Policy 701
Final Report
Identifying possible effects of and response to moves to reduce union officials’ access to non-unionised worksites.
Carl Anderson
Final Policy Report
Carl Anderson-Policy 701
1.Research Topic:
To identify possible effects of and response to moves to reduce union officials’ access to non-unionised worksites.
2.Executive Summary:
Intention:
The intent of this project is to determine whether reductions in access rights are likely to harm unions or workers, and if so, what ought to be done to remedy this problem.
The Changes:
The National Government intends to change the right to access worksites by giving employers a right to refuse entry to a worksite, although entry must not be withheld unreasonably.
Research approach:
Public comments and submissions by interested parties, as well as secondary material published by the Department of Labour, the Minister of Labour, and other interested parties have been used.
The research has been informed by the concepts of information asymmetry, and of class power inequality.
Findings:
That the changes to union officials’ access rights were not strongly sought by peak employer groups, and were strongly opposed by peak union groups.
That the changes to union access may be used to deny, delay or restrict union officials’ access to worksites.
That the changes to union access rights will have a strong negative impact on the ability of workers in non-unionised sites to have access to union officials, and to join unions.
Recommendations:
Specific recommendations as to next steps are to be found at the end of the report.
Table of Contents
P2 Research Topic
P2 Executive Summary
P4 Introduction
P4 Background
P6 Analytical Framework
P7 Research Process
P9 Stakeholders’ Views of the Change
P11 Likely Effects of the Change
P13 Case Study: Readings Cinemas
P15 Findings
P16 Recommendations
P17 Conclusion
P18 Bibliography
3. Introduction:
The intention of this study is to discern whether proposed moves to limit the rights of union officials to access worksites will likely have a negative impact on workers’ rights to gain information about unions, and access to them.
If such a result seems likely, consideration will be given as to steps which could be taken to remedy these negative impacts.
The project is aimed at senior officials of New Zealand Trade Unions, as well as opposition and government MPs, who are interested in the effects of this change on union access.
This subject is of great potential importance to union officials in particular, as an understanding of the relative importance and likely effects of the problem may help union officials in deciding whether to allocate resources to combating it, and if so, what the changes ought to be replaced with.
Originally, the dissemination plan for this report included the creation of a Powerpoint presentation. This has been removed, as it was not viewed as adding additional value given the production of the report and associated website.
4. Background:
Trade Unions in New Zealand:
New Zealand has relatively low union density, which has fallen dramatically since the Employment Contracts Act in 1991.[1] Trade Unions represent approximately 21.5% of wage and salary earners in New Zealand.[2] It is also important to note that Trade Union membership is far more common in the public sector, and far lower in the private sector.[3]
With such low density, especially amongst lower-paid workers, the question of how easily Trade Unions can access worksites, and how easily workers can access unions is of even greater importance to Trade Unions and workers.
Current access rights:
Union officials have a broad right of access to worksites.
Union officials can access any worksite for a broad range of purposes including:
- To discuss union business with union members,
- To discuss union business with non-members,
- To discuss issues relating to the employment of members or non-members.[4]
In practice, these broad categories meant that union officials could enter worksites for any purpose relating to union business, or the affairs of members or non-members.
This right of access was only restricted by a requirement to act reasonably in accessing the site, and a number of restrictions which had limited application.
The effect of this structure is to set a presumption of a right to access, which can be challenged in certain circumstances, with the onus for any challenge being on the employer.
The right of access is also balanced by a right for any employee not to talk to any union official, thus safeguarding the employee’s freedom of association.
Changes to Union Access rights:
Changes proposed by the Government have substantially altered the rights of access.
The presumption of a right to access worksites will be removed.
In its place will be a requirement for Union officials to gain the consent of an employer before entering the site.[5]
This requirement will be subject to a provision that this consent may not be unreasonably withheld. This provision may act as a safeguard against employers flatly refusing access.
However, the change places the onus for challenging such a refusal on the Union concerned, which gives rise to a risk that access will in practice be denied or delayed, and gives rise to a possibility of time-consuming and costly legal challenges, before access is gained.
