Unite Union wants answers from the government as to why hundreds of thousands of workers are still waiting to have the annual leave stolen from them in the past restored.
It is three years since Unite first wrote to major employers in the fast food industry telling them that they were miscalculating annual leave for their staff.
It is two years since MBIE, the government agency responsible, admitted being in error in the payment of their own staff.
Last week we discovered that the firm Xero, who provide accounting software for a third of all New Zealand small businesses as well as online payroll services, have sent us and other employers their method for calculating annual leave and it means employers will get many workers annual leave just plain wrong. This firm may be de facto the largest payroll provider in the country with hundreds of thousands of clients.
Kaylee Tantrum (17) was backpaid just over $1000 for work that was not assigned to her because her rostering documentation was falsified without her knowledge.
Kaylee, who works at a McDonald's restaurant in a food court in Wellsford told Unite union organiser Gary Cranston that she was instructed to write her signature on an availability form that was later found to have a minimum hours of work per week written on it, as if she had agreed to this prior to signing it.
"I was instructed to sign it before the new number was written there." - "I signed my new form before the new security of hours (4) was written there. I also did not agree to 4 hours being my security of hours. I have enough time for my studies and would never have agreed to make my hours 4 for this reason." - Kaylee Tantrum
To make things worse, once contacted by email by Unite union, the Restaurant Manager, Mr Rajinder Singh attempted to hold an unscheduled private meeting with Ms Tantrum without a support person present. Mr Singh told Ms Tantrum that she was incorrect and that her number had been "miscalculated". He then went on to deny having received Unite's email raising the matter, claiming that his McDonald's email address wasn't working.
In Kaylee's case her number was changed without her consent, agreement or knowledge and this resulted in a significant drop in her weekly rostered hours for a number of months as they were then cut below what her weekly secure hours number should have been set to. This meant that Kaylee had to be available for shifts at short notice in an attempt to stop her income from dropping.
Such "security of hours" numbers were introduced by Unite union as part of the outlawing of Zero Hour contracts at McDonald's in 2015. Unfortunately it isn't the first time we've discovered workers having their secure hours manipulated without their (required) consent.
"We have discovered many cases of McDonald's workers having their guaranteed hours number changed by store management without the knowledge or agreement of workers" said Mr Cranston. "This seems to have been done in order to drive down worker's secure hours per week, giving store management increased control over a worker's income and leverage over worker's rostering arrangements that used to be enabled by zero hour contracts."
While Unite union is proud to announce that we have since secured 100% guaranteed hours for workers in this year's contract negotiations (it was previously a guarantee of o80% of hours worked prior) this is still dependent on accurate record keeping and good faith based arrangements between workers and store management because workers and management can mutually agree to change a worker's guaranteed (minimum) hours of work per week.
Several other workers have come forward saying that the same thing happened to them since and Unite union is pursuing these complaints.
If you work at McDonald's and suspect that store management have altered your secure hours number without your consent you should contact your Unite union organiser immediately.
"We will be pursuing all cases of falsification of worker's guaranteed hours numbers as cases of fraud going forward", said Mr Cranston.
One worker has been backpaid and several others are waiting to be paid for working illegal, unpaid pre-employment work trials and other unpaid work at McDonald's New Zealand's newest restaurant. Workers had to attend compulsory unpaid meetings and work for free cleaning the restaurant in preparation for opening day.
Heidi Louise Batt worked two unpaid 4 hour shifts without being told that she wouldn't be paid prior. She wasn't told that she was rejected for the job until she asked to be paid. It was the first job she had applied for in her life.
Initially claiming that a manager had made a mistake, McDonald's Franchisee Dinesh Mani paid Ms Batt at the request of Unite union, later admitting to running illegal work trials as part of the franchises normal hiring processes.
Mr Mani, who's family helped him buy his first McDonald's restaurant already owned four McDonald's restaurants before opening the controversial Te Atatu restaurant. Over 1400 people signed a Change.org petition in support of Te Atatu Peninsula residents campaigning against a 24 hour drive through McDonald's restaurant being built in their neighbourhood.
