Sasha Borissenko: Work to rule clause provoking strike action

OPINION:

Last week 10,000 Public Service Association allied health workers voted to hold a 24-hour strike on May 16 and for a fortnight of “work to rule” industrial action from May 9-20. The strike comes after 18 months of attempts to settle collective agreement negotiations.

Workers have been asking for higher pay, action on safe staffing and retention, and equal treatment with other health professions. Better working conditions for the health sector is beyond the point of plat du jour, it now feels like a broken record.

What on earth is “work to rule”, might you ask? Union representatives have said the work to rule period would mean members wouldn’t be working extra unpaid hours and would be taking entitled breaks. This could be scaled up to include paid overtime and on-call duties. This paints a bleak picture insofar as it suggests the status quo involves regularly working unpaid hours and without breaks.

To recap, allied health workers include public health, scientific and technical workers, as well as physiotherapists, dieticians, alcohol and drug clinicians, anesthetic technicians, pharmacists, laboratory workers, speech and language therapists, and social workers. The group does not include doctors, dentists, or nurses – which have respectively had a suite of union strikes over the last few years.

It’s been six weeks since 20 District Health Boards took the unprecedented step of injuncting the planned strikes, which were originally scheduled for March. The strikes would have seen a range of hospital, community, and outpatient services postponed. DHBs asked the Employment Court to stop PSA members from striking as Covid-19 hospitalisations were rising.

The injunction

In Judge Bruce Corkill’s brief judgment, he ruled the strike was illegal, on the basis it related to an equal pay claim, which was being negotiated separately. Prior to the judgment PSA union members had already lifted the strike action in Auckland following concerns of safety of patients from Counties Manukau, Auckland, and Waitemata district health boards.

For those who are interested in case law, let’s look at the case further. An urgent application was brought for an interim injunction just a few days shy of the scheduled March 4 strike.

The plaintiffs were the 20 DHBs – which, I could only imagine would have been a nightmare to organise – and they asserted the notices issued by the PSA related to an illegal strike.

They said that the requirements of the Employment Relations Act could not be met since the proposed strikes didn’t relate to bargaining for a collective agreement but for a pay equity claim.

Background

The whole saga stems from various collective agreements expiring. Meanwhile, on July 26, 2018, the PSA raised two pay equity claims for the allied workforce. In December 2019 the parties entered into a bargaining process agreement, setting out a process to address the pay equity claims and in November 2020 the Equal Pay Amendment Act came into force.

A bargaining process agreement was entered into in November 2020, with bargaining taking place over multiple dates from November 2020 to August 2021. An offer was made to the PSA on 28 October 2021, which then recommended it be rejected by its members on the basis that there had been a lack of movement regarding the pay equity claims.

Mediation followed and a number of claims were said to be related to the PSA’s pay equity claim. The DHBs said the parts that didn’t relate to pay equity were generally acceptable, noting it wouldn’t agree on the issues relating to pay equity.

The PSA issued notices to strike, which led the DHBs to initiate facilitation with the Employment Relations Authority. There was a conference call, then the PSA confirmed the strikes would continue, which prompted the DHBs to lodge an injunction.

The arguments

Representing the DHBs, Susan Hornsby-Geluk said the balance of convenience favoured the plaintiffs as the strikes would impact on other health professionals and the public who needed hospital care when those services in question were stretched, vulnerable, and at a crisis point.

Representing the PSA, Peter Canney said only some of the issues raised in bargaining touched on equal pay. He said all problems raised by the DHBs had been addressed and went well beyond the prescribed requirements for life preserving arrangements. He said the DHBs delayed filing the injunction just two days shy of the strike, despite having 14 days’ notice.

Workers had been at the forefront of New Zealand’s efforts to deal with the Covid-19 emergency, and had the right to freely exercise their rights.

Judge Bruce Corkill said the Employment Relations Authority had scheduled facilitation the following week, suggesting there was an effective and prompt mechanism for parties to hash out the issues.

Weighing all factors – particularly the public health circumstances, which would be more pronounced as a result of the pandemic – Judge Corkill was satisfied interim injunctions for the strikes should be made.

Where to from here?

Facilitation by way of the Employment Relations Authority failed to find a solution. The PSA has since removed any reference to pay equity from its current campaign (in a bid to avoid a second injunction).

There’s a subtle irony when thinking about the money spent on legal bills for injunctions, which could in theory have been put towards relieving an allegedly undervalued workforce.

The health system has been under pressure for a while now, and well before the pandemic came to the antipodes. Covid-19 has exacerbated the issue, and the resignation of top tier bureaucrats – namely national treasure Ashley Bloomfield et al, gives me increasingly less confidence in Andrew Little’s mother of all restructurings in June. But perhaps it’s the shake-up the sector desperately needs.

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