Assumptions and criticisms:
The project assumes that union access to work sites is desirable.
While it is not within the scope of this project to comprehensively prove this assumption, it is noted that this can be seen as desirable on the grounds that workers ought to have freedom to choose whether or not to talk to union officials at their work site, and for information on unions to be available to them.
In any case, this project is aimed at advising union officials, and as such, this assumption is clearly in line with the interests and needs of the target audience, and is therefore justifiable.
It is also noted that, in general, workers in a union receive higher pay and conditions than non-unionised workers. For instance, in 2009, unionised workers receive an average 4.6% pay rise, while non-unionised workers received an average pay rise of 1.6%.[6]
As such, it seems clear that union access can be seen as desirable in terms of lifting pay rates for workers, and in terms of freedom of choice.
Some might criticise the desirability of union access on the grounds that employers should have the right to determine whether a union official enters their property. While private property rights are an important and valid consideration, they must be balanced against employees’ rights.
Private property rights can also be protected by placing limits as to how access happens. It is also noted that the previous access rights did prevent union officials entering any dwelling without consent, which does address privacy considerations.[7]
By their nature, worksites are less private places than dwelling houses, as they are frequently entered by customers, workers, suppliers, tradespeople, and others. As such, the employer’s privacy rights and needs are weaker than in their home, for example.
5. Analytical Framework:
Two key concepts have informed the creation and execution of this project: asymmetry of information, which we might describe as a market failure, and disparity of power, which we might describe as class analysis. These will be discussed in turn.
Assymetry of information:
It is clear from Haynes’ work on the “representation gap”, that many workers would join unions if they had an opportunity to do so.[8] As the Readings Cinemas case study below shows, workers are not able or willing to seek out a union outside of their worksite, but will often join immediately after being spoken to by a union official.
This suggests that a lack of information about unions and how to join them prevents employees from being able to access unions.
This can be seen as a market failure, in that there is a clear shortage of information which employees can use to improve their pay and conditions, when union officials are unable to access their sites.[9]
Allowing union officials wide powers of access is a way of giving this information to more workers, and allowing them to make an informed choice as to whether they join a union.
Class Analysis:
New Zealand does not have a rigid class system, and it cannot be reliably said that, for instance, all cinema workers belong to a given class.
However, the concept of class power inequality can be viewed as analogous to gender or ethnic inequality, and used to think about the disadvantages workers have in negotiating with employers, and about the shared interests workers have.[10] For instance, all workers have an interest in higher wages and better conditions, and in being represented properly in any dispute.
Class analysis can also be used to think about the steps which can be taken to increase the amount of power workers have in negotiating with employers.
This relies on an assumption that it is desirable to give workers a stronger voice in determining their pay and conditions, that that should be done collectively, and that it is desirable for a greater share of the country’s resources to go to workers.
While some would disagree with this assumption, this ultimately rests on political values.
6. Research Process:
The process of researching this topic followed a number of steps, using both primary and secondary sources. These sources are briefly discussed below.
Primary sources:
Questionnaires were sent out to eight interested persons, to gain their insights into the topic. Unfortunately, only one of those contacted was willing to participate in the project. This necessitated a greater reliance on secondary materials.
Fortunately, public comments by a number of key actors were available, which mitigated the effect of the unavailability of primary material.
Discussions with Joe Hendren, Researcher with the National Distribution Union (NDU) have highlighted a number of other useful secondary sources.
Case Study:
Originally, two case studies were to be used to illustrate the impact the changes may have. These were to be the cinema industry, and the supermarket industry.
However, during the writing of the report it became clear that two case studies could not be usefully completed within the word limit prescribed, and that it would be more desirable to complete one, more detailed case study. As such, a decision was taken to focus on the Readings Cinemas case study.
The case study was chosen as it provides a clear practical example of a situation in which a non-unionised workplace has been successfully unionised. It is illuminating as it clearly illustrates issues with information asymmetry and class analysis.
