Forget the 1970s, Labour’s Fair Pay Agreements will take New Zealand back to the 1890s!

Poacher Turned Gamekeeper? Will Jim Bolger, the one-time master-poacher of worker’s rights, be able to transform himself, over the course of the coming months, into the incorruptible game-keeper of their interests?

“FAIR PAY AGREEMENTS” (FPA) are the final proof that Labour is evolving backwards into the Liberal Party. Predictably, National’s ignorance of its own country’s history has rendered it incapable of placing this latest example of Labour milksoppery into its proper context. Scott Simpson can witter-on all he likes about Jim Bolger (of whom more later) taking New Zealand back to the 1970s. A much more accurate historical invocation would be the 1890s. Or, if we’re being precise, 1894. That was the year the Liberal Government of Richard John Seddon passed the Industrial Conciliation and Arbitration Act (ICAA) – the true inspiration for Iain Lees-Galloway’s FPAs.

The ICCA empowered the state to bring employers and workers together for the purpose of establishing minimum rates-of-pay and working conditions across whole industries and occupations. If these could not be arrived at by negotiation, then binding arbitration was available from a special Arbitration Court. Crucially, unions and employer associations who submitted their disputes to the Court were forbidden from engaging in strikes or lockouts. These “awards” of the Arbitration Court spelled out the minimum standards workers could expect and prevented the employers’ competitors from initiating a ‘race to the bottom’ on wages and conditions.

The parallels with Labour’s proposed FPAs are obvious. What has yet to be established, however, is whether or not the advisory group headed by Bolger will incorporate a twenty-first century equivalent of the Arbitration Court into the new FPA machinery. Without such a mechanism, the negotiation of anything resembling a useful FPA will be next-to-impossible. Strikes and lockouts have already been ruled out of the process, so in the absence of a binding arbitration mechanism, negotiations between employers and unions could be prolonged indefinitely. Or, at the very least, until the National Party is re-elected and the legislation enabling FPAs repealed.

This will be the true test of whether Bolger’s ‘road to Damascus’ conversion: from hard-line anti-union promoter of the Employment Contract’s Act, to conscience-stricken repudiator of neoliberalism and all its works; is genuine. With National’s workplace relations spokesperson, Scott Simpson, on record as promising to repeal all FPA-related legislation, any hopes Labour may have entertained of Bolger inspiring an outbreak of constructive bi-partisanship have already been dashed.

The best the Left can hope for now is that the one-time master-poacher of worker’s rights will, over the course of the coming months, transform himself into the incorruptible game-keeper of their interests.

This essay was originally posted on The Daily Blog of Wednesday, 6 June 2018.

The Mouths of Sauron

The Mouth of Sauron? Attorney-General, Chris Finlayson, has very unwisely stepped from the sidelines of the dispute between Sir Peter Jackson and NZ Actors Equity to voice his support for the legal claims of Hollywood's Dark Lords.

"UNION" – it’s such a small word, and yet a person’s reaction to it can tell you so much about them. Indeed, to my mind there is no better test of character than the choices people make when confronted with an industrial dispute. The current stoush between the producers of The Hobbit and the union representing New Zealand’s actors has proved especially revealing in this regard.

Sir Peter Jackson’s response has been particularly disappointing. To most New Zealanders, Sir Peter is the epitome of Kiwi can-do-ism. He’s the man who did what no one believed could be done in the time-frame no one believed it could be done in. His hugely successful Lord of the Rings trilogy not only brought Tolkien’s magical prose to life on the cinema screen, it also presented New Zealand’s wild and unspoiled beauty to an astonished world.

So audacious was Sir Peter’s LOTR project that Kiwi actors, extras and technicians fell over themselves to help him. From the point of view of this country’s creative community (if not the trilogy’s hard-nosed Hollywood backers) LOTR was a demonstration of what New Zealanders could do. Sir Peter became the maestro of one vast, collective labour of love.

It made his name, and it made him a very considerable fortune – which none of us begrudged him. His success was our success.

And that’s what makes his response to NZ Actors Equity’s request for dialogue so very, very disappointing. Instead of siding with the people who helped to make him the movie mogul he is today, he’s sided with the Hollywood bosses.

