Nick Mayne, a member of the National Distribution Union, wrote to several evangelical Christians to ask for a position paper on the National-led government’s labour reforms.

Martien Kelderman agreed to write a paper to get the ball rolling. His paper and Nick Mayne’s initial response are posted below.

Feel free to read and add your own response. Please give your name and current occupation or reason for interest.

Nationals Employment Reform 2010 – towards a theological critique

By Martien Kelderman

The proposed reforms

Prime Minister John Key announced a number of changes to the Employment Relations Act 2000 (ERA) and Holidays Act 2003 as part of a new employment law package. Some of the planned changes follow recent Government reviews of both the Holidays Act and the personal grievance provisions contained in Part 9 of the ERA. The Government is promoting the package to reduce compliance costs, increase business confidence in recruiting new staff, expedite resolution of workplace disputes and provide greater choice for employers and employees.

The changes announced to the ERA include:

· 90 day trial period

Extending the 90 day statutory trial period to all employers. Currently, the trial period is only available to employers with less than 20 staff. Trial periods, which have been available to small employers for employees engaged after March 2009, protect employers from unjustified dismissal claims. As under existing law, a trial period will only apply where the parties agree to it in writing at the commencement of the employment relationship.

· Union access

Amending the rules on union access to workplaces, so that any access is subject to the employer’s consent, but such consent cannot be unreasonably withheld.

· Communications during collective bargaining

Allowing employers to communicate directly with employees during collective bargaining (including details of any settlement offer), subject to the overriding duty of good faith.

· Justification for dismissal and fair process

Changing the test of justification for an employer’s actions, including dismissal, under section 103A of the ERA to ‘whether the employer’s actions and how it acted were what a fair and reasonable employer could (rather than would) have done in all the circumstances at the time.’ This amendment is aimed at acknowledging a range of possible reasonable responses in any situation.

· Inserting new statutory minimum requirements of a fair and reasonable process (codifying principles already established by case law) and inserting an express provision that employers’ processes will not be subject to pedantic scrutiny with regard to minor deficiencies.

· Introducing a new code of employment practice on disciplinary and dismissal procedure

· Mediation

o Promoting mediation, including providing mediation services for early problem resolution without external representatives, and providing for the Employment Relations Authority to give priority to mediated cases.

o Empowering mediators and Employment Relations Authority members to make recommendations which become binding if accepted by the parties within 7 days.

· Employment Relations Authority

o Empowering the Authority to dismiss frivolous or vexatious claims.

o Reviewing existing Authority Regulations to formalise the conduct of investigations, and to provide for the right to cross-examine witnesses.

· Remedies

o Removing reinstatement as the primary remedy for unjustified dismissal - it will remain a possible remedy in dismissal cases.

o Increasing penalties to a maximum of $10,000 for individuals and $20,000 for companies.

· Holidays – Plans to amend the Holidays Act include:

o Allowing employees to “cash up” one of their 4 weeks of statutory annual leave entitlement. Cashing up will be permissible only at an employee’s request. Mr Key specified that employers will not be permitted to raise this issue during salary negotiations.

o Introducing a new calculation referred to as “average daily pay” for public and alternative holidays, and days of sick and bereavement leave, for employees who have irregular working hours and pay. Average daily pay will apply to these “irregular” employees instead of the current relevant daily pay (RDP) calculation, and will be based on gross earnings for the preceding 52 weeks. It is not yet clear whether the definition of “gross earnings” under the Act will remain the same for this purpose. RDP will continue to apply to employees with regular hours/pay.

o Allowing employers and employees to agree to transfer one or more public holidays to other (identified) working days.

o Providing employers with the right to request proof of sickness or injury at any time (including within the first three days of leave), provided that the employer covers the employee’s costs in obtaining such proof.

o Providing for employers to determine when an alternative holiday should be taken where agreement with the employee cannot be reached. Currently, employees can determine when to take alternative holidays during the first 12 months of the entitlement arising, and only after that 12 month period can the employer decide when this alternative holiday is to be taken.

o Doubling penalties as above.

· The Government anticipates a new Bill amending the ERA will be drafted for introduction this year. It is likely that the above changes to the ERA and Holidays Act will come into force next year.

1. The government has listed 10 areas of change covering 19 different particular changes. The EMA in its media release (Ref David Lowe) comments on 6 of them. The NDU leadership statement (ref Laila Harrie) comments on three of them. Both represent an unwillingness or inability to grapple and speak to the actual proposed changes.