Information for the case study was found in an article by Grace Millar, and in answers to the questionnaire kindly returned by Ms Millar.
Secondary sources:
Secondary sources focus on Department of Labour policy documents, research papers and book articles by a number of academic writers, as well as union officials and public comments as reported in news media and press releases.
Department of Labour policy documents have been useful in highlighting Business NZ’s apparently weak preference for the changes, as highlighted by their willingness to support the status quo.
An article by Laila Harre on union access has also been illuminating.[11] This article in turn led to an article by Peter Conway on the experience of supermarket workers in the 1990s, under the previous National government.[12]
7. Stakeholders’ views of the change:
The views of a number of key stakeholders became clear during the process of consultation and consideration of the policy. It is useful to consider these views, and to consider the possible reasons for them.
What follows is a brief consideration of the views of:
- Council of Trade Unions (CTU)
- Business New Zealand (BNZ)
- Engineering Printing and Manufacturing Union of New Zealand (EPMU)
- Department of Labour (DOL)
- The Minister of Labour, Kate Wilkinson.
CTU:
The CTU is strongly opposed to the changes.[13] In their view, the changes will have a strong, negative impact on the operation of unions, and on the rights of members to join unions, and be informed about them, as well as to interact with union officials.[14] The CTU is strongly in favour of the current rights being retained.
The CTU also noted that in practice the previous system seemed to work well, with only nine cases relating to union access having been taken between 2000 and 2009.[15] This seems to suggest that employers and unions were relatively satisfied that the law regarding union access was being complied with.
The CTU also cited as a concern increased compliance costs for employers unsure as to when they can decline access.
BNZ:
BNZ supported the retention of the previous rights, as BNZ members had not raised union access as a major concern.[16] BNZ is of the view that some concerns regarding union access related to uncertainty about the practical meaning of reasonable access, and that these concerns could have been addressed by improved or increased education of unions and employers.
However, BNZ also supported the Government’s changes, despite being concerned that they could be too complicated, especially in terms of requiring written requests for entry.[17]
DOL:
The Department of Labour, in its policy advice to the Minister of Labour, recommended the retention of the previous rights, as they were not causing apparent widespread problems, and the widespread practice of unions providing notification to employers prior to visiting a site was apparently working.[18]
The Department’s perception in this regard seems to be borne out by the opinion of the peak organisations for unions and employers supporting the retention of the previous system.
The Department noted some issues around the definition of reasonable access, but noted that in general this did not lead to major problems.
The Minister of Labour:
The Minister of Labour described the impact of the changes as “marginal” and “symbolic”.[19] This seems to accord with the views expressed earlier, that the changes were not addressed a perceived strong need.
This raises the question as to the motivation for the changes.
Neither of the peak organisations concerned had major concerns about the previous system, and the CTU strongly opposed the changes. As such, it seems likely that this policy change was motivated by a combination of ideological and political factors, including the desire to implement the 2008 National Election Manifesto, rather than in anticipation of making major improvements, or avoiding major harm by implementing the policy.
8. Likely Effects of the Change:
The changes outlined above are likely to have a number of effects on employment relations in New Zealand.
Unionised Sites:
It is unlikely that the effects of the changes will be strongly felt in workplaces where there is already an established union presence, because members of the union can perform tasks such as recruiting, and because unions with an established relationship with an employer will be in a stronger position to ensure that access remains.[20]
Greenfields Sites:
The changes are likely to have a greater impact in “Greenfield sites”; those sites without an established union presence.[21] In Greenfield sites, it will be substantially more difficult for unions to enter a site and begin to build membership, and to mount legal challenges to any refusals to allow entry, as the lack of members in the site will mean that fewer resources are available, and less time and energy can be devoted to such sites.
As such, the changes are likely to reduce the effectiveness with which unions can enter greenfields sites, and recruit workers employed there. This will constrain the ability of union to increase density, and to improve pay and conditions for workers not currently belonging to a union.
Given that workers in low paid service industries tend not to be unionised, this will tend to increase the vulnerability of these workers to mistreatment by their employers.