Just imagine how much more New Zealanders would have loved and admired him if he had said to the industry big-wigs: "Look, guys, we were willing to under-sell ourselves once – just to show you what we could do. But now that we Kiwis have proved we’re the equal of film-makers anywhere, it’s time to pay us accordingly."

Sadly, what he actually did when push came to shove was become a union-buster.

The response has been fascinating.

The Attorney-General, Chris Finlayson, has weighed in on Hollywood’s behalf by asserting that any negotiations with "Independent Contractors" would constitute price-fixing under s30 of the Commerce Act.

This is extraordinary, but Mr Finlayson’s price-fixing argument is one with which the American trade unions would be all-too-familiar – going all the way back to the Sherman Act of 1890.

The Sherman Act was originally intended to combat the anti-competitive behaviour of monopolistic big-business "trusts" like Standard Oil, but was seized upon by anti-union employers as a way of preventing unions (which they characterised as "cartels" of workers) from acting as a "restraint of trade" by collectively "fixing" the price of their labour.

Section 30 of the Commerce Act outlaws any contract which sets out to, "or is likely to have the effect of fixing, controlling, or maintaining, or providing for the fixing, controlling, or maintaining, of the price for goods or services". So, any attempt by a group of contractors (i.e. actors) to collectively establish a common price for their services would indeed be illegal.

Needless to say, Sir Peter and his Holywood mates have gone to considerable lengths to ensure that everybody who wishes to participate in their productions does so as an "Independent Contractor" – not as an employee.

There is, of course, nothing to prevent Sir Peter from hiring actors, extras and technicians as "fixed-term employees". Nothing, that is, except the obligation which he would then have to recognise their union, bargain with it in good faith, and afford its members all the rights enjoyed by other New Zealand workers.

The Attorney-General knows this, of course, but has entered the fray on the Employers’ side anyway. Unwisely, I would say, in light of the fact that since the mid-1980s Cabinet Ministers have sensibly elected to remain "on the sidelines" of industrial disputes to which the Crown is not a party.

But Sir Peter and Mr Finlayson are not the only people whose behaviour has given us cause for consternation over the past few days.

What should we make of the well-known media personality and (of all people) the film producer (!) who rolled up to the NZ Actors Equity union-meeting in Grey Lynn expecting to be admitted? How would these gentlemen react, I wonder, if Equity’s Frances Walsh appeared outside their production meetings expecting to join their discussions?

It’s sad really. The neoliberal model of industrial relations has been in place for so long that a whole generation has grown up without the faintest knowledge of what it means to stand together in unity, or to express solidarity with a group of workers under attack.

Since we’ve been discussing Tolkein’s works, let me close with a passage from Lord of the Rings. It concerns the messenger of the Dark Lord, Sauron.

Tolkien describes him thus:

The rider was robed all in black, and black was his lofty helm; yet this was no Ringwraith but a living man. The Lieutenant of the Tower of Barad-dur he was, and his name is remembered in no tale; for he himself had forgotten it, and he said: ‘I am the Mouth of Sauron.’

It is to be hoped that all the mouthpieces of Neoliberalism: all the men and women who long ago forgot what it means to stand in solidarity with their fellow New Zealanders; all the "industry people" who have spent the last few days doing everything they could to undermine the unity of NZ Actors Equity; suffer the same fate as Sauron’s evil messenger.

Grievance Mode

Kate Wilkinson, Minister of Labour.

KATE WILKINSON’S cautious dismantling of the Employment Relations Act continues. Her latest move, a review of the Personal Grievance (PG) provisions of the Act, would seem to confirm the Council of Trade Unions’ suspicions that the National-led Government intends to implement its employer-driven agenda incrementally – rather than with an Employment Contracts Act (ECA) style "king-hit".

It’s a short-sighted policy. Wilkinson and the employers’ representatives both appear to have forgotten the crucial role which universal PG mediation played in bedding the ECA in and making it work.

In most workplaces the tone of industrial relations is set by just two or three employees. Back in 1991, the ECA reassured these – the most assertive and self-reliant members of the workforce – that PG mediation would always be there to protect them against unjustified dismissal. If it hadn’t, they almost certainly would’ve stuck with the unions. And to give this union-based "insurance" teeth, they’d have made damn sure all their workmates did too.