2. Trial Periods have been available to more than 97% of New Zealand business since March 2009. In that 16 month period there was an ideal opportunity for both EMA and other Business networks and for the NDU and/ or any other Union or the CTU to do or commission the research to evidence the impact of Trial Periods on employment. Neither government, employers nor unions have done so and that is a disgrace. We now have a miserably small collection of five anecdotes (Trial periods work. Here’s the evidence, EMA Media statement July 16^th, 2010) from EMA which could well have been the only five SMEs in New Zealand to have had any benefit from trial periods. The inadequacy of this is only surpassed by the unions, who have not one anecdote to support their position. Neither side has any evidence.

Theology Point No 1: Truth and honesty should underpin our lives. Where truth in information is available, we should commit to work from that platform, and in its absence we should as believers demand the research that allows just and informed decision making. We must not sign up to power plays based on rhetoric.

3. Regarding the role of Government: While I appreciate it has a role to represent a constituency and carry out what it believes it has a mandate to achieve, it seems to me it has a choice about the methodology for achieving that. The announcement is somewhat heavy handed given the process it must go through in parliament anyway and the changes that are inevitable in the parliamentary process.

4. I see a mandate for what the Roman Catholics would call subsidiarity - a principle of social doctrine, that all social bodies exist for the sake of the individual, so that what individuals are able to do, society should not take over, and what small societies can do, larger societies should not take over. - (in political systems) the principle of devolving decisions to the lowest practical level. (Definition source: Collins English Dictionary) I have concern about Government taking a role in such a discussion and a concern about Union and Employer Association involvement. I note again in the public rhetoric Laila Harrie speaks overwhelmingly about the perceived threat to union power and influence and barely mentions the worker. I think she may not reflect the hearts and minds of NDU organisers and support workers in this. The EMA voice is more articulate on behalf of its members in this case, but hardly in an informed manner.

Theology Point no 2: I protest the manner of leading. Biblically we have the invitation to lead as servants and not to Lord it over your subjects.

Theology Point No 3: The reluctance of God to give Israel a king, the administration of support for the poor lying first with the family, then the clan before it, goes to the temple/nation, the Matthew 18 priority on private resolution of differences all support this sense of subsidiarity.

5. The scriptures do not tell us how to set a wage or even what a just wage is but they do point to a flavour in dealing with wage determination.

· What they do point to is that wages should be right and fair;

“Masters, provide your slaves with what is right and fair, because you know that you also have a Master in heaven”; (Colossians 4:1)

· That Wages should be paid in a timely fashion so the worker is not left without;

“Do not defraud your neighbour or rob him. Do not hold back the wages of a hired man overnight.” (Leviticus 19:13)

“Pay him his wages each day before sunset, because he is poor and is counting on it. Otherwise he may cry to the LORD against you, and you will be guilty of sin,” (Deuteronomy 24:15)

· Wages should not be determined by exploitatively taking advantage of the workers misfortune or lack of bargaining power;

“Do not take advantage of a hired man who is poor and needy, whether he is a brother Israelite or an alien living in one of your towns,” (Deuteronomy 24:14)

Do not rule over them ruthlessly, but fear your God.” (Leviticus 25:43)

“He who oppresses the poor to increase his wealth and he who gives gifts to the rich—both come to poverty”, (Proverbs 22:16)

"So I will come near to you for judgment. I will be quick to testify against sorcerers, adulterers and perjurers, against those who defraud labourers of their wages, who oppress the widows and the fatherless, and deprive aliens of justice, but do not fear me," says the LORD Almighty (Malachi 3:5)

“Look! The wages you failed to pay the workmen who mowed your fields are crying out against you. The cries of the harvesters have reached the ears of the Lord Almighty.” (James 5:4)

Woe to him who builds his palace by unrighteousness, his upper rooms by injustice, making his countrymen work for nothing, not paying them for their labour. (Jer 22:13)

And there is a level of worthiness of keep in the worker;

“Take no bag for the journey, or extra tunic, or sandals or a staff; for the worker is worth his keep.” (Matthew 10:10)

For the Scripture says, "Do not muzzle the ox while it is treading out the grain," and "The worker deserves his wages." ( I Tim 5:18)

Theology Point No 4: Simply on the balance of statements above, while Scripture does not provide a formula it does have a serious concern for taking advantage of the poor when it comes to managing wages. Simply put, if the wage is determined as lower than worthy by virtue of the employer’s greater power, or because of the employee’s sense of need, or because the surplus amount of labour available allows you to do so - then you face an unhappy God. I believe that in a recession economy, for a government to seize the moment and weaken the position of the employee is taking advantage. I do not make the claim that this shift of power (albeit in reality only a very marginal shift) away from the employee and towards the employer is unjustified because it may well increase employment. (No one knows because no one has done the research!) It is the timing that is biblically suspect.