Delayed Access:
While the prohibition on unreasonable refusal to grant access may deter outright refusal of such access, there is a concern that the provisions will be used to delay access. Delaying access may reduce unions ability to communicate in a timely way, and thus to properly plan and implement industrial strategy.[22]
For instance, if a union official seeks consent to visit a site on a Friday, to discuss plans for industrial action, and consent is delayed by a fortnight, the effectiveness of the industrial action could be severely damaged.
Tighter controls on Access:
Another concern is that while access may not be denied altogether, employers may place restrictions on access, which unions feel compelled to accept, in order to gain consent in a reasonably timely manner. For instance, employers may stipulate that union officials may only go into one particular room, rather than being able to walk throughout the site.[23] This would remove the official’s ability to talk to any worker. Rather, they would be reliant on workers actively seeking them out.
Interaction with other changes:
Another recent change to Employment Relations legislation has been to allow groups other than unions to negotiate Collective Employment Agreements.
This change, when combined with changes to access, could allow employers to delay or restrict union access, while promoting their own Collective Agreement, which would then bind employees, and preclude the union from improving workers pay and conditions.
This strategy was successfully used during the 1990’s by Pak N Save.[24]
Positive Effects:
The factors above have focussed on the possible negative implications for workers and unions of the changes. However, there may also be some positive effects.
The changes will likely improve certainty for employers, as they will know in advance when union officials intend to visit their sites. As such, they will be able to more effectively plan for such visits. As a consequence, disruption to businesses may be reduced, and productivity improved.
The change will also give more importance to employers’ property rights.
Summary:
It seems likely that the cumulative effect of the effects described above will be to reduce the extent to which unions can gain effective access to worksites, and thus reduce the extent to which workers can access unions.
The impact of the change on union operations will be relatively limited in sites in which there is a strong union presence.
The impact of the change will be greater in sites which have no union presence, and will have the effect of preventing union officials from gaining access to that site, and thus from recruiting members.
The likely consequence of this is likely to be a reduction over time in real wages and conditions, compared to what might have been negotiated had effective union access remained.
9. Case Study: Readings Cinemas
The following case study seeks to illustrate a practical example of the likely impacts of reduced union access rights, and to allow the analytical framework to be viewed in an applied rather than theoretical setting.
Background:
The Cinema industry, as with much of the service sector, was deunionised after the introduction of the Employment Contracts Act 1991.[25]
As such, many of the workers in the industry, who are predominantly young, have no experience of unions.
Readings Cinemas in Courtney Place in Wellington, were opened in 2002, and employed no union members. All workers were paid the minimum wage of $8.50 for over 18 year olds, or $6.80 for under 18 year olds.[26]
Union Involvement:
The Unite Union first entered the site in December 2003, recruiting 59 members on the first weekend. Within a year, 95% of staff belonged to the union. Most workers joined the first time they were asked.[27]
This result is explained by the “representation gap”, the number of workers in a non-unionised workplace, who would join a union if one were available. Haynes records this gap as 50.3% of workers aged under 30.[28] The results at Readings Cinemas suggest that even more workers will actually join once they recognize the benefits of joining.
This result strongly suggests that union access gives workers information which they find useful, as the level of union membership went from 0 to 95% within a year of information on unions being provided by union officials. Once information on unions was available, practically all workers joined. This strongly suggests that the previous lack of information about unions was a crucial factor in workers not having previously joined.
Union Action and Bargaining:
By October 2004, the union had undertaken a series of escalating actions at the site, and had successfully negotiated a Collective Employment Agreement (CEA). The CEA provided for pay rates for under 18 year olds to move to adult rates after 260 hours of work, and for adult rates to move from $8.50 to between $9.20 and $9.90.[29]
This demonstrates the impact of class inequality of power on bargaining outcomes.
Prior to the entry of the union, Readings Cinemas paid all staff members the minimum wage, and refused to increase this under any circumstances, even in cases where individual staff members had the support of New Zealand management in seeking increased wages from Readings Cinemas Australian owners.[30]
This demonstrates that staff had practically no power to individually negotiate with the employer, while the employer had the power to set wages, limited only by statutory minimum wage levels. This can effectively seen as an example of inequality between two classes, workers and employers, which can be partially remedied by allowing workers to join a union to more effectively negotiate pay and conditions.
