The employment relations‟ framework in New Zealand emphasizes principles of fair process through the practice of good faith, freedom of association, the promotion of collective bargaining and the protection of the integrity of individual choice (ERA, s. 3). This is an enabling framework that recognises and enshrines the rights of individuals to determine their life path, previously referred to in this thesis as third way “subsidiarity”. Labour MP, Pete Hodgson, captured the spirit of the Labour Party‟s industrial relations policy prior to the 1999 election: “It is an investment model rather than a deregulatory model. It is a model which actively promotes partnerships throughout the economy. It combines enterprise with equity” (1999). Continuity of employment legislation also
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demonstrates the new vision of “enterprise with equity”, with its combination of minimum standards and rights to freedom of choice. The focus of this section is the risk of disadvantage for contract workers in the domain of workplace rights in the new social democracy.
6.2.1
Negotiating an alternative arrangement
Continuity of Employment law aimed to eliminate the disadvantage which arose with the automatic termination of employment agreements at the sale, transfer or contracting out of a business. By creating an entitlement for workers to elect to transfer it achieved this goal because a change of contract would no longer “a priori lead to the cessation of employment contracts for employees” (Minimum Standards Review, 2001, p. 21). However, it fell short of achieving the vision of a new minimum standard that would protect all the specified contract workers. The reason for this can be traced back to the goal of the ERA as an “investment model” that promoted partnerships and enterprise. Employment would be continuous as long as workers elected to transfer. However, parties could also freely negotiate alternative arrangements at the point of the transfer of a business. The law, therefore, would not guarantee continuity. Within the regulated freedoms of the ERA the protections of the new minimum standard could be undermined by bad faith behaviour in either the process or implementation of the transfer. Further, the adequacy of information and rights to engagement could curtail the capability of workers to effectively access their rights.
The centrepiece of the ERA is the duty of good faith (Mazengarb's Employment Law (NZ), 2009a) and with it came an expectation that poor behaviour could be modified (Haworth et al., 2009). However, the ERA falls short of ensuring compliance with these ideals. Collins refers to a modern third way emphasis on “instrumental” rather than “distributive” regulation saying,
the rights are not accorded to workers out of respect for basic values or to ensure compliance with ideal standards of fairness and justice. Instead, the legal rights are
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justified primarily because it is believed they will contribute to the enhancement of efficient business (2001, p. 302).
Good faith is about good process and process, the Employment Court noted, is the “practical manifestation of „the inherent inequality of bargaining power in employment relationships‟”13. Continuity of Employment law preserves the integrity of individual choice by enabling workers to choose the outcome of a transfer in a good faith bargaining process that is mediated less by regulation than by the market. The inequality of bargaining power is exposed during this process and so, as Anderson pointed out in 2007, the most vulnerable workers need more effective protection than is afforded by the current law (p. 12).
The vulnerability of workers in the current regime is illustrated through the conversations with commercial cleaners. These workers are given a choice in law between staying with their current company and moving to the new company. Ivan chose to transfer to the new company because he was told he would be looked after, while others chose to stay with their employer because they were offered 45 cents more per hour. In the language of the capability theory, there is no intrinsic value in this kind of freedom (Clark, 2005, p. 1343). Well-being for Ivan is neither the existence of choice nor the presence of entitlements but rather it is dependent upon his capability to achieve a particular functioning (of employment security). The desired result of ongoing employment on the same terms and conditions was unavailable to Ivan, or at least it was not available in the presenting circumstances. The freedom to negotiate alternative arrangements is a “risky freedom” (Beck, 2000); the “„freedom‟ of someone who is compelled to make decisions without being aware of their consequences” (Beck, 1999, p. 78); freedom without the requisite resource for it to be effectively realised.
The story of Ivan‟s choice also illustrates the extent to which business can benefit from decisions being made at the level of the workplace. Ivan did not challenge his employer. He said: “I just can‟t tell them that”, “I just roll over” - and consequently his hours were cut. Ivan symbolises the entrepreneur of governmentality, who must shape his own life
13
New Zealand Amalgamated Engineering Printing & Manufacturing Union Inc v Carter Holt Harvey Ltd [2002] 1 ERNZ 597, para 3 (EC) Judge Colgan.
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and assume responsibility for failure (Lemke, 2001). Beck uses the metaphor of the individual as “the planning office” of risk society, constructing his/her own biography (1992, p. 135) to illustrate the neo-liberal rationality.
Ivan‟s well-being depends on his capability to achieve the “functioning” of employment security and this requires a “bundle of resources” (Clark, 2005, p. 1361), such as the strength of a workplace collective, the availability of representation, and sufficient information. These resources support making the right decision and the enforcement of that decision. Instead, the current regulation supports the market to mediate the process without a safety net of adequate resources and workers, like Ivan, are exposed to the risk of disadvantage.
6.2.2
The flexible collective agreement
The market encroaches on the workplace through the “informal” arrangements but it also embeds disadvantage through the formal workplace agreement. Workplace agreements are described by Beck as documents of consent and they reveal the social risk position of contract workers through the flexibilities contained within them (1992, p. 23); they reveal the unequal “possibilities and abilities to deal with risks, avoid them or compensate for them” (p. 35). The collective employment agreements of hospital workers and commercial cleaners reflect different modernities, represent different levels of risk and, consequently, result in different degrees of disadvantage. The agreement for hospital kitchen workers reflects the large traditional collective groups of the first modernity, where workplaces are fixed, and hours are relatively standardised. The kitchen workers have ready access to representation and systems for communicating with the business. By contrast, the commercial cleaners are employed on a collective agreement that provides for flexible hours, an hourly rate marginally above the minimum wage and few systems for monitoring compliance. This latter agreement reflects the fluid, risky workplace of the second modernity.
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The workplace rights, through the collective agreement, reflect the ability of the workforce to achieve certain functionings, or what capability theory describes as “beings” and “doings” (Clark, 2005, p. 1343). The comparison between commercial cleaners and hospital kitchen workers, in the interviews, provides an insight into this. Marcus‟s agreement entitles the employer to control the hours of work, as he says “they chop the hours back, then they give them back, then they had to drop them again because they said they had too many staff.” By contrast, Carol‟s hospital agreement embeds consultation, and she approaches her employer on the basis that „that‟s what we‟re all about‟.” The combination of functionings available to hospital workers through standardised hours, a union presence and contractual rights to consultation greatly enhances the capability of hospital workers to achieve the benefits provided for by Continuity of Employment legislation. While both groups relay stories of material disadvantage arising from the employers‟ non-compliant practices, the quality of the entitlements provided by the workplace agreement are a critical factor in the degree of disadvantage experienced by the two groups.