Further to this point of exploiting the poor

It is hard to ignore the timing of this government action and the response. Towards the end of its second year the government needs to play to a constituency, ‘to appear conservative in its values’ given its extraordinary knack for doing what Labour failed to do, ie, Get the Maori Party into coalition, address the foreshore issue, apply an ETS etc. This playing to its constituency with an election coming exploits the poor. However, it is even harder to not see the “over reaction??” of the labour movement in the same stage of the electoral cycle as a political play. Labour politically has made no traction, the leadership remains uncertain, it needs runs on the board and the union movement is profoundly compromised with conflicts of interest, given the journey to Labour political leadership from labour union leadership. The campaign looks like it has started and the pawns in the game are the workers. I think on both sides God would be unhappy with this taking advantage.

6. I don’t see on the part of either side of this debate the acknowledgement of human frailty and sin on the part of their own membership which demonstrates they are dignifying the humanity of the other party by at least listening. The underlying issues of power are fuelled by human failure. The employer who is tempted to control and perhaps exploit a worker even more so because economic conditions are tougher this year, and labour is not in the driver’s seat as it was a couple of years ago. The worker who fails to be whole-hearted in both seeking employment and honouring the employment relationship.

Theology Point 5 Slaves, obey your earthly masters with respect and fear, and with sincerity of heart, just as you would obey Christ. Obey them not only to win their favour when their eye is on you, but like slaves of Christ, doing the will of God from your heart. Serve wholeheartedly, as if you were serving the Lord, not men, because you know that the Lord will reward everyone for whatever good he does, whether he is slave or free.  And masters, treat your slaves in the same way. Do not threaten them, since you know that he who is both their Master and yours is in heaven, and there is no favouritism with him. (Ephesians 6:5ff, see also Colossians 3:22-4:1)

Theology Point 6: It is always good to see the big picture of where God seems to be going. To see one’s self within the movement of God through his Church in history is strengthening. Let me dare to summarize 4,000 years of history with some bullet points and place ourselves within it.

1. God created humanity in his image, relational, equal in his sight. There is an implicit redemptive challenge to work this out which is restated in the Apostle Paul’s words: In Christ there is neither Jew nor Greek, male nor female, slave nor free.

2. The scholastics (1100 – 1500) articulated the case for a Just Wage which focused on what we today would call a living wage, paid consistently and in a timely fashion, subject only to the affordability by society.

3. The first free market experiment (1700 – 1920) demonstrated the ability of that economic system to create wealth and distribute it to larger portions of the population than had ever previously enjoyed a share in economic growth, but it also demonstrated a remarkable capacity for selfishness and exploitation that caused church leaders, both Protestant and Catholic, to call for restraint and for justice, appealing again to the Just wage philosophies of our Christian forebears. Wilberforce, Shaftsbury on the Protestant side, Pope Leo XIII (Encyclical Rerum Novarum 1891) and many others worked to address the offenses of the industrial revolution and the values and spiritual vacuum of the age. The Catholic Church significantly supporting the Trade Union movement as a balancing of power mechanism and as a bulwark against state intervention and Marxism. We see fresh momentum in reform theology articulated through Abraham Kuyper and Sphere Sovereignty, calling on Christians to be faithful in their sphere of influence

4. The early 20^th century saw the social gospel movement and philosopher theologians like Reinhold Neibuhr throw their weight behind organised labour and a just wage.

5. The depression years precipitated government interventions and a restoration of Just Wage (living wage) convictions. These values increasingly entered the negotiated wage settlements of the 20^th Century. Popes Pius XI and Pius XII both taught that in determining wages it is a criteria of justice to consider sufficiency of support for the family of the worker, the conditions of the business and the concerns for the common good.

“But social justice cannot be said to be satisfied so long as working men are denied a wage that will enable them to secure proper sustenance for themselves and for their families; as long as they are denied the opportunity of acquiring a modest fortune and avoiding the pauperism which is so widespread; so long as they cannot make suitable provision through public or private insurance for old age, for periods of illness and unemployment”[1]

John XXIII in Mater et Magistra added the personal contribution of the worker as a criteria. It was deemed important to maintain mass consumption, so a good wage was important to sustain this. John Paul II in his extensive Laborem Exercens (1981) declared the priority of labour over profits.

