In March this year Service and Food Workers Union National Secretary, John Ryall stated that unions would be taking more and more employment cases to Court following the latest in a string of successful cases for low-paid employees. He went on to say that litigation was now preferable to collective bargaining, which he described as “hopeless” and that the preferred strategy, which the SFWU started about five years ago, is going to the courts and arguing for minimum wage rights and human rights, in terms of enforcing the Minimum Wage Act and Equal Pay Act.”
John Ryall’s remarks were endorsed by CTU president Helen Kelly who said the CTU was also concentrating on strategic litigation.”We have to rely on the minimum code – Minimum Wage, Holidays Act, Equal Pay Act – to get any sort of justice”, Kelly stated.
It is true that workers have recently won several strategic union backed cases. And the private prosecutions the CTU has taken in forestry – when the relevant state bodies have not been prepared to make a stand for workers’ safety – are absolutely commendable. They have helped pursue justice for workers’ families, and have highlighted the dangerous conditions in the industry. However making gains by way of litigation raises a number of concerns for the future of the union movement as a whole and its effectiveness long term. This article aims to look at some of the cases taken and will briefly explore some of the questions which arise.
In the first of these cases, Idea Services v Dickson, the Court, noting constraints on workers during sleepovers, the nature and extent of their responsibilities, and the extent to which the employer benefited from their presence in the workplace, decided that every hour of a sleepover was work which should be paid at least minimum wage. Prior to this decision workers had been paid only an allowance for such work, at rates far below minimum wage. The sleepover case is significant has seen an additional $150,000 paid to workers although it is worth noting that those workers did not see the full benefit of the decision in terms of back wages owed. Subsequent legislation allowed a staged progression towards full compliance with the Minimum Wage Act so that only a portion of back wages were payable to workers covered by the settlement.
In 2012 the Court of Appeal decided a Services and Food Workers Union supported test case taken by Care worker Kristin Bartlett who argued successfully that her $14.46 hourly wage was less than would be paid to men with the same, or substantially similar, skills and was therefore a breach of the Equal Pay Act. The decision has wide ramifications for female dominated industries such as cleaners and nurses although the equal pay claim itself has not yet been decided.
Then in 2014, following a case taken to the Employment Relations by the Public Service Association for paid travel time and improved working conditions for Home Care Workers, the Ministry of Health offered a settlement. Until then Home Care Workers were not paid for travel between work assignments and settlement was reached on the basis that in light of the principles outlined in the sleep over case the Employment Relations Authority would likely find that such travel was work and therefore should be paid.
Finally in March this year the Service and Food Workers Union won a case against the Ministry of Health and Capital & Coast District Health Board over the pay of one of its workers, Janet Lowe.
The DHB had argued that Ms Lowe, who provided respite care for the disabled and elderly, was not employed in her role was therefore not covered by the Minimum Wage Act. Accordingly it paid only a “subsidy” of $75 for a 24-hour shift, putting her pay at approximately $3 an hour. The Court’s ruling means that Ms Lowe and 35,000 other respite carers are now eligible for the minimum wage of $14.75, holiday pay and back pay for six years.
Obviously these successes should be celebrated. However, we should not forget that such favourable Court rulings can be nullified by subsequent legislation. By way of example the Bryson case, decided in the worker’s favour, was overridden by the subsequent Hobbit legislation which deprived a whole class of workers of the protection of employment law.
Notwithstanding the success of the cases above the union movement’s acknowledged reliance on litigation reflects the real weakness of the workers’ movement and the fact that as the decimation of union rights and participation since 1991 has severely reduced workers’ ability and appetite for industrial action.
The strategy is clearly one of defence against the sustained employers’ offensive of the last 30 years however without workers’ active and collective participation in struggle the workers’ movement cannot begin to rebuild. While a focus on litigation may be the best alternative in current circumstances, abandoning strike action risks undermining the capacity of workers to take such action in the future. Excessive reliance on litigation will deliver justice as determined from above by Judges and government but will not build a strong workers’ movement and the fact that independent workers’ real power lies in our capacity to withdraw our labour, to strike, should not be forgotten. The latest round of employer attacks needs a furious response which the current strategy of legalism alone will not deliver. Unions should consider deploying resources to enable participation in such a response, for example by the establishment of fighting funds.