Thursday 8 March 2012

The Duty Of Care

The Good Samaritan: When someone is being attacked, or is in need of our help, we all have a duty of care to those afflicted. Whether it's on the road to Jericho or down on the Auckland waterfront, we are never justified in passing by on the other side.

YOUR BEST MATES are being attacked by a gang of thugs – what do you do? Most of us wouldn’t need to think twice. We’d pile on in, fists swinging, to back them up. It’s the most human of responses: defend your friends and protect your loved ones from harm.

What sort of legal system would expressly forbid people from standing up for their mates? What sort of law-maker would try to stop us helping our fellow citizens?

Nobody would do that – right? I mean you hear about cases of mothers being charged with failing to provide their children with “the necessities of life”; or for failing in their “duty of care”. Because that’s a universal duty – isn’t it? To care for each other?

Well, no. It isn’t. Not when it comes to people being attacked by their employers. Not when a Board of Directors is beating up their own staff; stripping them of their livelihoods; impoverishing their families.

If you see that happening, and you try to do something about it, you’ll end up in court.

New Zealand prides itself on being a good international citizen, but when it comes to the rights of working people we are seriously delinquent.

Convention No. 87, Article 8, of the International Labour Organisation (of which New Zealand is a member) clearly states that:

1. In exercising the rights provided for in this Convention workers and employers and their respective organisations, like other persons or organised collectivities, shall respect the law of the land.

2. The law of the land shall not be such as to impair, nor shall it be so applied as to impair, the guarantees provided for in this Convention.

The guarantee provided for is, of course, the right to organise with the intention of  furthering and defending the interests of workers.

How, then, are we to account for Section 86 of New Zealand’s Employment Relations Act (2000) which states:

Participation in a strike or lockout is unlawful if the strike or lockout relates to … a dispute.

It is this section of the Act which prevents workers from taking action to protect and defend other workers – by means of “secondary picketing” and “sympathy strikes”. We have seen this section of the Act in operation at the ports of Tauranga, Wellington and Lyttelton, where workers attempted to prevent the unloading of ships serviced by non-union labour at the Port of Auckland. These men were subsequently forced by the Courts to do violence to their own consciences, and the interests of fellow union members, by obeying their employers’ “lawful” orders to unload the ship.

Interestingly, this is not something we ask citizens to do when their country goes to war. If a person can demonstrate a genuine “conscientious objection” to bearing arms he or she is excused from active service. Strange, then, that when ordered to do something that he or she knows is bound to hurt a fellow worker, citizens are afforded no such opportunity to conscientiously object. On pain of losing their jobs, paying a fine, or even being sent to prison, working people are obliged to put the boot into other working people.

Which brings us back to our earlier question: What sort of legal system, what sort of legislator, requires people to behave in this way? The answer, of course, is a legal system and legislators dedicated to facilitating the accumulation of private wealth. It is Capitalism which tells us that we cannot go to the aid of our mates; and that, when ordered to do so, we must put the boot into our comrades.

Is such a system morally acceptable? I would argue that it is not. Any more than the old “Jim Crow” system which (quite legally) denied African-Americans their basic human rights was acceptable. The laws that kept white Southerners in a position of social and economic dominance were fundamentally immoral, and they were laid low by the direct action of ordinary people who simply refused to obey statutes deliberately framed to oppress them.

It has long been understood by students of democratic theory that the citizen is not obliged to co-operate in his or her own oppression. As Thomas Jefferson put it in the American Declaration of Independence:

[W]hen a long train of [government] abuses and usurpations, pursuing invariably the same object evinces a design to reduce them under absolute despotism, it is their right, it is their duty, to throw off such government, and to provide new guards for their future security.

The train of abuses of New Zealand’s working people has indeed be a long one, and perhaps its most depressing aspect is that when the party ostensibly dedicated to the rights of “labour” had the opportunity, it did not abolish the legal prohibition against sympathy strikes. Through nine long years in government, the New Zealand Labour Party declined to allow even its own voters to come to the aid of their mates.