6. While the liberal theologies of the social gospel and Neibuhr caused evangelicals to withdraw from involvement, today they are re-engaging, encouraged by ‘kingdom theologies and a renewal of Sphere Sovereignty. Theology of Work training and published materials have exploded in the last 10 years, much of it left-wing in application.

7. In this context, with a consensus that Just Wage principles are enshrined in our thinking, there is I believe a growing urge in evangelical Christians to take the demonizing out of the industrial debate, to revisit the sense of all called to serve God in their vocation and to dare to begin to explore economic democracy as a target expression of being created in the image of God. As such, there is a caution about resurrecting old dichotomies and political ideologies, all found wanting for their co-dependency on confrontation and on materialism.

I finish with a last word from J Philip Wogaman[2], who campaigned with the United Methodist Church against corporate abuse in the infant formula market. His reflections on mobilising a church community, be they defined by congregation, denomination or just by a label like evangelicals, include:

Use of raw institutional power, while sometimes necessary, risks distortion of moral issues. The church needs to be clearheaded about the conditions under which it believes such actions are justified. For example, such a serious matter as an economic boycott (or strike or political campaign) should not be undertaken unless

1. It is a relatively grave issue
2. It is a last resort after serious dialogue has been tried and proven ineffective
3. There has been due process in consideration of the issue by church membership
4. The reasons for the action and their ethical/ theological rationale can be made clear to the church constituency and to the target of the coercive action
5. Leaders of the offending body know what they must do to bring the action to an end
6. The action is likely to be reasonable effective, without unacceptable side effects and
7. The church body is capable of ending the action when there is no further need for it. The fact that actions are often taken by broader coalitions of organisations make it important to emphasize that church bodies should never simply delegate decision-making authority to others. The theological / ethical integrity of the church requires that it remain accountable for its own actions even when it acts in concert with others.

He adds:

“Part of the genius of the civil rights movement of Dr Martin Luther King Jr and others is that they could conduct very hard-headed campaigns while at the same time honouring the personhood of the adversary.”

Solidarity

By Nick Maine

Compare for a moment these phrases:

“An injury against one is an injury against all”

or

“If one part suffers, every part suffers with it; if one part is honored, every part rejoices with it.”

or

“Injustice anywhere is a threat to justice everywhere”

One of these is a union catch phrase, the second comes directly from the book of 1 Corinthians; the last one is from the Martin Luther King Jr. All describe a concept that the union movement calls solidarity.

We live in an age heavily influenced by Enlightenment thinking. Immanuel Kant described the enlightenment as “man’s release from his self-incurred tutelage”. Hiebert describes “tutelage [as] man’s inability to make use of his own understanding”[3]. In essence, the Enlightenment gave rise to individualistic thinking, which has infiltrated all aspects of society. In one breath, Enlightenment thinking gives birth to unionism by allowing them to question authority and plan for a better future; in another it limits its ability to prosper as members of unions focus on individual views of outcomes rather than the collective good.

The church is also susceptible to Enlightenment thinking. The practical applications of solidarity are alien to us; and despite popular authors like Rick Warren in “The purpose driven Life”, Ron Sider and Jim Wallis encouraging the building of faith communities that embody solidarity, in most churches there is still a secular-sacred divide that sees the assistance given by church family for everyday problems being little more than a prayer. Compare this with Acts 2:42-47 and 4:32-35: all believers were together and had everything in common; every day they continued to meet together; were one in heart and mind; no-one claimed that any of his possessions was his own; shared everything they had; not a needy person among them; was distributed to anyone as he had need. For the early church in Jerusalem, church was not a once-a-week affair; it was living in community everyday and taking care of one another.

Although not evident in Acts, the early church did more than just look after their own poor; they looked after everyone else’s as well. This was a practical application of Jesus’ teaching on love, which extended well beyond those who where easy to love within one’s own community but also to those we may consider enemies. In response to a teacher of the law, Jesus tells the parable of the Good Samaritan. Perhaps we might tell this story today like this:

There once was a man. There was nothing attractive about this man, he was as ordinary as you can get. Lacking the charm and skill to succeed in the labour market he took whatever job he could get to provide a meagre income to support his family. At the time of our story this man found himself working for a hardware store, in a year which the media was calling an “economic recession”. Not that that meant much to this man; while he knew many of his friends where struggling to find employment, he seemed to be as busy as ever in the hardware store.