Once union officials entered the site, substantially improved pay rates were negotiated within a year, after a programme of industrial action.
Summary:
Union access rights were crucial in this example. Even though workers were obviously keen to join, there was no union in the site until union officials from outside the site physically visited the site, and recruited members. Even though recruitment was often easy, only requiring one conversation, it still required a visit by a union official.
If the changes had been in place in 2003/2004, it is possible that the union would never have been able to access the site, as it may have been denied access by the employer.
Without any existing members at the site, it may have been difficult for the union to justify devoting resources to any legal challenge relating to the site. Also, if union officials had to seek consent before each visit, the employer may have been able to either delay, restrict or hinder access, or have managers persuade workers not to join.
Indeed, it is Grace Millar’s view that the union’s entry to the Readings Cinemas site would have proven impossible, as the employer would likely have denied or restricted access to the site.[31]
This underlines the importance of union access rights to sites which have no previous union presence.
10. Findings:
In light of the summarised likely effects of the change, and the case study above, the following findings are made regarding the changes to union access.
That the changes to union officials’ access rights were not strongly sought by peak employer groups, and were strongly opposed by peak union groups.
That the “representation gap” theory shows that knowledge about unions and how to access them is a key barrier to workers being able to choose whether to join a union.
That the changes to union access may be used to deny, delay or restrict union officials’ access to worksites.
That the changes to union access rights will have a strong negative impact on the ability of workers in non-unionised sites to have access to union officials, and to join unions.
That the reduced ability to join unions will weaken workers’ ability to negotiate better pay and conditions of employment, and thus to address class inequality of power.
11. Recommendations:
In light of the findings above, the following recommendations are made for consideration by interested parties.
That improving union access rights ought to be a key focus in any strategy to extend the opportunity to join a union to workers in non-unionised worksites.
That the CTU and individual unions lobby the Government, and opposition parties to secure union access to worksites limited only by a simple reasonableness test.
That potential employer concerns about the reasonableness of union access be remedied by proposing that the Department of Labour provide educational materials about how to access sites reasonably.
12. Conclusion:
This project sought to examine the likely effect of changes to union access rights on unions and workers.
This was undertaken by examining public comments made by interested parties, policy analysis and statements by the Department of Labour and the Minister of Labour, and relevant secondary material.
As a result of this research, it became clear that while the changes would be of limited importance to worksites with a strong history of union activity, they would have a strong, negative impact on worksites without union presence.
This was underlined by the Readings Cinemas case study, which showed that without liberal access rights, non-unionised worksites would be unlikely to be unionised.
As described above, a set of recommendations was produced to allow a response to this issue.
Bibliography:
Blumenfeld, S, Collective Bargaining, in Rasmussen, E (Ed), Employment Relationships: Workers Unions and Employers in New Zealand.
Conway, Peter, An ”unlucky generation” ? The wages of supermarket workers post-ECA. Labour Market Bulletin, 1999.
Department of Labour. Union Membership Return Report 2009.
Employment Relations Act 2000.
Harre, Laila, in Rasmussen, Erling, Employment Relationships: Workers, Unions and Employers in New Zealand. 2010.
Haynes, P., Vowles, J., Boxall, P., ‘Explaining the younger-older worker union density gap: evidence from New Zealand‘, British Journal of Industrial Relations 43(1), 93-116.
Kelly, H Attacks on workers and unions sinister, http://union.org.nz/news/2010/attacks-on-workers-and-unions-sinister-15710, 15 July 2010.
Little, A, Press Release: Engineering Printing and Manufacturing Union http://www.scoop.co.nz/stories/PO1009/S00261/epmu-releases-employment-law-submission.htm, 21 September 2010.
Millar, G. 2009. Research Note: Popcorn Pickets and Brassbands: Young Workers’ Organising in the Cinema Industry 2003-2006.
