Tuesday 25 June 2013

The Right To Say - "No."

ALL OUR HUMAN RIGHTS derive from the power to say just one word: “No.” If we cannot speak that one word – and be heeded – then we have no rights.
This right to refuse does not give us licence to do exactly as we please; but those to whom we entrust the authority to limit the citizen’s right to refuse must always be able to justify its use.
Jami-Lee Ross, the National Party MP for Botany, will soon introduce a bill to Parliament limiting the right of workers to say “No” to their bosses. His innocuous-sounding Employment Relations  (Continuity of Labour) Amendment bill, by authorising employers to recruit temporary staff to perform the duties of striking or locked-out employees, undermines, fundamentally, the latter’s right to refuse to work for the pay offered and under the conditions proposed.
Withdrawing their labour, as a means of inducing their employer to make a better offer on wages and conditions, is the only truly effective negotiating tactic available to employees.
Not that “going on strike” is an easy decision to make. Obviously, while a strike is in progress the workers involved will not be paid. The impact on the strikers’ families is readily imagined.
Nor are strikes easy on employers. While its workforce refuses to perform their normal duties, no business can function effectively.
This is, of course, the point. By imposing a financial penalty on both sides, the strike provides a strong incentive for the contending parties to resume their seats at the negotiating table.
One’s opinion on the rights and wrongs of going on strike is one of the great differentiators of politics. This is because it goes to the heart of how Left and Right define the legitimate limits of the individual’s rights. More simply: in which circumstances are we entitled – both individually and collectively – to say “No.”
It’s a paradoxical question. In order for the individual employee’s right of refusal to have any practical effect, it must first be joined with every other employee’s right to say “No.”
One worker, alone, is seldom able to negotiate with his or her employer from a position of strength. “If you don’t like the wages and conditions on offer here,” the boss will say, “there’s the door!” You may, of course, be lucky and possess a skill in short supply and which the business cannot do without. If so, then the boss will do all he or she can to persuade you to say “Yes.”
But, if the work on offer is easily mastered, the individual applicant’s position is hopeless. Take the job, or remain unemployed, becomes the choice. And if that is your choice, then be ready for the Ministry of Social Development to withdraw any assistance you may have been receiving as a “Jobseeker”.
Now the choice becomes: take the job, or starve. And that is no choice at all.
It is only through a union that the individual employee’s power to say “No.” can be realised. In the words of Ralph Chaplin’s celebrated union anthem, Solidarity Forever:
When the union’s inspiration through the workers’ blood shall run
There can be no power greater anywhere beneath the sun;
Yet what force on earth is weaker than the feeble strength of one?
But the union makes us strong.
To conservative politicians like Jami-Lee Ross, however, this strategy of preserving the individual’s rights by aggregating them into a single unit of advocacy and assertion is anathema. Rather than interpret the union’s collective voice positively – as a way of amplifying each member’s individual “No!” – the Right hears only a collective roar drowning out the minority’s refusal to be aggregated.
But that is not all the Right hears. In the collective voicing of workers’ demands, the conservative detects a baleful bass note of systemic danger. The winning of individual rights by means of aggregation may begin in the workplace, but what guarantee do the defenders of private enterprise have that it will stay there? Once individual citizens work out that they’re much more likely to secure the good things of life by working together, than they are by struggling alone, the foundations of capitalism itself begin to crack and crumble.
And so, Jami-Lee Ross proposes a measure that will render every union in the country powerless. Even if 100 percent of the employees on a worksite vote to strike, their employer will, nevertheless, be empowered to over-rule their unanimous shout of “No!” – by hiring temporary replacement workers.
If Mr Ross’s private member’s bill becomes law, then the only recourse available to those workers who still insist upon their right to say “No!” will be to physically prevent these replacement workers; these strike-breakers; these scabs – from entering the workplace.
Then, the only justification for Mr Ross’s newly minted authority will be the justification of force.
This essay was originally published in The Press of Tuesday, 25 June 2013.


Frank said...

No wonder the Employers And Manufacturers Association are cool on this Bill. They understand that something like Ross's Bill will most likely end up radicalising workers.

If the far left wanted something provocative to draw people out of thier complacency, they couldn't have designed something better.

My bet is that this Bill will be voted down.

But Ross will have achieved his goal; self promotion.

Brendan McNeill said...


As you point out, employers and employees are mutually dependent. it is in both their interests to reach settlements on wages and conditions.

Is it only employees who have the right to say "NO"?

Does an employer not have the same right?