Even now, in 2012, Labour’s new leader, David Shearer, declares his anxiety not to “take sides” in the Ports of Auckland dispute – not even as members of MUNZ, a trade union affiliated to his own party, are being stripped of their livelihoods. And, in spite of the fact that ILO Convention No. 154 stipulates that:

In order to secure the greatest social advantage of new methods of cargo handling, it shall be national policy to encourage co-operation between employers or their organisations, on the one hand, and workers’ organisations, on the other hand, in improving the efficiency of work in ports, with the participation, as appropriate, of the competent authorities.

Auckland’s Labour Mayor has very publicly elected to “pass by on the other side”.

For the sake of our mates, and our own consciences, the sooner we provide “new guards” for their “future security” the better.

How else can we honour our duty of care?

This posting is exclusive to the Bowalley Road blogsite.


Than said...

Sympathy strikes are immoral and objectionable. They inflict no inconvenience or cost on the employer involved in the dispute. All the costs they inflict are suffered by uninvolved members of the public, which will mostly be other workers.

To use your analogy Chris, if your mate was being attacked in a pub, you wouldn't randomly punch some uninvolved guy next to you. Neither the owners of the Lisa Schulte nor Lyttelton Port of Christchurch (to use the Christchurch examples) own or run PoA. They have no say in the pay or conditions at PoA, so trying to inflict inconvenience on them is both ineffective and (much more importantly) morally wrong.

Anonymous said...

The right to defend ourselves supercedes any national law.

The bosses started the class law and use any weapon at their disposal including the law.

The only moral thing for workers to do is to defy a law made by the ruling class to protect their priviliges.

CD said...


How can you possibly advocate that employees of an employer should have the right to strike or otherwise cause detriment to their employer in support of workers of another employer?

Whilst I respect your argument that a society should not remove the right of freedom of speech, which essentially we are talking about, in no way is it justifiable that a completely unrelated employer should be impacted by their worked in relation to a dispute that has nothing to do with them.

Those workers have every right to take protest action outside their employment commitments. What you are advocating is no different from workers at, for example, Westpac, going on strike or refusing to process branch transactions, in support of workings striking at a port. Yes, the Wellington and Lyttleton port workers may be in the same industry as the striking workers in Auckland, however, they are not employed by the same employer nor are they subject to the same employment agreement.

Pull your head in!

Anonymous said...

Unilaterally sacking workers who argue for having some say in their terms of employment is immoral and objectionable.

That's what's just happened to 292 people.

If you know a better way to redress this violent attack than sympathy strikes Than, it would be nice to hear it.

Brendan McNeill said...

"If you know a better way to redress this violent attack than sympathy strikes Than, it would be nice to hear it."

Yes, realizing that both employer and employee are mutually dependent, that engaging in a 'class war' from either side is mutually distractive. A negotiated settlement where both sides make concessions is better than a war where the biggest looser will be the weakest party before the law, and in this case it's the employee.

These workers have been betrayed by their union who are locked into an ideological world view that may have been applicable a century ago, but has no meaning in todays environment.

There will be people queuing to take these jobs, and the workers who once had them are the biggest losers, no thanks to their union who was supposed to be representing their best interests.

Furthermore, the majority of New Zealanders have no time for these unions or their ideology. They are twice losers, and most of us will be glad to see the back of them.

Hopefully they will all find employment elsewhere, for their sake and for their families. Older and wiser they will be.

Than said...

Well I'd start by not lashing out at people who have done nothing to me.

Stikes at other ports hurt people. People expecting goods out of containers. businesses wanting to carry on production and to keep employing people. People who have done absolutely nothing to workers at PoA and do not deserve to be inconvenienced because of their dispute.

Sympathetic strikes may put some minor pressure on PoA, but this is far outweighed by the negative publicity they cause.

Anonymous said...

In Culture and Society, Raymond Williams described the working class impulse to solidarity - a collective and mutual conception of support grounded in a community. He wrote: "Improvement is sought, not in the opportunity to escape from one's class, or to make a career, but in the general and controlled advance of all."

The middle class cannot comprehend this concept. Even the best impulses of the bourgeoisie are individualist in nature.

Since we live in a society run by and for the middle class, this alien and deeply threatening working class idea of solidarity must be crushed whenever it appears. Consequently it must be painted as "immoral", "objectionable", and it must be ruled illegal by the courts.

Williams argues that the idea of solidarity is a major achievement of working class culture. It still runs strong in our veins. Solidarity Forever!

Anonymous said...