The universal availability of PG mediation thus played a vital role in the de-unionisation of the New Zealand workforce. First, it persuaded the more individualistic and self-confident workers that they didn’t need to join a union to be protected against an incompetent and/or vindictive boss – thereby robbing the union movement of its most effective recruiters. Second, it gave employers a powerful financial incentive to behave decently towards their employees – thereby denying the unions’ the steady stream of horror stories required to keep union members paying their dues. As Jock Barnes, the militant hero/villain of the 1951 Waterfront Dispute, was fond of saying: "The boss is always the worker’s greatest organiser."

Viewed objectively, the employers’ demands to weaken the legislative guarantees surrounding PG mediation would appear to be self-defeating. Perhaps Bill Birch, the author of the ECA, should take Alastair Thompson of the Northern Employers and Manufacturers Association, and Business New Zealand’s Phil O’Rielly to one side and remind them why clauses mandating a 90-day probationary period for new employees, and the elimination of PG mediation, were never included in the original legislation.

After all, it’s not as if Birch was under any pressure from the trade union movement to step away from such extreme measures. While the legislation was still making its way through Parliament in the summer of 1991, the then President of the CTU, Ken Douglas, made it crystal clear to New Zealand’s trade unionists that he would neither counsel, nor lead, any form of mass struggle against the Bill’s passage.

This supine response from the country’s most prominent communist caught the National Government off-balance. They’d anticipated a major stoush over the bill and had been ready to offer concessions. As it turned out, they got everything they wanted – and could have got a lot more. But, as explained above, there were at least two very good reasons for not pushing their luck.

That the CEO of Business New Zealand, twenty years after the passage of the ECA, feels able to assert, without fear of serious professional embarrassment, that the elimination of what few legal protections remain for New Zealand’s workers will lead to an improvement in the country’s overall economic performance – is deeply troubling.

It suggests the business community has learned absolutely nothing from the experience of the ECA, and that many still believe that boosting profitability by slashing labour costs (especially the costs of hiring and firing) is the only way to go.

Where are the calls for more spending on research and development? For upgrading plant and equipment? For upskilling the workforce? They’re there. You’ll hear them in the employers’ submissions to parliamentary select committees and special taskforces. They’re in nearly all of Business NZ’s glossy reports. But, where you won’t hear them is at cocktail parties attended by Ms Wilkinson.

There, the talk is all about how dishonest and litigious their employees have become. How unfair it is that the law allows workers to punish poor employment practice with significant financial penalties. There, the Minister will be informed (anecdotally) how crucial it is (for New Zealand’s economic recovery) that those legal powers be taken from them.

That’s the employers’ preferred solution to this country’s sluggish productivity growth.

The employers’ attack on PG mediation also suggests something else – something much more disturbing than an inability to learn from their previous mistakes. It suggests that within the business community there exists a group of people perfectly willing, in the name of private and personal gain, to deprive their fellow citizens of their rights.

Viewed from a psychological perspective, this willingness to strip human-beings of their legal protections indicates, at best, an authoritarian and exploitative character-structure. At worst, it betokens an individual utterly incapable of experiencing empathy. Such people are called sociopaths: individuals who relate to other human-beings in exclusively instrumental terms – treating them as mere means to an end. In the eyes of these sociopathic employers, a worker is just something to be used up and then thrown away.

Does the National Party really want to become the political enabler for this ugly species of social pyschopathology? Is this the legacy John Key is content to leave behind him? And does the Minister of Labour actually believe this is the best way to boost New Zealand’s productivity?

If that is her conviction, then she’s badly advised. New Zealand’s labour productivity growth is broadly comparable with the growth levels of other mature economies in the OECD. Placed alongside the productivity statistics of countries like Sweden and France our own results simply reinforce the inherent difficulties in dramatically lifting productivity levels in already highly productive economies.

Short-term gains can certainly be made by making workers toil harder and longer for less, but an economic regime based on exerting continuous downward pressure on wages and conditions is unlikely to contribute positively to the present government’s stated objective of bringing New Zealand’s pay-rates into parity with Australia’s by 2025.

Besides, New Zealand already has one of the hardest-working workforces in the OECD. We are also blessed with a regulatory regime that, by international standards, is extraordinarily business-friendly.

What we are not blessed with, however, is a well-educated, dynamic and self-confident business class. If we had one, our Minister of Labour would not find herself constantly assailed by professionally inadequate employers hell-bent on freeing themselves from the costs of their own mismanagement.

