Unions will win court battle but lose war

UPDATE: The Ports of Auckland v Maritime Union Employment Court hearing has been adjourned following the death of PoAL QC John Haigh. No new date has been set and PoAL have not found a new lawyer. 

The port says a new court date would not be set until the facilitated bargaining process was finished, which has at least two weeks left. 


The Maritime and Meat Workers unions may win their Employment Court battles this week but ultimately they will lose the war, according to employment law experts.

The Ports of Auckland and the Maritime Union’s full Employment Court hearing starts this Wednesday and will be heard before three judges at Auckland’s Employment Court.

Meatworkers do battle with the Talley family-owned AFFCO on the same day.

The waterfront dispute is entering its ninth month and although a return to work has been negotiated, a new collective agreement has not.

The strike has cost the port more than $32 million in lost revenue and at times has deteriorated into a nasty mud-slinging match.

In the meat-workers dispute, industrial action began in December after 18 months of tension and in February Talley’s locked out more than 700 meat workers at plants across the country.

Associate University of Auckland law professor and founding member of the arbitrators and mediators institute Bill Hodge told NBR ONLINE the port company has "put several feet wrong".

He says its public statements through the media appeared to be addressing individual employees, inviting them to apply for jobs with contractors Allied Workforce and Drake, which was illegal.

While the court may rule in the union's favour, Employment Court judges only had the power to penalise breaches of the rules and could not force a conclusion on the parties.

“It is one of the odd things about employment law remedies in this area. It's more process based than it is substantive outcome based.

"A judge can’t say 'here’s a three-year contract and agreement terms'.”

The maximum a party can be fined is $20,000 but a judge could decide to fine them for each individual breach, which was unlikely, Professor Hodge says.

The union needs to get on board with PoAL’s proposed 160-hour roster over 28 days if the dispute is going to reach a negotiated conclusion, he says.

It remains to be seen what effects recent PoAL board changes will have on the negotiations and if the new board will continue to pursue its contracting out proposal.

There is a general lesson for directors involved in employment disputes to keep their mouths shut, Professor Hodge says.

In the Talley's case, he says there are some “peculiarities”, and even though they had been smarter about making public comments they could still be found to have breached process.

“You can’t lock out one union person, so they may have made some mistakes, but I am not sufficiently familiar with the facts,” he says. 

Partner at specialist employment law firm Cullen Law, David Burton, says it is likely the ports would be found in breach of a number of duties.

The court may find it breached a duty to be constructive and maintain a good relationship with employees by “effectively making these workers contractors”.

But, ultimately, the union will lose out because the port cannot be stopped from contracting out.

He says the port may conclude the negotiations after the hearing and then pursue the contracting out proposal, which is a perfectly legitimate business strategy.

“I suspect any concluded agreement won’t have any undertakings in relation to contracting out, and once that’s out of the way it’s simply a process the port needs to follow if they think it’s the best business model for the workforce.” 

He does not think courts need to be given powers to force a decision on arguing parties.

“The PoAL and AFFCO disputes are fairly unique in our industrial landscape these days. Generally, I think the legislation works really well.” 

In the Talley’s dispute he thinks the union will be worn down because its members have families to feed and they are not getting paid.

But as a consequence, there would be a disgruntled workforce, Mr Burton says.  

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11 Comments & Questions

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Yet - PoAL and AFFCO are encouraging people back to work... even offering a 5% pay increase with AFFCO.

The real issue is the unions are losing relevance in 2012 and are fighting for their very survival whilst still insisting on 1950's style work practises and surprise, surprise the only industries with any "industrial trouble" are the two main industries still heavily "unionised" so what does that tell you?

The unions are the cancer, posing as the cure and when their failed business model of being able to hold both employer and employee to ransom is no longer possible - they shrill long and loud - just like how they're complaining bitterly by not having the ability to stand-over and coerse union members any more, because now the unions have to allow secret ballots before declaring strike action on the whim of a militant delegate.

The unions are fighting for their very survival in an age where their relevance and philosophies becomes more and more insipid by the day. Progress towards a brighter future is what is needed.

The internet allows everyone of us the ability to see the exact situation clearly for themselves - not having to rely on left-leaning MSM and union propaganda swallowed whole without the ability to check facts / details for themselves.

Brilliant sunshine has exposed the failed modus operandi of the unions... and not before time too!

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That's why a large majority of working people are permanently moving to Australia. I note the government are silent about this exodus to Aussie.

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That'll be the Australia where the unions are even stronger than here then?

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they will win the court battle... powers that be will change the laws... democracy or fascism?

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Business owners should have the ONLY and FULL control over their own property, complying within the boundries of the law.

If the existing union's "current level of authorities" were to apply to the housing sector like it does to the employment sector - we would end up with a situation where Real Estate Agents would be able to dictate to house owners what, when and where they can work and do on their own property.

That would not be just or fair or right under any situation... yet, business property owners are expected to comply with union demands - who don't have a single cent invested in the said business - but the unions certianly do have a vested interest in "controlling" the employee and employer to their own ends, to justify their very existance.

It's 2012 - not 1950!