Unions have their place, but organised bullying of employers surely cannot be a legitimate function. Both employers and employees operate in the same market. Employers cannot 'demand' that their customers pay over and above market rates for their goods and services, how then can you justify employees being paid over and above market rates for their services?

Your view of the world presupposes that employers are taking excessive profits out of their business at the expense of employees. My commercial experience tells me that is rarely the case.

If it were, employees could move quickly to another employer that is paying better rates. Alternatively competitors would drive down the cost of their goods and services, and squeeze the 'excessive margins' out of the first employers business.

Most employers are 'price takers' not price setters. The markets they operate in determine the value of their goods and services. Likewise, this same market determines the amount that can be reasonably paid to employees and still deliver a fair return to the employer for risking his capital.

There is no magic here as anyone like myself who has set up and run their own business, and employed staff can attest. Ultimately despite what you suggest, no one is held captive to an employer. Just ask the tens of thousands of workers who have migrated to Australia in search of better wages and conditions, some of whom I understand are now returning.

Anonymous said...

Chris -
Would this include the "right" to say NO to WiNZ sending me or others to "designated doctors" of their choice, who they trained, who are known to decide in their favour, when it comes to assessments and second opinions on my health, and my "capacity" to be able to work?

I have heard some nasty and worrying stories, and I understand they also want to bring in UK style (that is ATOS for DWP, who caused 1,100 casualties due to early deaths, incl. suicide in 2011 alone) assessments here, MSD and WINZ that is!

Do you really think we have a right to say NO? If so, how are we going to survive if they cut our benefits off?

Yeah, ok with that Jami Lee Ross bill, but what about other stuff, we really have no rights left anymore, apart from choosing which consumer goods to buy, which bags of chips and that sort of things. NZ a "free" country? Hah, I cannot believe it, year right, bring on the TUI Board!

Anonymous said...

Brendan - workers bullying employers? When did you last see and follow an industrial relations issue?

I am sorry, that is so far fetched, NZ is a paradise for most employers, even the lazy and useless ones could and should do well here, the employers that is.

Low taxes, easy legal frame work, desperate workers, low wages, low this and the other, but are they ever satisfied?

No some want sweat shops like in South East Asia, because that is the only way they can "manage". They rule by fear and intimidation and manipulation, not by skill, that is too many employers in NZ!

Anonymous said...

" Employers cannot 'demand' that their customers pay over and above market rates for their goods and services, "

Sheer naiveté, they have numerous ways of making sure they can do exactly that.

"employees could move quickly to another employer that is paying better rates"

Don't be silly, this only applies to people with skills in short supply.

We should try to remember that the economy is not just for making some people rich, but for satisfying the needs of everyone. Otherwise there is no particular incentive to take a proper and legal part in it. This Bill would go a long way towards ensuring that

Richard Christie said...

Does an employer not have the same right?

That's rather disingenuous Brendon. What you miss in Chris's essay is that these choices are not the same in pracice. The Bill proposes that an employer's right to say no will be able to be exercised with impunity whereas the employee's choice will lead to serious detrimental consequences.

Chris Trotter said...

To: Anonymous@11.59

Of course you do! More so than anyone. When a person's survival is on the line, the ability to say "No." to those supplying the means of survival is crucial.

Beneficiaries need a strong union and a genuinely independent appeal authority to secure their rights against bureaucratic tyranny.

Brendan McNeill said...

A few reflections upon comments that have been made on my reply to Chris's post.

Anon 12:03- “ workers bullying employers? When did you last see and follow an industrial relations issue?”

As an employer I have followed several, particularly ‘unjust dismissal’ cases, for example where a bus driver recently told her boss to ‘stick his job where the sun don’t shine’ when he admonished her for substandard performance. He took her comments to be a resignation, and then was fined at the employment court for not reinstating her.

This is just one example of literally dozens of questionable rulings that have gone against employers I could name.

I have never met a 'lazy business owner' and I have engaged with hundreds in my working life. Why? Because they care about their business, and know how hard it is to be successful.

I’m not sure where you get your stereotypes, but I suspect not from life experience.

To Anon 6:08. Please explain to me how as a business person and employer I can demand that my customers pay more than market rates for my goods and services if there are ‘numerous ways’ as you suggest. It’s easy to make assertions like that, but I suspect its impossible to substantiate them.

And Richard, my personal view is that the State has no role in employment relations other than health and safety in the workplace. Both parties are mutually dependent upon each other, and as adults they don’t need a paternalistic State taking sides in disputes one way or the other.

Employees should be free to collectivise if they wish, Employers should be free to dismiss them if they choose. Employers are not insulated from the insecurity of a market economy, neither are their suppliers or their customers, and neither should employees.

