Attending a hearing--a delegate's perspective: part of the role of an NZNO delegate can be appearing as a witness at a range of hearings. Here one delegate shares her experience of giving evidence at an Employment Relations Authority hearing and what that involvement meant.

I am a community support worker employed in the mental health sector by a non-government organisation, the MASH Trust Board in Palmerston North. The majority of our members are support workers and I, along with co-delegate Jeanette Watkins, have been working hard to boost NZNO membership and encourage collective participation among members. The trust provides community-based health and disability support services for people with psychiatric, physical and intellectual disabilities. These services include supported accommodation for nearly 150 people in Manawatu, Horowhenua and Wellington.

We have a collective agreement, covering around 45 members. The agreement has, for the past four years, included a clause relating to "right of entry" by union officials, to the houses where memebers work. It reads: "When requested, MASH shall permit the NZNO officials to enter at all reasonable times upon MASH's premises to discuss employee relations matters with an employee, provided such access does not interfere unreasonably with MASH's business."

Right of entry to workplaces

This year, the NZNO organiser responsible for MASH members, Jane Swift, decided to exercise this right of entry and visit MASH workplaces. As the residential sites are scattered throughout Palmerston North, Levin and Wellington and it is sometimes difficult for members to attend stop work meetings, Jane thought it would be a good way to talk to everyone before collective bargaining. She also wanted to see our workplaces and check out how things were for members regarding employment relations. Unfortunately, MASH hew the view that union officials entering the houses may affect client well-being and that there was a potential risk to visitors, due to clients' unpredictable behaviours. Based on this view, Jane was denied access to the workplaces. The trust also claimed that MASH houses were dwelling houses under Section 19 of the Employment Relations Act and therefore excluded from the general right of access under the terms of Section 20 of the Act. NZNO disputed this. At the end of the day these are workplaces and members are employed to work there!

Prepared to take issue further

Mediation was unsuccessful as neither party was prepared to concede its position. The next step, therefore, was the Employment Relations Authority (see box on p21). We felt strongly about this issue and were prepared to take it further. Not only was there the clause in our collective agreement to uphold, but we also felt this was a statutory right no employer had the right to refuse. Preparation for the authority hearing was lengthy and detailed, requiring many phone discussions with NZNO legal adviser Jock Lawrie. There was also a steady stream of emails and faxes, with documents to check and re-check, and statements to revise and procedures to explain. Finally the day came. This was our opportunity to participate in an event that not many delegates are fortunate enough to experience. Advocating for and supporting members in the workplace is one thing--appearing for NZNO in a legal setting and giving evidence "against" your employer is quite another!

I felt a mixture of emotions. I was proud to be representing members. I was excited and enthusiastic to be taking part in the hearing and I was interested in learning as much as possible about the process. Because I believed strongly that the action we were taking was right, I didn't feel nervous or afraid. My only concern was that we might not win, despite our strong case. After all, a loss would have meant the immediate removal of the access clause.

The hearing was hew at Caccia Birch House, an historic and beautiful old homestead in four acres of beautiful gardens overlooking the Hokowhitu Lagoon in Palmerston North. The rooms were elegantly decorated and ours was cosy, with a brightly burning gas fire directly behind our seats.

There was a lot of bustle from the various groups using the house that morning and it was difficult to figure out who was supposed to be where. At one point I helped myself to coffee from the wrong urn!

I found it interesting that, while there was a "court-room" style to the event and everyone was formal in their interactions and all witnesses were required to either swear or affirm an oath before giving evidence, the comfortable room somehow softened the formality. There were lots of peppermints in little bowls and water jugs on the table and we had coffee breaks (adjournments) which enabled us to go out and enjoy the gardens.

The hearing didn't take very long. The employers and their witnesses gave evidence first. There were eight of them, including Employers' and Manufacturers' Association lawyer Cameron Stuart. We had four witnesses: Jeanette Watkins, Jock Lawrie, Jane Swift and myself.

Their lawyer opened with the claim that the properties were client homes and therefore dwelling houses. He suggested that union officials visiting the staff would be an unreasonable intrusion on client privacy and that, as the clients suffered a range of conditions, visitors' safety may be compromised. He argued that the employer had offered the use of head office for meetings and, in essence, claimed that the statutory right of access under Section 20 did not include right of access to client homes. The employer believed a union official walking through the house to reach the staff office would meet residents and may be at risk of upsetting them. There was even some debate around whether or not the employer was the actual tenant, as opposed to the clients who live there. We, on the other hand, insisted that these houses were where we report for work each day, (why else are we there?); that the residents actually enjoyed visitors and that there had never been any incidents resulting in actual harm to them or visitors. NZNO lawyer Jock Lawrie submitted that while parts of the premises were clients' homes, the staff room did not meet the definition of a dwelling house and was properly viewed as part of the workplace. There were health and safety regulations, fire drills, a hazard register and a visitors' book for all to sign when entering the property. Clients did not have the freedom to come and go from the staff office, unless a staff member was present and the door was locked when staff left and also at night during sleepover shifts.

