To advance, workers must break the law: a reply to John Kerr

by Don Franks

In response to my piece NZ union structure past its use by date John Kerr wrote: 

Bit of a cop out of an article: some penetrating analysis of what’s wrong (echoed in other pieces by Trotter et al) but no concrete suggestions around possible solutions…

I agree that ‘if we really want to be addressing child poverty we would do so by lifting wages, decreasing rents and increasing benefits.’

And I agree the current union model ‘isn’t working’ in this regard, but there are no suggestions in this piece of an alternative that might…

Don complains about there being no structures where workers can get involved,

I understand Unions Wellington, in Don’s home town, has just elected a committee of eight and the majority are rank and file workers, including library staff, civil servants, hospo workers and a new start at the Ngauranga meatworks.

Unions Wellington has held meetings with dozens in attendance to support striking nurses and had a rally of a couple of hundred to support the bus drivers’ strike.

I was on a picket line with striking nurses last week in Christchurch together with port workers and Unions Canterbury frequently organises solidarity action of this type.

Both Unions Canterbury and Unions Wellington are convened by younger unionists who weren’t around at the time of the FOL.

When was the last time the author of this piece attended a Unions Wellington meeting, picket or rally? With all due respect to his previous union work, if the author doesn’t stay connected other than via on-line means he runs the risk of becoming out of touch and irrelevant.

John’s comments reflect a common attitude among New Zealand unionists. The view that, yes, there are problems in union organisation but we need practical suggestions rather than critique. Critics would be better employed participating in the union activity on offer at the moment. I used to think that way too, now I don’t. The formula hasn’t worked.  Numerous reports show workers’ conditions in New Zealand have deteriorated to a parlous state. 

As the organisation Closer Together Whakatata Mai summarises:  “Over the last three decades in New Zealand there has been a step change in inequality — we’ve gone from being one of the most equal to one of the most unequal countries in the developed world. Over that time we’ve seen the top incomes double ( and) the bottom half of incomes barely changed. The current trend shows no sign that this ‘step change’ to inequality will be reversed.” Reversing a downward trend like this demands radical action. Qualitative change from the previous routine which has failed to deliver.

John wrote: “Don complains about there being no structures where workers can get involved.”

I said no such thing, because of course there are. What I did say was: “the central union movement structure has changed… There are no mass multiunion campaigns rallying marching and striking for working class demands.”

There’s never been a problem with workers being involved in unionism. The question is how we’re involved. As a central reason for worker’s poverty Closer Together Whakatata Mai  cites: “Changes to employment law weakened the bargaining power of low-paid workers so they found it harder to win pay increases.” With a succession of anti-worker laws, National and Labour governments have restricted our freedom to strike. To the point where unions have become ineffectual and workers have consequently ceased to join them. 

It has to be said that most of New Zealand union officialdom accepted the series of anti-worker law changes. Most infamously in 1991, when top union officials derailed workers’ demand for a general strike against the Employment Contracts Act.  Passed into law, the bill had a devastating effect on the union movement. Membership almost halved between 1991 and 1995, with union density going from 41.5% to 21.7%. Union membership figures for 2019 are 19.8%, and absolute numbers up to over 400,000.*

Whether a general strike would have been enough to kill the bill, we’ll never know, because CTU president Ken Douglas and others repressed the demands for action. What we do know, only too well, is the role union leaders played in creating the ECA’s replacement. Leaders of the NZCTU actually helped draft the Workplace Relations Bill, which retained the anti-strike laws of the National Party’s ECA.

At the time I wrote to  Douglas arguing: “It’s incomprehensible to me how an experienced union leadership can put up a proposal to a future government which allows workers to be jailed, sued and fined, and yet that’s what the ERB unambiguously calls for. It’s bewildering to read a proposal for a labour law restricting the right to strike, when that proposal is put up by the union side.” Douglas replied, describing his WRB as “alternative legislation that builds on the core conventions of the ILO” and simply ignored all my points about the right to strike. To this day, the same anti-strike restrictions remain law in the Labour Party’s Employment Relations Act, which Douglas also supported.

This sell-out style of leadership provoked increasing union discontent. In 1998 the Service Workers Union complained: “The CTU has continued to seek to influence policy in government forums rather than adopt an active campaigning role with a diverting of resources towards this. There is a perceived reluctance on the part of the CTU to participate in large scale campaigns which could change the climate, be catalytic events and lead to the downfall of the government.”

In response to this and other criticism, CTU leaders commissioned a ‘review’ by professor Nigel Haworth, which claimed the CTU possessed “a powerful and respected public presence… the work by its officers attracts high regard from across the political spectrum and from external organisations.”  CTU leaders then pushed divisive contestable funding through the CTU. All its 14 district councils were dissolved, along with their rights to retain a proportion of capitation fees. All CTU money was now controlled by a finance committee of 6. Outlying districts that required funding for any campaign now relied entirely on approval by the new central committee.