" in no way is it justifiable that a completely unrelated employer should be impacted by their worked in relation to a dispute that has nothing to do with them"

oh how lovely.

so in your ideal little world it will also be illegal for some dude to ship his factory offshore, thus impacting on innocent other businesses and workers

grow up mate.

Anonymous said...

With respect Chris – get over it, to para-phrase Michael Cullen “we won you lost”. The Auckland wharfies were a privileged dinosaur earning 91k for 28 hours work and was never going to be defensible, despite how much spin about the sky falling in. I would have liked to have seen Tauranga wharfies being interviewed to compare the two systems, but the pinko media were trying back a nag. Why defend 300 or so workers at the greater expense of the rest of thousands of Aucklander’s and greater New Zealand; the Port productivity has gone up 25% since they have been on strike! In the words of Fautly Towers “crazy”.
This Victory is even sweeter being in the heartland of Labour JAFFA land and a left leaning council shooting themselves in the foot, over the Ports of Tauranga xenophobia of the being better than theirs under a capitalist employment model. Well done Mike Lee and Len Brown – these two have robbed thousands from hard working Aucklander’s to prop under an underperforming Port for years.

Anonymous said...

" To use your analogy Chris, if your mate was being attacked in a pub, you wouldn't randomly punch some uninvolved guy next to you."

Of course you would not.
A more fair representation of Chris's position is if you punched the person who attacked your mate, and that person fell, bumping into a bystander and spilling his drink.

I spose some of the precious little anti union goody two shoes on this thread would be horrified at that too.

Anonymous said...

The workers are the union.

The port workers struck in order enhance the possibility of negotiation. The port management didn't want to negotiate, effectively. That is totally clear.

MPledger said...

Blogger Brendan said...
These workers have been betrayed by their union who are locked into an ideological world view that may have been applicable a century ago, but has no meaning in todays environment.

The PoA's end goal was to have three stevedoring companies play off each other to depress wages. All the union negotiations was just pufferie to make it appear that the PoA were obeying the law.

The only trouble was the PoA shot themselves in the foot by advertising jobs before they announced they believed negotiations were over. Let's hope the courts cane them and their CEO gets fired.

Than said...

"Of course you would not.
A more fair representation of Chris's position is if you punched the person who attacked your mate, and that person fell, bumping into a bystander and spilling his drink."

That is not a fair representation.

What you are describing is an accidental consequence of the original fight. But a sympathy strike is not an accidental consequence. It is a deliberate, additional action beyond the original strike. It can quite fairly be described as deliberately starting another fight, with an uninvolved person who just happens to know the guy attacking your mate.

Accidential consequences are happening as well; any person whose goods are delayed because of the strike is the metaphorical bystander covered in beer. But a sympathy strike is much more than this. It is starting a second fight with an innocent person.

guerilla surgeon said...

Interesting that the same tired old stereotypes keep cropping up. That the wharfies get paid 90 K a year. With absolutely no evidence for it at all. And that union members somehow get led astray by their nasty leaders. Time after time I hear this from right-wing columnists – not in any union I was in. In fact the last time I took any notice of that sort of thing the members were pushing the executive along to be more militant.

Anonymous said...

'a sympathy strike is... starting a second fight with an innocent person'

Than, what is your industrial experience?

As a participant in several solidarity strikes I can tell you tha they are about supporting your mates come what may.

There may be some collateral damage. That is a factor occasioned by all sorts of behavior in all sorts of everyday life.

Workers have no weight in law courts, no money to do deals with and no friends in very high places.
All we have to lever with is our collective solidarity, which we don't exercise enough these days.

If you are not disposed to assist us in our pursuit of a better life, please stand off to the side, out of our way.

Than said...

I have never been involved in an industrial dispute, which is what I assume you are asking about. For most of the last 12 years I have worked in electronics manufacturing for near the minimum wage as a casual laborer, but in August last year I got a new job (same industry) and am now at close to the median wage.

That "some collateral damage" you so casually dismiss is exactly why a sympathy strike is unethical. They have only a very small effect on the target (PoA management) and a large effect on others... the "collateral damage" amounts to 99% of the consequences. They are a deliberate attempt to inconvenience people not involved in the dispute in the hope that they will put pressure on PoA. They are immoral, ineffective, and (quite rightly) illegal.