Once a year, usually about the time the government considered the minimum wage, the owner of the store would address all the workers in his store and announce what their pay increase would be. In some respects, this year would be just like any other, but in many other ways it would be different. At the usual time the owner pulled into his car park; just from far enough away from the loading bay to avoid being scratched in his two-year-old BMW. He called all the staff together in the lunch room, staff from the nightfill barely able to keep their eyes open after staying at work an hour past their normal morning finishing time so the owner could address them with the rest of the staff. He stood at the front, dressed in clean casual attire like he was ready to hit the golf course, and announced: “Times are tough; costs are up and we have not had as many customers through the door. For that reason I am unable to offer you a pay increase this year. Instead, you will each be meeting with your team leaders to discuss new rosters to meet the changing demands on the business.” The rest of the owner’s speech was lost on the man; he did catch something about how much the owner valued their contribution to the business; only because it contrasted what he felt as he tried to calculate how he would pay the bills; as the owner said costs where going up but his income was not. Things only got worse when he met with his team leader to discuss his roster; the change he was told he would have to accept if he wanted to keep his job was actually a decrease in hours, and for the first time ever he would have to work on Sunday; preventing him from attending church.

Three weeks later there was a nock at the man’s door; it was his church minister. “I have not seen you at church the last two weeks; and your automatic payment tithe has stopped; is everything alright?” The man explained to the minister what had happened at work. He explained the announcement by the boss; and then proceeded to explain that even though they had decreased his hours they still expected him to get the same amount of work done; and when he did not get it done in his rostered hours, but worked late to finish the work and avoid his team leader yelling at him, they did not pay him for the additional hours. The minister’s discomfort was evident by his face. He expressed sympathy for the man’s situation, suggested he talk to one of the elders who was a manager in a shipping company, and offered to pray for him. And so the meeting ended with the minister praising God in prayer that the man had a job; while seemingly forgetting the man’s problems at work.

About a week later the man received a call from the elder the minister had recommended. The man explained to him his predicament in the same manner he had with the minister. It seemed to the man the elder was not really listening for before long he was dominating the conversation by talking about how tough things where, and how little freight was coming through the ports. The man had almost given up all hope when the elder suggested he make contact with the lawyer he used at work when the union caused him problems. And then with little more than a “hope to catch up with you again soon”, the conversation was over and the elder went back to his safe and easy life.

The next day the man called the lawyer during his lunch break, which was no easy feat; the owner had removed access to the lunch room telephone and he had to go down the street to use a pay phone. It was not a long conversation though; he never talked to the lawyer. His receptionist explained that as a favour to the elder the first appointment would cost $75 and he would have to wait 10 weeks for an opening. Without even realising this was only the beginning of the costs involved, he decided that he could not afford to visit the lawyer and gave up all hope.

By chance, the next week a union organiser turned up at the work place. The man was surprised to see that the owner allowed the organiser on site, until one of his colleagues informed him that he had called the union and that the organiser had had to quote his union access rights before spending half an hour negotiating the logistics of the visit. The man met with the organiser, and they discussed his problems. The organiser explained how the employer was in breach of employment law on some issues and how other issues could be resolved through collective bargaining. The man joined the union, and while all his problems where not solved overnight, the organiser worked with him and other staff at the hardware store to improve conditions over time.

Jesus concludes his parable by asking the teacher which one showed love; and without hesitation even the most wicked person would reluctantly admit that the third man, the Samaritan or union organiser showed love because they offered practical assistance. Their love had nothing to do with theological or ideological correctness, it was merely responding with self-sacrifice to need. Yes, self-sacrifice. There are some union officials who do use their position simply to collect union levies and enjoy the good life, but by far the majority I have met work very long and hard hours for which they could get better pay working for employers. This observation is only affirmed by the burn-out rate of organisers, usually about every 6 years, and the number of them that do eventually get high paid human resource manager jobs.

I believe that God alone will judge the hearts of men and decide who will enter his kingdom and who won’t. But even so, I can’t help but wonder as I read the parable of the sheep and the goats, and I read of the surprise of those on his right who he welcomes for their practical love, whether some of my non-Christian union friends will find themselves there. I can’t help but wonder if CS Lewis was right, when Aslan says in The Last battle, “all the service you did for Tash I count for myself”. But this is mere speculation. One thing I don’t question is that the work they do is the love the church should show.

What I then conclude is that:

1. Churches and unions share a lot of common values.
2. The church should be doing more of the work that unions are doing, but I don’t believe they should compete, rather the church should co-operate on our terms.
3. Unions are built on poor foundation that prevents them from prospering; unions on a Christian foundation (that was based on love not the individual of Enlightenment thinking) would be stronger.

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