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In October 2001 Talley’s started buying shares in Affco, acquiring 51% by June 2006 and in October 2010 Talley’s had acquired Affco outright. Simultaneously, in the South Island Talley’s Affco set up a new meat company called South Pacific Meats [SPM] building a plant at Awarua and Malvern.
Workers at Rangiuru, Moerewa, Wairoa, Horotiu, Imlay, Manawatu resumed the new season in October 2010 with unilaterally altered terms and conditions of employment by Affco. What had been negotiated and agreed with plant Managers/Supervisors/Human Resources Manager and was long established custom and practice amounted to “nothing” with this new owner. Affco workers objected strongly to the new owner imposing – “here is a new plant agreement, Affco is not going to recognise the current agreement, anymore”.
The workers at AFFCO had two choices
1. Follow disputes procedure
2. Take strike action
Strike action was illegal during the currency of the Collective Employment Agreement.
The Union advised Affco employees to proceed to mediation, if that failed then the Employment Court or Authority. This was Affco employee’s only legal remedy. Unfortunately, Affco continued to unilaterally break agreed terms and conditions of employment across all there sites. The union spent considerable amounts of money on legal fees trying to defend already agreed terms.
Affco prepared Individual Employment Agreements [IEA] which have absolutely no resemblance with the current AFFCO Core Collective Employment Agreement [CEA]. The plant managers had one on one meetings with employees encouraging them to join IEA’s, incentives were pay increases of 3% plus recently a further 2.3%, $1,000 attendance allowance, longer season (up to 47 weeks) and preferential training in the high paid jobs.
The Meat Workers’ Union has a long-standing Core Collective Employment Agreement (CEA) with Affco. Alongside this there are site-based agreements which provide for local work practices – daily production levels, work speeds, staffing levels, pay rates, start and finish times, and shift patterns. Core pay rates range from $13.48 to $15.76 per hour. On top of this workers are paid a rate based on the number of animals killed each day. If the daily “tally” is reached, wages range from $15.76 to $31 per hour. The work is highly seasonal: two to eleven months per year, frequent layoff’s, with many short days and short weeks even during the season.
The Core Collective Employment Agreement expired 31 December 2011.
Affco locked out 700 of its 2,100 employees on the 29th February after only 10 hours of negotiations, indefinitely.
Those employees that didn’t accept the IEA’s as they are essentially “worthless bits of paper”, chose to take a one day solidarity strike action in support of those employees at Moerewa, Imlay, Horotiu, Wiri, Napier, Wairoa and Manawatu that had been locked out.
Affco then locked out a further 250 employees at Rangiuru. Since the first strike of 24 hours, Affco employees have taken 4 separate one day strikes, 1 separate two day strike and now into the 4th five day strike.
At mediation 1st May Affco’s Director of Operations Rowan Ogg dropped onto the negotiating table a completely new CEA that was nearly a copy of the IEA. This was a further attempt by Affco to derail mediation. Facilitation has been set down for the 11, 14, 23 & 25 May. The Employment Court is set to hear the Lockout and Affco’s lack of Good Faith bargaining from the 16 May, for 5 days.

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Grant - the workers had more than just 2 choices... they had a third - to accept the employment offer!

Your words - new plant, new owner, new name - so the business owner as the owner - you know, the people that put up the $$ to build the factory - have every right to call all the shots as they see fit - it's their property to operate / pay as they choose (within the law) not because an interloping 3rd party decides it needs to attmept to remain relevant to the workers for their own existance.

Remember, long standing previous agreements between supervisors and managers don't really mean anything in a new company, as those people haven't put up the cash to make the plant / equipment and pay the wages - they aren't the owners, only the administers - they do not make the rules - those that invest the money get to make the rules. Call the tune, pay the piper...

If the unions really wanted to make the rules - they need to fund the building of their own plant - then they can pay school leavers $20/hr, employ all their staunchest unionists - and from the huge profits these loyal delegates will generate for the unions, the unions will be able to re-distribute all that wealth back to their members.

All they need to do is fund the building and operations of the plants themselves - see solved that for you...

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There is a fundamental underlying attitude pervading these comments - that in the 21st century, the business owner should be able to do whatever he wants to do. Not actually a modern attitude at all but a very old one.

If modern business owners want to really be successful, they might start with an attitude that considers their staff to be a valuable resource rather than a reluctant cost. Employees equally will benefit from an attitude that focuses on how they can help drive the business' success.

There are plenty of examples of major change being achieved in industries, including large scale blue collar workforces, where relationships between employers and employees have led to win-win solutions.

Neither POA nor AFFCO show any signs of being such examples.

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I agree with the attitude comment - except it comes solely from the unions propaganda / angle and insistance on working to 1950's style industrial disputes and actions and all because in 2012 they are losing their relevance...and losing members by the hundreds each week.

ALL business owners I know look after their staff / team far in excess of minimum employment legislation / requirements. Often the team / staff are treated as an extention of family - certainly in the SME environment. Business owners know that their business is based on how good their team are.. and to get excellence from their team they need to be treated with excellence. It's not rocket science.

The unions don't want to hear that though - as they attempt to paint the picture that all employers are greedy capitalist fat cats rorting the worker to line only their pockets -Mr. Cecil Walker PoAL stoush / union plant is a prime example of union propaganda - yet when observed from a neutral point of view - it's the unions that have the vested interest in creating / manufacturing any industrial dispute / trouble so they can then attempt to portray themselves as the "workers saviour" thereby justifying their existance / union fees. When yet all along the unions are the cancer posing as the cure for the gulliable...

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Gee whiz - I wish I knew the businesses you do. I certainly know some and have helped these achieve great change. Incidentally, I have also known many unions with an attitude that has helped make these changes. I certainly haven't experienced the imbalance you talk about, either in NZ or Australia.

But boy I know a lot of businesses of all sizes who don't have the attitude we are talking about, and it strikes me a lot of them are represented in their comments above.

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One of the reasons that Unions are actively flexing their muscle now, and trying to demonstrate their relevance to the employees, is because Unionism is the funder of the NZ Labour Party; forced 'employee dues' to a political party that many employees may not wish to support. Very 1930's. A directive from New York perhaps

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