Brendan W said...

The problems with scabs

1) You have to find them
2) Temp workers have no job security. So they are highly likely to be looking for work themselves. They also have less loyalty because this is only a temp job.
3)Training and job familiarization. This takes time. A worker will be slower on their first day at work. They need to be supervised by those. In 1950's port work was mostly manual labour which required simple training. Today they require training on how to use craines etc which takes time.
4) If you choose to bring in an outside contractor then you most likely will have to pay extra for this compared to employing your own workers.

I'm not saying it can not be done, but bringing in temps is expensive and troublesome.

David said...

I heard Ross on National Radio last night saying workers will still have the right to strike and can strike for as long as they like. And customers of businesses will not find the supply of product interrupted. I guess if you put it like that it's a win/win situation (Ha Ha)

Mark said...

Isn't this amendment just restoring the law to it's pre-2000 situation? None of this is new.

Anonymous said...

Brendan, you say unions have a place but you quite clearly support union busting.

I remember you saying on this blog perhaps a year ago that workers collectively organising to drive up the price of labour is unfair. This is the essence of organised labour - that's why it's called 'organised labour'.

It seems your position is still the same in all but words.

Richard Christie said...

Brendan, you continue to argue under the misapprehension that the playing field for industrial bargaining is level for both employees and employers.
It isn't.
The current (historically) high unemployment rate is structural. It has been intentionally created and perpetuated by almost 30 years of neoliberal economic policy. It is the primary means the bargaining leverage of employees is skewered.
As for the State "taking sides", I won't indulge that particular straw man.

Brendan McNeill said...

Richard, you said:

"The current (historically) high unemployment rate is structural. It has been intentionally created and perpetuated by almost 30 years of neoliberal economic policy."

Fact: unemployment is the lowest it has been for three years:


You need to ask yourself the question 'what Government has anything to gain electorally by increasing or sustaining high unemployment?' The rational answer is 'no government'; the reasons should be obvious to anyone.

There is no conspiracy theory to keep the workers oppressed and hungry.

The issue for everyone, employer and employee alike is skills, productivity and access to markets. Up skill, make yourself useful and you will never be short of employment.

There will always be 3%+ who are frankly unemployable for a variety of reasons. Our current rates at around 6.2% is probably as close to full employment you might reasonably hope for in any market economy.

When you compare this with the USA at around 10% or Europe that is up to 40% in some countries, it's an outstanding result, and I'm no apologist for this Government.

Anonymous said...

More than market rates? Easy Brendan, obviously you don't pay much attention at all. Monopoly. Collusion to form a pseudo monopoly and there's been a couple of court cases about that as I remember. Pressuring people to buy expensive and meaningless guarantees? I think you're being disingenuous again. New Zealanders for instance paid far more than proper market rates for books for years because of cute wee sweetheart deal that New Zealand booksellers had with publishers which stopped us importing cheaper American versions.

Richard Christie said...

Brendan, please spare me the conspiracy theory rhetoric.
OK, if I yield to your three year period as representative of the ambit of "historically" - on second thoughts, not.

The Government could create conditions for full employment overnight if it chose to. This would come at changes to other economic parameters, for example money supply, core interest rates and inflation. The point is that current policy places more import on certain parameters such as inflation rates than it does on employment figures, in addition, unemployment rates over 2 or 3 percent are necessary to artificially skew the labour market toward a position of false "competition" for labour, essentially to drive down labour costs. Do you think the trend in our relative average wages vs those of Australia's over the past 25 years are an aberration? The wage earner has had to compete with third world wage rates whilst rising CEO salaries are constantly justified by comparison with first world rates. Meanwhile our society becomes increasingly polarised in terms of share of its wealth.

I might even support your approach to labour relations if the negotiating field was level, but it isn't. I invite you to re-read Chris's essay for some of the reasons why.

jh said...

what about the right of workers to say no to more migrants = foreign workers?
The Labour did that without any mandate.

jh said...

I would say an unmandated change in immigration policy under labour is 10x more insidious than restricting people who can hold a foot on an economic jugular vein from striking.

DeepRed said...

"If Mr Ross’s private member’s bill becomes law, then the only recourse available to those workers who still insist upon their right to say “No!” will be to physically prevent these replacement workers; these strike-breakers; these scabs – from entering the workplace."

The Synovate dispute a few years back goes to show how easily a lockout can be inverted - and it got positive results for all in the end. The Indians especially have mastered the art of it - they call it a 'gherao'.