Mintrom, Michael. (forthcoming 2011). Contemporary Policy Analysis. New York: Oxford University Press.
Tait, M, Union Access Plans Need Re-think, http://www.stuff.co.nz/business/small-business/4183990/Union-access-plans-need-re-think-Business-NZ, 30 September 2010.
Wilkinson, Hon Kate, Minister of Labour, The Employment Relations Work Programme.
[1] Blumenfeld, S, Collective Bargaining, in Rasmussen, E (Ed), Employment Relationships: Workers Unions and Employers in New Zealand, at 43.
[2] Department of Labour. Union Membership Return Report 2009.
[3] Blumenfeld, S, Collective Bargaining, in Rasmussen, E (Ed), Employment Relationships: Workers Unions and Employers in New Zealand, at 47.
[4] Employment Relations Act 2000, s20-25.
[5] Hon Kate Wilkinson, Minister of Labour, The Employment Relations Work Programme, at 1.
[6] Little, A, Press Release: Engineering Printing and Manufacturing Union http://www.scoop.co.nz/stories/PO1009/S00261/epmu-releases-employment-law-submission.htm, 21 September 2010.
[7] Employment Relations Act 2000, s19.
[8] 2005 Haynes, P., Vowles, J., Boxall, P., ‘Explaining the younger-older worker union density gap: evidence from New Zealand‘, British Journal of Industrial Relations 43(1), 93-116.
[9] Mintrom, Michael. (forthcoming 2011). Contemporary Policy Analysis. New York: Oxford University Press at 173-219.
[10] For discussion of Gender and Race analysis, see Mintrom, Michael. (forthcoming 2011). Contemporary Policy Analysis. New York: Oxford University Press at 280-321.
[11] Harre, Laila, in Rasmussen, Erling, Employment Relationships: Workers, Unions and Employers in New Zealand. 2010.
[12] Conway, Peter, An ”unlucky generation” ? The wages of supermarket workers post-ECA. Labour Market Bulletin, 1999.
[13] Department of Labour, Policy Options on Union Access to Workplaces, 15 May 2009.
[14] Kelly, H Attacks on workers and unions sinister, http://union.org.nz/news/2010/attacks-on-workers-and-unions-sinister-15710, 15 July 2010.
[15] Department of Labour, Policy Options on Union Access to Workplaces, 15 May 2009.
[16] Ibid.
[17]Tait, M, Union Access Plans Need Re-think, http://www.stuff.co.nz/business/small-business/4183990/Union-access-plans-need-re-think-Business-NZ, 30 September 2010.
[18] Department of Labour, Policy Options on Union Access to Workplaces, 15 May 2009.
[19] Hon Kate Wilkinson, Minister of Labour, The Employment Relations Work Programme, at 1.
[20] Harre, Laila, in Rasmussen, Erling, Employment Relationships: Workers, Unions and Employers in New Zealand. 2010 at 37.
[21] Ibid.
[22] Department of Labour, Policy Options on Union Access to Workplaces, 15 May 2009.
[23] Ibid.
[24] Harre, Laila, in Rasmussen, Erling, Employment Relationships: Workers, Unions and Employers in New Zealand. 2010 at 25.
[25] Millar, G. 2009. Research Note: Popcorn Pickets and Brassbands: Young Workers’ Organising in the Cinema Industry 2003-2006 at 108.
[26] Ibid.
[27] Ibid.
[28] 2005 Haynes, P., Vowles, J., Boxall, P., ‘Explaining the younger-older worker union density gap: evidence from New Zealand‘, British Journal of Industrial Relations 43(1), 93-116.
[29] Millar, G. 2009. Research Note: Popcorn Pickets and Brassbands: Young Workers’ Organising in the Cinema Industry 2003-2006 at 115.
[30] Millar, G. 2009. Research Note: Popcorn Pickets and Brassbands: Young Workers’ Organising in the Cinema Industry 2003-2006 at 111.
[31] Email from Grace Millar to Carl Anderson.