Protocolo de medición del TM6M

The importance of resources to support the capability of workers to access their rights was noted in the previous section. Trade unions provide one such resource through their role in building collective organisation and this section considers the role of unions in giving voice to the concerns of workers. Enshrined in the International Labour Organisation (ILO) Decent Work Agenda, collectivization is a key mechanism whereby the worker‟s voice is heard in the workplace and the right to freedom of association is upheld (International Labour Organisation, 2009). For the first time labour law gives statutory recognition to the core ILO Conventions 87 and 98 (Mazengarb's Employment Law (NZ), 2009a) through the objects of the ERA (s. 3), including the right to organise and bargain collectively (s. 3 (b)).

Since 1990 industrial relations has institutionalized individualism in employment relations. The ERA establishes the right to the power of the collective through the

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exercise of individual choice, or in Beck‟s words, “the addressee of these (basic) rights and reforms is the individual and not the group, the collective” (2007, p. 682). This is the message in the explanatory note to the Employment Relations Bill which records that the best means of redressing power imbalances is through “the voluntary organisation of employees via unions and collective bargaining” while “giving individuals the choice as to how their terms and conditions are negotiated” (Mazengarb's Employment Law (NZ), 2009c). The ERA exemplifies what Beck describes as the state imposed individualization of employment relationships in risk society (2007, p. 681).

The tension between rights to collective organisation and individual choice is palpable in the conversations with contract workers. Cleaners in the focus groups were unionised and covered by a collective agreement but the role of the union in giving voice to these workers was compromised. The union was a distant player in the contract transfer where individual workers represented themselves. The interviews indicated that self- representation left them feeling at best, discomfort and at worst, defeat. Many eschewed the support of their colleagues for fear of the consequences of visible collectivization. Workers left the union as a result of the transfer process and worksites were de-unionised. For instance, in one focus group, John described supervisors who were vocal in their opposition to the union and workers who would say nothing at the time of the transfer of the contract for fear of losing their jobs, such that in the final count, only “the loyal” remained.

Trade unions are a vehicle of collectivization and, in fact, the sole means by which a collective agreement can be secured under the ERA (s. 40(1)). In capability theory, collectivization is a “conversion factor” that transforms weak bargaining power into effective freedoms; the freedom to make real choices and, therefore, the freedom to exercise real voice (Verd & Miguelez, 2009). If unions are not accessible to workers, then there is an argument there is not a genuine chance to be collectivized or, through that mechanism, for workers to have a voice. The exercise of voice is a critical factor in transforming rights into desired results (Sen, 1987, p. 36). The evident failure of unions to reach into the workplaces of the private sector, illustrated in the struggle of commercial cleaners in this study to maintain their union presence, raises questions about the

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effectiveness of the current law in promoting the right to organise and bargain collectively where vulnerable workers are concerned.

The mantra of the third way, “no rights without responsibilities” (Eichbaum, 2006, p. 51) captures the spirit of enterprise within the ERA but equally exposes a flaw in the new approach for vulnerable workers. Capability theory notes that “individuals cannot be held responsible if they didn‟t have real freedom to select a valuable option” (Bartelheimer et al., 2008, p. 25). Contract workers arguably do not have that freedom; they are largely left to call upon their own resources to make an election to transfer. The resources of those individual workers are limited, in part, by a lack of access to union representation. Yet these workers bear personal responsibility for the outcomes; outcomes which are the product of the delegated risks of a commercial transaction. Beck refers to the “direct relation between crisis and sickness” where “social crises appear as individual crises which are no longer (or only very indirectly) perceived in terms of their rootedness in the social realm” (1992, p. 100).

This “sickness” was illustrated in the psychological impact of the transfer process on workers in the study, where images of death and broken marriages reflected the personal humiliation, inadequacy, and loss associated with their experience of contracting out: Carol talked of “betrayal”, Sala was “grieving” at her change of circumstances; and Joseph talked about “the loss of a wife”. The ERA provides employees with rights to freedom of association and rights to good faith negotiations but the evidence suggests there is insufficient attention to the conversion factor of collectivization to ensure those freedoms become a reality. Without the real freedom to select a valuable option workers should not bear personal responsibility for the consequences and the fact that they do is indicative of evident psychological disadvantage in the contracting out process. It also exposes the flaw in a third way approach to legislation for vulnerable workers.