"Mr Mani has made tremendous amounts of profits from West Aucklanders hard work. McDonald's NZ made $52.8 million in profit in 2016. He should pay all workers for all of the the unpaid work they were required to do, no questions asked." said Gary Cranston, Unite Union Fast Food Organiser for West Auckland and Northland.
Update: 29 June 2017
Unite Union has since received assurance from McDonald's head office that Mr Mani has been spoken to and union members will be paid for all unpaid work they undertook at the Te Atatu McDonald's restaurant.
Fast Food Organiser West Auckland & Northland
029 4555 979
McDonald's and Unite Union Collective Agreement Ratification Vote.
The Unite Union bargaining group of ten workplace delegates along with two union officials recommended the following offer from the company for adoption by members.
98% of members who voted endorsed the agreement.
The changes will significantly improve the pay and working conditions for members.
The changes include the following:
1) A ratification payment of either $200 or $300 depending on hours worked.
This payment is in recognition of the work union members have made in getting this improved agreement and allowing the company to pass on the terms to non-union staff.
Staff working an average of 30 hours a week or more get $300, all others get $200. Hours are calculated over the 8 weeks prior to final ratification
All Unite Union members at McDonald's get this payment if they are a) current employee of McDonald's, b) current union members and c) employed by McDonald's and a member as at April 13, 2017.
The payment will be paid within 14 days of signing the agreement. This should happen before the end of June.
2) Pay increases of the minimum wage plus 10 cents each year for three years.
This year the minimum wage went up by 50 cents. That means this year's payment has been 50 cents plus ten cents on all rates from April 1. In a good faith measure, this has already been paid to all union members. All rates above the minimum wage will increase by the same dollar amount – the 60 cents paid this year.
This is the first time the start rate in the fast food industry has been above the minimum wage. By the end of the agreement, the start rate will be 30 cents an hour above the minimum wage. This is a modest, but significant, step forward.
The company started paying to non-union staff before union staff as a weapon to put pressure on us to settle early. That pressure did not work. We had a few resignations but that means the people who resigned will not get the pass on payment.
3) 100% guaranteed “agreed hours” each week every week.
Every worker will have a guaranteed agreed hours number. This will remain unchanged, except by mutual agreement. For existing staff, this will begin with the Security of Hours number. A discussion will be held with all staff to find out what the guaranteed hours' number they want is and how it can be achieved. This process will be completed by the end of 2017.
All new staff will indicate what guaranteed hours number they want. An agreement will be made on what hours are agreed initially.
Any hours rostered above the agreed hours' number can be refused.
Requests to increase of decrease the guaranteed hours' number can be requested in writing at any time.
Preferred working times, currently termed “availability” will also be agreed at the time of employment. This could change if the union is successful in a court case claiming that under the new laws adopted to end zero hour contracts compensation should be paid for “availability”. It is probable that if we are successful, the company may shift to a guaranteed shifts system where you work the same roster each week.
4) Additional available shifts to be notified electronically before new staff are hired
This change important if we want to be able to get offered more guaranteed hours than initially agreed. Previously we had no way of tracking if the company was genuinely offering hours to existing staff before hiring new staff. This should be fixed if managers have to electronically notify all staff they plan to hire new staff. Staff can put their hands up for the additional shifts and managers would need a reason not to give them to existing staff first.
5) An alternative holiday if you work three out five of the previous public holiday days
Currently, if a public holiday falls on a Monday you have to have worked three out of three previous Monday's to earn an alternative holiday (or “lieu day”). Now you just have to work a majority – three out of five.
6) Improved annual leave calculations
This was a big area to clean up. Currently, because your leave is calculated in hours, it has meant that workers may have been missing out on paid leave.
They should have been calculating leave in weeks and paying “the higher of” you average weekly pay for the year or the average of the last four weeks pay. If you had improved your hours from say 20 a week when you started to 30 a week when your leave was taken all leave should have been calculated at 30 hours a week – not the year's average of say 25.