This essay was originally published in The Independent of Thursday, 11 March 2010.

Remembering 1951

Police confront Watersider's protest march. Wellington, 1951.

This curious little posting over at The Standard caught my eye. In it "Irish Bill" rather piously informs his readers that the infamous Waterfront Lockout (which began on 27 February 1951) and even the Great Strike of 1913, are events which he "unlike other commentators on the Left" prefers to "commemorate" rather than "celebrate" because "in both cases working people suffered greatly for little gain".

Sadly, this rather sniffy attitude towards the two great industrial struggles of New Zealand history is all too typical of a certain kind of Labour Party member/supporter. To me, it betokens a disdainful attitude towards working-class independence in general, and militant trade unionism in particular. (The very best exponent of the mindset, even back when he was still a member of the NZLP, was Dr Michael Bassett, whose book, Confrontation ‘51 positively reeks of middle class superciliousness.)

Needless to say, I consider Irish Bill’s comments regarding the Lockout to be dead wrong. As Jock Barnes, himself, said in his foreword to Dick Scott’s celebrated 151 Days:

"As surely as night follows day, an offensive by the Holland Government against the workers of New Zealand was inevitable. And years of inspired press propaganda had made it clear that the New Zealand Waterside Workers Union would be objective number one. Its record of progressive thought and militant policy, not only for its own members but for the working class as a whole, had made that certain ….. But the intended blitzkrieg developed into a long and costly offensive. While thousands of workers, their wives and children, suffered dearly, money power took some mighty blows. It is still licking its wounds. The boss is always the worker’s greatest organiser, and [in 1951] he educated tens of thousands of workers in the fundamentals of capitalist economy. From that education the people will inevitably collect a rich dividend ….. The working class can thank those who fought [in 1951] for the conditions they still enjoy. Every day suffered by a miner’s wife and children, every further day that a freezing worker, watersider or seaman stood and fought back, reduced the chances of a general offensive."

In my book No Left Turn, I interogate Barnes's claims, but from a very different perspective to that of Irish Bill’s:

"Was [Barnes] right? Were the people of New Zealand, in ways which, for more than five decades, they have been actively discouraged from investigating, the genuine beneficiaries of the bitter industrial struggle that racked their little nation from 15 February until 15 July 1951? A swift survey of the principal historical judges of this event: Keith Sinclair, Bill Sutch, Michael Bassett, Bert Roth and James Belich; would suggest not. As far as New Zealand historiography is concerned "1951" was, at best, an heroic – if ultimately futile – reprise of 1913; further proof that the trade unions could not "take on the State and win". At worst, it was simply an avoidable and unmitigated disaster. But, as we shall see, 1951 marked not a sudden and irrational recrudescence of the insurrectionist impulses of 1908-1913, but the ruthless reimposition of the corporatist compromise between capital, labour and the state that was first broached in the depths of the Great Depression, and then consolidated through daily application during the Second World War. Adapting the union movement to the political and economic realities of Corporatism emerged as the prime political mission of the men who have emerged as the villains of the 1951 tragedy: Walsh and Young, Fraser and Nash. Their unacknowledged and unappreciated role? To keep the milk of Labour’s social and economic reforms, by separating out – and ruthlessly sacrificing – the cream of the labour movement."

For the next forty years, from 1951 to 1991, working people in New Zealand enjoyed the protection of the unqualified preference clause and national awards. Why? Because Sid Holland was really the worker’s friend? No. It was because Jock Barnes and the 20,000 trade unionists who held out against the Emergency Regulations for 151 days, taught the National Party a bitter lesson in the dangers of attempting to crush working class organisations by force majeure; just as Fintan Patrick Walsh and the moderate leaders of the Federation of Labour demonstrated to Holland and his successors the wisdom of maintaining a corporatist approach to industrial relations.

In this respect "1951" was not a defeat but a victory for the NZ working class. Their greatest defeat, in 1991, was visited upon them not at the hands of the traditional enemy, the National Party (although it did its best!) but from the hands of its own trade union leaders. Tragically, the CTU was led by men and women who, like Irish Bill, saw only defeat and failure in the great moments of working class resistance, and who forgot that, so long as you’re willing to fight, you can never truly lose. Because the example you provide for the generations to come of resistance to injustice, and self-sacrifice in a noble cause, is always in and of itself a triumph of the human spirit.