I rebutted the employers' claims about client safety and the risk to visitors.

After all witnesses had been questioned, authority member Greg Wood had enough evidence to consider and the hearing ended. We then re-convened at a local pub for a "debriefing" lunch and a good discussion about the process. We felt very confident we would win.

The Authority's determination

It took about three weeks to learn of the Authority's determination, which ruled in favour of NZNO's right of access. A five-page document detailed the points, explained the employment relationship problems and outlined the various facts the Authority had considered. Authority member Wood did not accept the submission that the clients' homes were not the employer's premises, stating that MASH leased the premises to provide homes for clients. Subject to the caveat that there may be occasions where union access would interfere unreasonably with MASH's business, he determined the dispute in NZNO's favour.

In conclusion, he determined that "the NZNO is entitled to access to staff offices and sleep-over rooms in client homes, in accordance with sections 20 and 21 of the Employment Relations Act." He also determined that "NZNO is entitled to access to all of MASH's premises, including all client residences, to discuss employee relations matters, provided such access does not interfere unreasonably with MASH's business."

This is exactly how the clause is worded in our collective agreement.

My relationship with the employer has not changed since the hearing. We have just completed successful negotiations for a new collective employment agreement in an amicable way. I am confident our members appreciate what the implicaitons would have been if NZNO had been denied entry to MASH houses. Althought I guess such legal issues will never have the same impact at a personal level as pay increases and better conditions.

But as a delegate, this experience was very rewarding, personally and professionally. I learnt so much by being a part of the process. I was proud to be representing the rights of my fellow workers. But the most empowering aspect of whole issue was seeing that, as workers, we had the ability to legally enforce what we had originally negotiated.

RELATED ARTICLE: 'A huge victory'.

For NZNO organiser Jane Swift, the Employment Relations Authority determination was a "huge victory."

At the beginning of the year, Swift assumed organiser responsibility for NZNO members employed by the MASH Trust Board. In March this year, a new delegate asked her to come and talk to members at their staff meeting, in one of the houses. This had not happened before, with NZNO meetings being held away from the houses. Swift agreed to the delegate's request. As she was about to to go to the meeting, she rang the MASH human resources manager, who refused her entry. "I was extremely surprised."

Mediation failed to resolve the issue and the Authority hearing followed. "The Authority member did his best to put everybody at ease. It was a relatively brief hearing, around three hours. I was very pleased with the outcome. It was a huge victory. I have subsequently been to some workplaces and more visits are planned."

The Authority hearing has had a big impact on the relationship with the employer, Swift said. "I think they were shocked that we followed it through to the Authority. But it was important to do so because if we had been denied access, it would have had major implications for our members."

Collective agreement negotiations have recently been concluded amicably. "I think it would be fair to say that both parties are working on improving the relationship."

RELATED ARTICLE: What's the Employment Relations Authority?

The Employment Relations Authority was established under the Employment Relations Act (ERA) 2000. It is an investigative body which, according to the ERA, "has the role of resolving employment relationship problems by establishing the facts and making a determination according to the substantial merits of the case, without regard to technicalities."

In most cases, mediation must have been attempted before going to the Authority. Membership of the Authority consists of one member, who is the chief of the Authority, and at least two other members. For matters within its jurisdiction, the Authority consists of one member. Each member of the Authority is appointed by the Governor-General, on the recommendation of the Minister of Labour.

The Authority can use a variety of ways to sort through issues, including calling for evidence from the parties or anyone else; holding investigation meetings, and interviewing the parties or anyone else. At any stage in the proceedings, the Authority can direct the parties to try mediation, whether or not they have already done so. There is an application fee of $70. An applicant has to fill out the Statement of Problem, explaining in ordinary language what the problem is. The Statement of Problem, along with the fee, is then sent to the Authority. The Authority sends a copy of the Statement of Problem to the other party, who must provide a Statement in Reply, again in plain language, within 14 days. The Authority can contact either party to clarify points made in their statements. It may hold a "pre-investigation conference" by phone or other means, to resolve some issues or to discuss procedures for investigation of the problem. The Authority has offices in Auckland, Wellington and Christchurch.

Denise Edgecombe, is a community support worker for the MASH Trust Board, working in a residential home in Palmerston North.