This will happen in the future. Workers will also have their old leave recalculated to ensure they get paid back any money owed.
7) Taking breaks should be 15/30/15
A clause has been added to make clear the preferred break schedule in 15/30/15. Managers should not be rostering a 30 soon after you start just for their convenience. If you don't reach agreement on when breaks are to be held you can insist that they are spread evenly through the work period.
We also agreed to a small concession to the company over when the break entitlements kick in. This will now be for shifts of three or more for the first paid break, six or more for the meal break, and seven or more for the second paid break.
8) Paid meal break clarified
There was a clarification around when the entitlement for a paid break applies for people working nights. These will now be a right if you work a majority of the shift between 10.30pm and 4.30pm. Previously some workers got it for working any hours between 11pm and 4am. At other stores, you had to work the whole shift and be rostered a meal break during that period. The compromise clarifies it. Stores can still apply the more liberal interpretation.
9) Redundancy Payment
A two-week redundancy payment if a store closes. This is a small first step in this area.
10) Other issues
- Parental leave improvements in the law made clear in the agreement.
- Two-weeks notice of termination to be required. But the penalty for non-compliance remains no more than two-shifts pay.
- Agreement to develop a standard on-line leave application form.
- Posting of rosters by the Tuesday evening, 12-days in advance.
- A system to be developed for elected health and safety representatives in all stores
Fast food companies are trying to wriggle out of legal and contractual obligations around basic rights of workers to guaranteed hours and annual leave.
Unite Union has started bargaining with McDonald’s and Restaurant Brands over the renewal of their respective collective agreements.
McDonald’s has refused to make an offer around pay until the results of a court case the union took against them this week are known. At the same time, they are giving all non-union staff a 60c an hour pay rise (ten cents above that mandated by the legal minimum wage increase) but not applying that increase to union members except if they are currently below the new minimum wage of $15.75 an hour (which they legally must pay)
Union members at McDonald’s voted overwhelmingly this week in favour of industrial action if necessary to move the company.
The court case against McDonald’s has become necessary to force the company to accept the meaning of the law change outlawing zero hour contracts. Companies were given until April 2016 to change the employment agreements for staff on Individual agreements to comply with the law. When Unite saw the new agreements we did not believe they met the requirements of the new law.
The ban on zero hour contracts followed a successful campaign against them by Unite in the fast food industry in the 2015 bargaining over the collective agreement. Until that year’s negotiations, the companies had been able to run a rostering regime without any guaranteed hours of work. By the end of that bargaining round all major fast food companies – McDonald’s, Restaurant Brands, Burger King and Wendy’s – agreed to bring in guaranteed hours.
There was huge public support for our campaign. It became obvious that tens of thousands of workers were in a similar situation. The government felt compelled to promise to outlaw the “worst aspects” of these contracts. However, they could not get a majority in parliament for their initial proposals and had to reach a deal with the opposition parties to get the law through. The compromise agreement went much further than they initially intended.
The new law said all employment agreements needed to include guaranteed hours. If workers were expected to be “available” for work they needed to be paid reasonable compensation for that “availability”. If there was no compensation paid then the worker had the right to refuse the work offered.
McDonald’s has tried to wriggle out of the legal responsibility by minimising the guaranteed hours being given. We had copies of around 100 staff who signed up with the company after the new law took effect in 2016 and then joined the union. Often the guaranteed hours were a few as three. On average, it was about 20% of the hours the staff were available to work.
McDonald’s offer of employment has a heading called “Availability” where workers list all the hours they can work in any week. They are encouraged to maximise their “availability” to get work. Some staff have 24-7 “availability”. But no compensation is being paid. The company argued that because the new agreements had the right to turn down work rostered in addition to their guaranteed hours this meant they did not need to pay for the availability.
