It's legal to insult an employer in wage negotiations

Tuesday, 22 January 2019

The inflatable rat has had a few outings around the country.

The Employment Court has given unions the go-ahead to insult employers during wage negotiations.

Workers' representatives were also within their rights to use giant inflatable rats as part of their protests without fearing they are breaching 'good faith' while bargaining.

Kaikorai Service Centre, which trades as Pak 'n Save in Invercargill, complained to the court about First Union's use of a giant inflatable rat in protests after wage negotiations stalled in 2016.

Around the rat's neck hung a sign reading: 'Don't be a rat Mr Dobson'.

Kaikorai Service Centre, owner Bryan Dobson, claimed use of the inflatable rat, and a sign referring to 'Pak 'n Slave' breached the Employment Relations' Act requirements for negotiations to be conducted in good faith.

But judge Kerry Smith said the Act did not 'regulate, restrict, or confine' the way either employers, or workers' representatives communicated.

'While there is likely to be a point where what has been said or done is so offensive or undermining that good faith is breached, the duty does not require bargaining to be undertaken in a courteous way,' Smith said.

First Union has a giant pig too, which it used in protests over pay at ANZ in 2014.

'It does not require using polite language, or to resist robust position-taking, or avoiding a combative style.'

The union argued the use of the rat inflatable was part of an international tradition.

The use of a cartoon-style rat was a common means of industrial protest in New Zealand and elsewhere, such as in North America, it told the court.

The rat's purpose was to publicise the industrial dispute not to insult Dobson, the union argued.

First Union members picket outside New World in Vanguard Street, Nelson, in 2016.

Instead, it was a legitimate tool to bring pressure to bear.

The union also argued the rat and a sign referring to Pak 'n Save as 'Pak 'n Slave' could not be seen as defamatory.

Smith said Kaikorai Service Centre took exception to the rat and sign, and claimed breached good faith.

'As to 'Pak 'n Slave', while the company submitted the slogan breached the duty of good faith for likening the business to slavery, the union considered that statement to be part of attempts to use legitimate pressure and was no more than a commonly used corruption of a well-known trading name reflecting a reputation for paying low wages.

'I agree with the union that the slogan did not breach the duty of good faith. It was an attempt to publicise the industrial dispute to obtain some leverage and nothing more,' Smith said.

'It needs to be borne in mind that the union, and its members, enjoy a right of free speech which they were entitled to exercise. That is not to say that industrial relations should be conducted in some sort of open slather where any sort of behaviour, no matter how egregious, must be tolerated,' the judge said.

The dispute was part on an ongoing legal battle started when the union took a case to the Employment Relations Authority claiming Kaikorai Service Centre had breached the good faith provisions of the act by refusing to include wages in collective bargaining.

The authority agreed, but Kaikorai Service Centre appealed, and won.

The union has appealed that decision to the Court of Appeal.

The rat actually belongs to the Unite union, which lends it to First Union from time to time. First Union owns a big fat inflatable pig, which it used in protests outside ANZ branches in 2014.

The rat was repeatedly used by First Union. Each time a different store owner was named in the sign.

The giant inflatables can be sourced from companies overseas, and are regularly used in American worker protests/

Justifying the use of the inflatable in wage protests, First Union said: 'When employers behave badly, certain types of animals come to mind – a greedy pig, a devious rat. Giant blow up representations of these animals outside their stores draws public attention to this bad behaviour and are intended to make employers think twice about their treatment of workers.

'It's also a bit of tongue and cheek, while not taking away from the seriousness of the issues workers are raising. It's important workers have these tools available to them when the normal course of action, dialogue or negotiation, is just not getting a response from the employer.'