There are two reasons for concern.

First, since 1990 New Zealand has had a single, unified, system of labour and employment law. Older readers will remember such long-departed acts as the Waterfront Industry Act and the Agricultural Workers Act as well as the State Services Conditions of Employment Act. The SIWB begins to reverse that practice and, if passed, is likely to increase pressure for specific employment relations regimes in other industries.

Unlike the acts mentioned above, which were largely designed to protect workers in particular industries, the new forms of special labour legislation is likely to be designed to protect the interests of capital, and in particular large-scale international capital. The SIWB is largely intended to legislate to protect the special interests of major Hollywood film companies and should this legislation pass it is not difficult to imagine that the likes of Uber and major transport interests will begin lobbying to protect their employment practices. The precedent value of the SIWP seems to have attracted little public attention but will certainly have been noted by such major industries seeking to protect their own employment practices.

There is no evidence that a return to such a fractured legal structure is either necessary or desirable and in fact the contrary is likely to be the case. Legislative changes over the past decade have done much to cement in place a clear set of minimum employment standards. Clause 32 of the Bill seriously undermines those achievements by making such standards ‘voluntary’ for a significant number of workers. Matters such as a minimum wage, holidays, zero hours contracts and availability for work should not be negotiable matters for a single industry.

Even if a case might be made for specialised industry legislation the character of the industry covered by the SIWB does not present a compelling case for an exception from the current overall employment law regime. Even if some workers in the industry may have unusual characteristics, significant numbers cannot be clearly differentiated from similar workers in other industries. The line between so-called independent contractors and employees is one that has caused considerable difficulties in a number of industries over recent years but in principle this should not be a problem. The problem arises because many employers seek to avoid or evade the protections available to employees and remains embedded in employment practices. Any resolution of this problem needs to be addressed across the workforce as a whole and not for any particular industry. MBIE have recently carried out a wide-ranging consultation on the problems of contractor exploitation and one assumes that this will be reported on with recommendations to government in due course. This Bill should not proceed until an overall mechanism to deal with the contractor--employer problems is developed and then only mentioned in accordance with whatever legislative structures is devised at that point.

Second, in addition to the general concern outlined above, the Bill should not proceed for a number of reasons particular to the Bill. These include the following:

1. Removal of the right to strike: The right to strike, other than in very limited circumstances, is an internationally recognised fundamental right of all workers. The convenience of one, non-essential, industry is not sufficient to justify such an exception. Apart from depriving workers in the screen industry of a fundamental right, the removal of the right to strike sets an unwelcome precedent and would reinforce calls such as those to ban strikes in the health sector.
2. The watering down of the obligation of good faith in employment relations: The definition in the Bill reduces the obligation to its barest elements and again sets an entirely unwelcome precedent for future employment law. The definition of good faith in the ER Act has now been in place since 2004 without problems and should be eroded by this Bill.
3. Barriers to collective bargaining: Even though the Bill purports to allow collective bargaining there are significant, and probably insuperable, barriers for workers attempting to take advantage of bargaining rights. The requirement for ‘sufficient support’ puts in place a barrier that will be extremely difficult to meet and which openly encourages anti-union conduct in an industry that has shown little evidence of being sympathetic to collective organisation. The ‘undue influence protection against such behaviour exists in the ER Act and has been demonstrably shown to be ineffective. The experience of United States unions in attempting to gain majority membership in order to initiate collective bargaining is not only illustrative of the problems faced but of the employer tactics likely to be deployed against workers.

In conclusion, the SIWB seeks to impose an employment relations system for a particular industry on the basis of a misunderstanding of existing New Zealand employment law. The Bill (and the original ‘Hobbit’ legislation which should be repealed) address a problem that has not been shown to exist and, if it did is perfectly be capable of being resolved under the existing provisions of New Zealand’s employment law.

Author: Professor Gordon Anderson, Faculty of Law, Victoria University of Wellington