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.