News that an employment deal for migrant workers in the construction sector made joining a trade union a sackable offence should by rights have generated disgust and protest, but with a few exceptions the union movement was strangely quiet, writes barrister Greg Lloyd.

I was disgusted – but not surprised – to see reports that an employment agreement for migrant workers seeking employment in the New Zealand construction industry included a provision allowing termination of employment for involvement with trade unions.

Is such a contractual clause lawful? Of course not. Is such a contractual clause enforceable? Of course it isn’t. That is not the point. The point is that in 2018, an employer in New Zealand apparently thinks it is permissible to deny workers their fundamental human and employment rights. And, yes, the right to join or form a union is a human right. Have a look at International Labour Organisation Conventions 87 and 98 if you need convincing.

It remains to be seen if the internal investigation by Allied Workforce CEO Simon Bennett into how the illegal clause came to be in the contracts reveals anything more than what appears to be patently obvious. I really hope that Mr Bennett, who says there was never any intentional proscription, can show that it was a genuine error and Allied Workforce is committed to ensuring all its employees are free to exercise their right to join a union.

I suspect, however, like many in HR and management positions, the driving consideration for Allied Workforce was its desire to retain absolute control over the structure and form of the employment relationship. That necessarily means ensuring workers do not have the ability to flex their collective muscle by forming or joining a trade union.

Since 1991, following the introduction of the Employment Contracts Act (and continued under the Employment Relations Act 2000), that is what employers have been able to achieve. The language used by employers and their advocates is often couched in terms of freedom of choice. The freedom of workers to not join a union, the freedom of individual employers and individual employees to negotiate their own employment agreement, the freedom of individual employees to excel, and employers to recognise individual excellence.

The reality does not reflect the rhetoric. For most non-union workers there is no negotiation. Employers set terms and conditions and the only freedom enjoyed by workers is the freedom to “take it or leave it”. In most non-union workplaces employees have identical ‘individual’ employment agreements. In other words, a collective agreement without collective representation. The only material difference between a unionised and non-unionised workplace (other than the former generally providing for higher wages and better conditions) is that in one terms and conditions are negotiated and the other they are dictated.

Allied Workforce imposed offensive and unlawful terms and conditions of employment on the most vulnerable of workers, so where is the collective outrage from the union movement? What could be more offensive to those fighting for the collective rights of workers than an employer imposing blatant anti-union terms and condition on vulnerable workers? Dennis Maga, National Secretary of First Union, seems to the be only union leader who has spoken publicly about this issue. Why hasn’t Bill Newson, the National Secretary of E tū Union (the union for construction workers), publicly condemned Allied Workforce? Why hasn’t he called a press conference and demanded the sacking of its CEO? Why hasn’t he organised pickets outside their offices? Let’s be clear, “union rights are human rights” should be more than just a slogan. So where is the outrage?

Historically, organised labour was fundamental to ensuring equality in the workplace. Unsurprisingly the decline of union influence over the past 30 years has coincided with the rise of inequality in the workplace, obscene disparity of incomes, the casualisation of work, increased under-employment and Allied Workforce style employment agreements.

For almost 100 years our laws recognised the need to ensure balance in industrial relations. The state, employers and unions had statutorily recognised and equal roles. Equality of power begets equality of outcomes. Not so any more. For the 90% of private sector workers who are not unionised their only recourse, if they have been unfairly treated, is to pay large sums of money to lawyers and advocates in the hope that they may get some semblance of justice. For many the cost and risk is too high, so for them access to justice is denied.

As a lawyer specialising in employment law I see a wide range of bad employment practices. The construction industry is particularly well represented. One of the practices I find most objectionable and which appears to be common in the construction industry, is labelling workers “independent contractors”. By doing so employers relieve themselves of a whole raft of obligations such as paying the minimum wage, annual holidays and sick leave, KiwiSaver, paid parental leave, providing safety gear, unfair dismissal obligations and more.

Like the migrant workers employed by Allied Workforce many workers in the construction sector, who are employees in all but name, are also deprived of their fundamental rights. To highlight the absurdity of this, I have recently seen two examples of apprentice builders engaged as independent contractors. Think about that: workers engaged to learn a trade are being treated as if they are set up in business for themselves.

If the Allied Workforce incident shows us anything it is that the employment practices of the construction sector as a whole need to be looked at very closely by the government.

Greg Lloyd is a Wellington barrister specialising in employment law

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