The union argued that this was not the case. Even the guaranteed hours are being rostered within a workers “availability”. It doesn’t matter if they have the right to turn down additional work (which we don’t accept actually exists) because all the hours the worker must work are within an availability clause that must be compensated for. Otherwise, the intent of the new law could be easily subverted – as McDonald’s is in fact doing.
Because this is a new law and some of the language lacks clarity, this case is being seen as a test case that will help determine the true meaning of the law for many workers. A full bench of three judges in the Employment Court heard the case and we hope for a decision with the next few months.
Unite has also written to the company saying we consider that their decision to not pay union members the same as non-union staff will undermine the collective bargaining and the union’s role in it and is also contrary to Section 9 of the Employment Relations Act which prohibits preferential treatment to non-members. The situation is made worse by discriminatory undertakings given to the non-members that they will receive higher pay increases if the union achieves that in collective bargaining. We warned the company that if they proceeded with this course we will be challenging their actions, including legally.
We have also initiated legal action against Burger King over the interpretation of the collective agreement. When we signed the agreement in October 2015 it had guaranteed “shifts” in the wording rather than hours. We considered this a step forward beyond the McDonald’s agreement. But since the agreement was signed the company has continued to operate essentially the same system as McDonald’s with “hours” being rostered rather than “shifts”.
Restaurant Brands renegotiated their collective agreement after the law was changed to introduce a system of guaranteed shifts. Workers know what their days and hours of work are.
However, we again have problems around ensuring that new staff aren’t hired before shifts that become available by staff leaving are offered to existing staff. This is needed to ensure fairness and transparency and to enable existing staff to get the most suitable shifts to suit their life work balance.
Unite has always had a much stronger presence at Restaurant Brands than other companies. After a major dispute to get our first agreement in 2005-6 we have successfully negotiated without the need to take strike action. It came close on occasion but generally, the company saw sense in the end on the important issues. They were the first to agree to guaranteed hours in 2015 for example. McDonald’s, however, we have ended up in disputes on more occasions than not.
We have also acknowledged that we generally had slightly better wages and other conditions at Restaurant Brands than the other companies and there was a limit on how far ahead we could force the company to go.
The union’s goal this year was to ensure we have a fair system for allocating new shifts which is vital to putting the final nail in the zero-hours regime. We also wanted the company to cease to be a minimum wage employer for new staff and have the living wage there for all supervisory staff at least.
In negotiations this year, however, the company appears to be playing hardball. They are a very profitable company. It is way past time that they cease to be a minimum wage employer for starting staff. Even McDonald’s have said they will start staff at 10 cents above the minimum. It is a matter of public record that RBL has had significant staff shortages over the past year. Their workers have gone above and beyond with many working working long and demanding hours to contribute to the growing profits. Despite this many of their skilled, trained and experienced workers still rely on Working for Families and accomodation supplements to make ends meet. We think they should earn enough to support themselves and their families and that means paying a living wage.
We have been forced to adjourn negotiations and seek a ballot of members on industrial action to advance our claims. Restaurant Brands may well wish they had not unleashed the power of our members in their company. I think some times we need action at all employers at least occasionally just to remind them who creates the wealth they appropriate.
We are also still waiting for all the companies to come back to us on how much they owe staff for incorrectly calculating their annual leave entitlements for years. They all claimed to have appointed external auditors to check what they were paying and if “errors” were made correct them. What they need to know is that there will be no escaping this liability. They will have to do that calculation and report the results to the union . If necessary we will do the audits ourselves and claim the money back through other means. But these companies will be made to pay up in full.
Mike Treen is the National Director and has responsibilities for day to day operations with specific responsibilities for the Fast Food Restaurants and Language Schools.
A 19 year old Unite union member has reclaimed over $1200 in backpay after complaining that she wasn't rostered at all, for three weeks in a row.
Stacey, who works at a McDonald's in West Auckland should have been rostered 24.5 hours per week under the secure hours system in the collective agreement, but was removed from the roster at her store after trying to reduce her availability to work for McDonald's because she secured a second job.