To my mind, this action did more lasting damage than the deflection of a general strike.

The  structure dismantled was a national body with local district councils in main centres across the country. District councils’ strength was variable, but larger councils in the main centres had real influence in industry and society. Operation of the councils revolved around regular meetings. In Wellington, between forty and sixty unionists delegated to the council met monthly in Trades Hall. These delegates connected shop-floor unionists with the national union organisation – and with each other.

The more active and militant unions made the strongest connections. For example, waterside worker delegates to the Trades Council were elected from mass meetings, sometimes after keenly-fought contests. They were bound to regularly report back on outcomes of Trades Council meetings. Other council delegates were appointed by the executives of the unions they belonged to. The more complacent unions were represented on the Trades Council solely by their paid officials and some unions seldom participated at all.

Most administrative work of the local trades council was done by its elected secretary, who was also a full-time union functionary in another capacity. Council funding came from capitation fees paid by each union affiliated to the FoL. Part of the capitation fee went to the national office and part was retained in the district. Rank and file workers had opportunity for input into their local FoL councils, by means of a clear formal procedure. A shop-floor item of concern had to find acceptance with a union, who then sent a formal letter to the local council’s monthly meeting. All such correspondence was read out, debated and voted on. A letter calling on the council to campaign on an issue could thus become agreed council policy. The cutting edge of this process was that a motion, if passed, became the policy of all unions. In this fashion, decisions were democratically taken for masses of workers to campaign on a wide range of issues. Along with wages and working conditions, councils debated a wide range of social issues, including abortion rights, action against apartheid and nuclear weapons. Trades Councils could and did call special meetings when demanded by sufficient numbers of affiliates

I am not about romanticising the previous Trades Council structure. It was uneven and had many flaws. However, it also served as an instrument where workers could exercise some real control over their elected representatives. Present local union gatherings don’t afford that degree of workers’ control. They lack the accountability of the previous union organisation and are also constrained by much tighter anti-strike laws. Today, in New Zealand, workers’ strikes outside of very narrow restrictions can be punished by fines or imprisonment. 

It’s not possible to recreate the structures of a past era. But more of the same, however well intentioned, will only see workers sink further into homeless poverty. 

We should reconsider the union movement’s origins. Unions were first formed by downtrodden people, in defiance of the law. These new organisations were controlled by the working people who created them. Today, New Zealand unions are a service model, run and controlled by law-abiding professional operatives. As this state-monitored model has become the norm, workers’ share of society’s good things has declined. At some stage, I believe low-paid workers wanting a better life will have to do what our forbears did, unite to break the law and create their own organisation.

*This article originally had the union density figure at 11% which was taken in error from cut and pasted figures from other labour material relating to the USA.


    • Thanks Malcolm, yes I was in error there.
      Latest statistic from Victoria University labour studies cites:
      As at 31 December 2018 there were 374,721 union members, a slight upturn in union membership (3.6% increase) on the previous year.
      Union density 17.7 percent at 31 December 2018.

  1. It’s good to have this recent history laid out clearly Don. The contrast between the way we work now in Unions Locals and the old Trades Councils is stark. As secretary of Unions Otago since 2013 there have been times I’ve felt optimistic about our ability to bring workers together in various struggles but my enthusiasm is really waning now. We are cut off from the decision-making in the central National Affiliates Council. As you say, we have to apply for funding if we want it. We are also not seated at the CTU conference. Yet the Unions Locals are supposed to be the CTU’s presence “on the ground”. But the problem is the lack of struggle in the workplace. We will only see a revitalisation of workplace organisation and democracy once workers start to fight back again in their jobs. There were some promising signs of this with the strike wave in 2018/9. There are other promising signs in the development of rank and file networks like the Health Sector Workers Network. We had one gathering/conference in Christchurch a couple of years ago and it is now time to organise another, and try to bring in workers in more industries/sectors to form their own. We need to build a pole in the workers movement that religitimises the strike and class-struggle unionism. I think we are seeing this now in some places. FIRST Union for example. We need to have a strategic debate in public about what the way forward is. I think we need to commit to reorganising strategic parts of the private sector and public sector unions need to be part of making this happen.

    One point in your article I’m not sure about is the restrictions around the right to strike. As far as I can work out striking was unlawful under the arbitration system, right up to the introduction of the Industrial Relations Act in 1973. This law removed penalties for strikes over disputes of interest. Employers were still free to use the law of tort to prevent strikes and sue for damages but they largely didn’t do this till later. Muldoon introduced penalties for political strikes through an amendment to the Commerce Act in 1976. It wasn’t till the 1987 Labour Relations Act that a statutory ‘right to strike’ was actually created. The LRA created a lawful right to strike over disputes of interest, and granted immunity from economic torts. My point is that workers were taking unlawful strike action all the time in the 50s, 60s, 70s and 80s. After 1955 the Department of Labour stopped prosecuting strikers (see Bert Roth’s books and Gordon Andersons). Workers walked out all the time to defend their fellow workers, over job losses, all sorts of things, and these were unlawful strikes that theoretically could lead to prosecution and penalties. So what’s changed *isn’t* mainly the law – it’s the balance of class forces and the diminishing of shop-floor organisation and working class solidarity.

