2011” (Prepared for the Ministry of Social Development, 2012)Cabinet Briefing Paper “Advice on contractors in the Fair Pay Agreements system” (4 December 2020) 2021-1541
Cabinet Briefing Paper “Initial summary of submissions on the Fair Pay Agreements discussion document” (19 December 2019) 1866 19-20
Cabinet Briefing Paper “Final summary of submissions on the Fair Pay Agreements discussion document” (7 February 2020) 1892 19-20
Cabinet Briefing Paper “Supplementary summary of submissions on the Fair Pay Agreements discussion paper - overall merits of the system” (7 February 2020) 2009 19-20
Cabinet Briefing Paper “Draft Cabinet paper 'Fair Pay Agreements: Approval to draft’” (26 March 2021) 2021-2519
Cabinet Paper “Improving the Employment Relations and Standards System: Fair Pay Agreements” (13 July 2018)
Cabinet Paper “Fair Pay Agreements: Approval to draft” (7 May 2021)
Cabinet Minute “Fair Pay Agreements: Policy Approval” (7 May 2021) CAB-21-MIN-0126 Commerce Commission “Market study into the retail grocery sector; Draft report - executive summary” (July 2021)
Fair Pay Agreements Working Group “Fair Pay Agreements: Supporting workers and firms to drive productivity growth and share the benefits” (Ministry of Business, Innovation and Employment 2018)
Parliamentary Library Background Paper No. 16 “The Employment Contracts Act and its Economic Impact” (Andrew Morrison, Economist, November 1996)
Ministry of Business, Innovation and Employment “Code of Good Faith in Collective Bargaining” (2 May 2019)
Ministry of Business, Innovation and Employment “Discussion Paper - Designing a Fair Pay Agreements System” (October 2019)
Ministry of Business, Innovation and Employment “Consultation Summary - Designing a Fair Pay Agreements System” (October 2019)
Ministry of Business, Innovation and Employment “Better protections for contractors - Discussion document for public feedback” (November 2019)
Ministry of Business, Innovation and Employment “Fair Pay Agreements - Regulatory Impact Statement” (July 2021)
Ministry of Business, Innovation and Employment “Future of Work Tripartite Forum Strategic Assessment” (November 2019)
I. Unpublished Papers
Alison Pennington “Workplace Policy Reform in New Zealand: What are the Lessons for Australia?” (The Centre for Future Work at the Australia Institute, Australia, March 2019)Charles Waldegrave, Peter King and Michaela Urbanová "Report of the Measurement Review for a New Zealand living wage” (Family Centre Social Policy Research Unit, report prepared for Living Wage Movement Aotearoa NZ, March 2018)
Charles Waldegrave "Living Wage Aotearoa New Zealand 2021 Update” (Family Centre Social Policy Research Unit, report prepared for Living Wage Movement Aotearoa NZ, 2021) Christina Stringer “Worker Exploitation in New Zealand: A Troubling Landscape” (The Human Trafficking Research Coalition. Auckland, New Zealand, 2016)
Ganesh Nana “M4king Sen5e of 7he Numbers; Sector wage bargaining – a literature review” (Beryl, New Zealand, 2019)
Gordon Anderson “Transforming Workplace Relations: The Way Forward” (Victoria University of Wellington Legal Research Papers, Victoria University, 2018) 1
Gordon Anderson “A Proposal for Four Key Reforms to New Zealand’s Labour Law” (Discussion Paper, Victoria University, 2017) 1
Florence Jaumotte and Carolina Osorio Buitron “Inequality and Labour Market Institutions" (International Monetary Fund, Staff Discussion Note 15/14, Washington DC 2015)
John Creedy, Norman Gemmell and Loc Nguyen “Income Inequality in New Zealand, 1935 – 2014” (Working Paper, Victoria University of Wellington, 2017)
Lawrence Mishel “Unions, Inequality, and Faltering Middle-Class Wages" (Economic Policy Institute Issue Brief No. 342, 2012)
New Zealand Law Society “Designing a Fair Pay Agreements System” (Discussion Paper Response, New Zealand Law Society, Wellington, 2019)
PricewaterhouseCoopers “Fair Pay Agreements; What will they mean for New Zealand businesses?” (PwC Employment Advisory Team, New Zealand, 6 August 2021)
Roger Partridge and Bryce Wilkinson “Work in Progress: Why Fair Pay Agreements would be bad for labour” (Report, The New Zealand Initiative, Wellington, 2019)
J. News Articles
Hamish Rutherford “MBIE recommended Government drop Fair Pay Agreement warning of ‘bargaining stalemate’” NZ Herald (New Zealand, 08 July 2021) <https://www.nzherald.co.nz> Henry Cooke “Fair Pay Agreements: How does it work and what will it mean for you” Stuff Limited (New Zealand, 07 May 2021) <https://www.stuff.co.nz>Henry Cooke “Officials recommended scrapping Labour's Fair Pay Agreement plan and strengthening existing law” Stuff Limited (New Zealand, 8 July 2021) <https://www.stuff.co.nz> Jason Walls “Unions vs businesses: Fair pay agreement news staunchly divides factions” NZ Herald (New Zealand, 7 May 2021) <https://www.nzherald.co.nz>