This sort of thing used to be more common with fast food companies casually making dramatic cuts to worker's hours or taking them off the roster completely in response to worker's wanting to reduce their availability to work for them. Now workers can reclaim backpay if they are rostered less than their secure hours number. This has led to many unite union members reclaiming backpay and rostered hours this year.
Unite union members and delegates working at McDonald's are advised to keep a close eye on their secure hours numbers and understand their rights to reclaim backpay if they are rostered less than that number. Unite members should also contact their organiser if they suspect that their secure hours number has been arbitrarily changed without their agreement.
Unite union is now taking legal action against McDonald's for failing to follow legislation introduced to ban the use of Zero Hour contracts in New Zealand. The union has found that McDonald's are putting many new staff on three-hour minimum contracts and refusing to pay compensation for being available to work additional shifts as required by the law. The company is are also refusing to offer hours to existing staff before hiring new staff.
Well done Stacey.
Fast Food Organiser
West Auckland & Northland
029 4555 979
Unite union has made a public appeal for Ronald Mcdonald to make contact about dramatic cuts in his hours of work.
“There are many media reports that, due to the “creepy clown” phenomenon, McDonalds has dramatically cut back on Ronald’s hours of work" said Unite National Secretary Gerard Hehir (see Radio New Zealand: McDonalds not clowning around ).
McDonalds committed to Unite last year that all their workers being guaranteed at least 80% of their usual hours each week. We are asking McDonalds to confirm that they will honour this agreement with Ronald. The creepy clown craze is not Ronald’s fault and he should not have to go back to a zero hours contract and suffer because of it.”
Last month you should have received your guaranteed hours under the Security of Hours clause of the collective employment agreement between McDonald's and Unite Union.
This was a major victory for you and Unite Union in our long campaign for more secure hours in this company and the industry as a whole.
Workers employed at the company-owned McOpCo stores should have received a letter with the number of hours guaranteed going forward.
Workers at franchise-owned stores should have the number included on their pay record.
This number is based on clause 2.1 in the collective agreement which guarantees 80% of the hours worked (up to a 32-hour cap) between 1 July and 30 September 2015. This number will be recalculated on Dec 31 and at the end of each three-month period from then on (view the McDonald's Unite Collective Agreement here).
We believe workers should be able to increase their hours to the number they want.
For this to happen it is important that a second part of the collective agreement is also applied. This stipulates that "Where additional hours become available in a restaurant, current employees will be offered additional shifts before new employees are employed."
The collective agreement also stipulates that "where practicable additional shifts will be notified to new employees on the crew notice board."
Notices have been prepared by McDonald's head office and made available to franchise owners and managers to use to ensure this happens. (You can view the company "now hiring" notice here and Security of Hours letter here ).
Make sure additional hours are being made available in your store before new staff are hired. Contact Unite if this is not happening.
A major survey of fast food workers in New Zealand has exposed the reality of “Zero Hour Contracts” for workers and some of the myths used to justify them.
Over a thousand fast food union members working for the major brands in New Zealand responded to Unite Union’s online survey, with nearly 700 giving detailed information on their working hours over the previous four weeks. That is the biggest response Unite Union has ever had to a member survey.
2014 was a massive year for Fast Food workers in the U.S. Two McDonalds’ workers from Los Angeles are visiting New Zealand to tell the story and work with fast food workers in New Zealand to keep building the momentum.
Genoby Jaimes, 27, has worked at McDonald’s for 6 years and only makes $9.75 an hour. She is a mother of a six year old son. Anggie Godoy,19, has worked at McDonald’s for a year and makes $9 an hour.
They will be speaking at the National Fast Food Workers day on Sat Feb 14th (9am, Trades Hall, 147 Great North Road, Auckland, Link Here). They have just been in Wellington meeting with Union Leaders and meeting MP’s at Parliament.
The U.S. campaign has many reasons to celebrate over the past year:
The movement went global- 230 cities, 33 countries, 6 continents.
They shut down McDonald’s headquarters.Read more