  2. “My point is that workers were taking unlawful strike action all the time in the 50s, 60s, 70s and 80s. After 1955 the Department of Labour stopped prosecuting strikers (see Bert Roth’s books and Gordon Andersons). Workers walked out all the time to defend their fellow workers, over job losses, all sorts of things, and these were unlawful strikes that theoretically could lead to prosecution and penalties. So what’s changed *isn’t* mainly the law – it’s the balance of class forces and the diminishing of shop-floor organisation and working class solidarity”. Yes, that’s a good way to put it. The law has changed – the ECA and the Employment relations Act made illegality of most strikes explicit. And when they did that, union officials frequently said to leftist anti strike law campaigners “don’t worry about that, if we need to go on strike against the law we’ll just go ahead and do it.”Bur they never did. This cycle of tightening laws and refusal to fight the stages of that contributed much to the decline of workers power that you point to.

  3. But don’t the law changes reflect, and then intensify, the changes in the balance of class forces.

    I think the question of workers’ consciousness is vital too, in that the consciousness of workers in this country today is a result of an extended period of defeat, downturn, demoralisation that opened with the victory of Labour in 1984. Before that, unions had largely held the line against attacks by Muldoon’s National Party and, while he eagerly deployed anti-union rhetoric, Muldoon didn’t actually move all that much against unions and union rights.

    Labour reigned down the biggest assault on workers’ rights since the Depression. Instead of provoking workers’ resistance, this assault tended to promote union confusion, demoralisation and collapse of resistance. Moreover, the ostensibly anti-capitalist left, part of which was heavily-based in workplaces, including key industries, were unable to grow and take advantage of Labour’s blatant exposure of itself – after all, most of them had enthusiastically supported the election of Labour and called on workers to vote for the Labour toe-rags.

    In fact, what happened was that most of the larger ostensibly anti-capitalist groups confused and demoralised their own members and basically collapsed (SAL, WCL, SUP). Killed by their own support for Labour! Or by their unwillingness to rethink what they had done, as Marxists would. The CPNZ was different because they had a much more hard line of hostiity to Labour. Unfortunately, they subsequently blew that because, after they dumped Albania, Mao and Stalin, they hooked up with a Labour-loyal group in Britain and began moving rightwards to ground not dissimilar to what had been once occupied by the SAL. And that eventually brought them to the same ignominious conclusion.

    One of the things about Don’s original article is that it isn’t written from a trade union consciousness, but from an anti-capitalist perspective. Like Don says, we don’t need more trade unionism; we need more critical reflection and from ostensible Marxists we need more Marxism. That’s why there is no little set of prescriptions for how to build the union movement in the 21st century, like John Kerr seems to be demanding from the article.

    We now have objective and subjective conditions which are not favourable for rebuilding the old union movement, and people trying to do that are not going to succeed, especially unreflective younger elements who think they know much more than they do and who have a lack of curiosity about revolutionary ideas. But nor, in the absence of much struggle – there will always be *some* struggle – is it possible to work out where to go next. But it is helpful to analyse where things went wrong – and where not to go again.

  4. Discussions on unionism and union density could include a class analysis of NZ. Some of this can be discerned statistically, the division of labour, self employed, SMEs, who owns what etc. The largest unions currently are public sector, run significantly along models of “partnership” and class collaboration. Unite and First are private sector that buck that trend. There has been member fightback in state education, particularly against Charter (privatised) schools, bulk funding, and national standards.

    Inequality figures too, in 2019 the bottom 50% of New Zealanders owned a mere 6% of wealth. There is more precarious, short term, digital, contract based work now, as opposed to the classic 1940s/50s/60s70s stable full time industrial/workplace type employment, single earner & family scenario. Harder to sign up Uber drivers and dog walkers. I mention this to focus on what is actually possible in terms of union density on a good day in NZ in 2020. In utopian moments I think what about lifetime union membership? where your fee fluctuates between paid and unpaid work, and your support network changes form, but you remain attached to a social entity and movement regardless…

    Unions are generally in a tight spot. They are swimming against the tide of capitalist ownership, aspirational small business, and the neoliberal state, and trying to leverage more off the owners surplus value, and empower members generally–without necessarily having the ideological stance to handle what that really means. The NZCTU for instance is about to discover that their support for NZ Labour will not be rewarded with their coveted “Fair Pay Agreements” unless they can organise some significant industrial pushback.

    A minority of unions have some elements of class conscious leaderships and members. But even the most class left union is always up against it unless wider support is sought and gained. Mass movements are where it is at ultimately and the Climate Crisis gives hints of one developing that could be expanded into anti capitalist organisation.

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