Jenée Tibshraeny “MBIE advised the government against making it compulsory for employers and employees that fall under a Fair Pay Agreement to engage in collective bargaining” interest.co.nz (New Zealand, 8 July 2021) <https://www.interest.co.nz>
Justin Giovannetti “The government’s fair pay agreements plan is a big deal” The Spinoff (New Zealand, 8 May 2021) <https://thespinoff.co.nz>
Luke Malpass “Government announces 'Fair Pay Agreements' plan in radical overhaul of New Zealand employment laws” Stuff Limited (New Zealand, 07 May 2021) <https://www.stuff.co.nz> Matthew McCarten "Fair pay agreements — a victory for all workers” E-Tangata (New Zealand, 9 May 2021) <https://e-tangata.co.nz>
ProQuest One Academic “New Zealand : Governments Fair Pay Agreement work to begin” MENA Report (London, 5 June 2018) 1 2
ProQuest One Academic “New Zealand : Horse shot from under Fair Pay Agreements” MENA Report (London, 9 July 2019) 1
Pauline Bomball “Sectoral Bargaining is Coming to New Zealand” OnLabour (Australia, 21 May 2021) <https://onlabor.org/sectoral-bargaining-is-coming-to-new-zealand>
Susan Hornsby-Geluk “The Fair Pay Agreements system still faces significant challenges"Stuff Limited (New Zealand, 30 June 2021) <https://www.stuff.co.nz>
Simon Hartley “Clash over fair pay agreements” Otago Daily Times (New Zealand, 1 February 2019) <https://www.odt.co.nz/>
Zane Small “Labour accused of being 'stuck in 1970s' as Business NZ calls for Fair Pay Agreements to be terminated” News Hub (New Zealand, 7 Many 2021)
K. Internet Materials
Doug Martin “Issues and Challenges for a New Wave of Collective Bargaining” (2018) < https://medium.com>Honourable Michael Wood “Fair Pay Agreements to improve pay and conditions for essential workers” (2021) Workplace Relations and Safety <https://www.beehive.govt.nz/release/fair-pay- agreements-improve-pay-and-conditions-essential-workers>
International Labour Organisation “Decent Work” (2020) ILO
<https://www.ilo.org/global/topics/decent-work/lang--en/index.htm> International Labour Organisation "Decent Work for All." (2010)
<http://www.ilo.org/global/About_the_ILO/Mainpillars/ WhatisDecentWork/lang-en/index.htm> International Labour Organisation “Collective Bargaining: A Policy Guide” (2015)
<https://www.ilo.org/travail/whatwedo/instructionmaterials/WCMS_425004/lang--en/index.htm> Ministry of Business, Innovation and Employment “Better protections for vulnerable contractors” (2020) <https://www.mbie.govt.nz/have-your-say/better-protections-for-contractors/>
NZHistory “The 1913 Great Strike” (2014) New Zealand History Online
<https://nzhistory.govt.nz/politics/1913-great-strike>
NZHistory “The 1951 waterfront dispute” (2017) New Zealand History Online
<https://nzhistory.govt.nz/politics/the-1951-waterfront-dispute>
Organization for Economic Cooperation and Development (2021). “Employment and Labour Force Statistics.” <https://www.oecd-ilibrary.org/employment/data/oecd-employment-and- labour-market- statistics_lfs-data-en>
OECD “Employment Outlook 2018” (2018) <https://read.oecd-ilibrary.org/employment/oecd- employment-outlook- 2018_empl_outlook-2018-en#page1>
Richard Wagstaff “Fair Pay Agreements - Set to Deliver on Real Fairness at Work” (2021) New Zealand Council of Trade Unions <https://www.union.org.nz/>
L. Conferences
International Labour Organisation “Giving globalization a human face. General Survey on the fundamental Conventions concerning rights at work in light of the ILO Declaration on Social Justice for a Fair Globalization 2008, Report III (Part 1B)” (International Labour Conference, 101st Session, Geneva, 2012)Omar A. Aziz, Matthew Gibbons, Chris Ball and Emma Gorman “Fiscal Incidence in New Zealand: The Distributional Effect of Government Expenditure and Taxation on Household Income, 1988 to 2010" (53rd New Zealand Association of Economists Annual Conference, Palmerston North, 2012)
M. Interviews
Interview with Kirk Hope, BusinessNZ CEO (National Business Review, ‘Disagreement on whether fair pay agreements will lift productivity, prices’, 28 April 2021)Interview with Michael Wood, Minister for Workplace Relations and Safety (National Business Review, ‘Fair pay legislation likely to be introduced this year’, 04 March 2021)
Interview with Richard Wagstaff, Council of Trade Unions president and Kirk Hope, BusinessNZ CEO (National Business Review, ‘Compulsory unionism - yea or nay?’, 05 July 2019)
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