FPA Submission RBHU
About our submission on the Fair Pay Agreements (“FPA”) Bill
This brief submission from RBHU is structured as follow:
a. Snapshot of the Hospitality Industry: This section is aimed at giving the Select Committee a deeper understanding of the hospitality industry and how FPAs could transform our industry for the better.
- Revolutionary Imagination: Hospo workers in their own words say how FPAs could transform their lives professionally and personally.
- Enforcement of FPAs – we have some questions: This section raises some general concerns of RBHU that the FPA Bill fails to provide sufficient tools for the enforcement of FPA processes and outcomes.
Snapshot of the Hospitality Industry
For many decades, the Aotearoa hospitality industry has been the site of deeply unsafe working conditions where our members are often denied minimum entitlements such as breaks, are exposed to health and safety issues, and exploitation is rife. Our industry also has some of the lowest wages in the country which leaves many of our members struggling to afford the basic necessities of life, such as kai and rent.
The FPA Bill is a once in a life-time opportunity to transform our industry by giving workers and unions the tools to lift minimum standards, improve wages, aspire to put an end to exploitation, and create an industry where hospo workers can thrive, instead of just surviving. Many of our members have expressed support for the FPA Bill and the introduction of FPAs for the hospitality sector. Especially concerning an opportunity to lift wages across our industry and in particular a return of penalty rates and an award system.
But, FPA in theory and on paper will not be enough. We will need proper and robust enforcement from Government agencies. Right now, our current minimum entitlements are barely enforced in our industry. Every single day our members call, Direct Message, and email us stating they aren’t getting their break entitlements, haven’t been paid their accrued 8% holiday pay, or have been underpaid their wages owed. Many of our members rarely, if ever, receive workplace inductions and health and safety issues concerning bullying and harassment are common.
Recent research from the Auckland University of Technology (“AUT”) provides a crucial snapshot of the state of the hospitality sector. From late 2019 to early 2020, AUT surveyed 396 workers in the hospitality and tourism sector. This research was compiled into a report entitled “Voices From The Front Line” and published in early 2022. The research was headed by Senior Lecturer Dr David Williamson from the School of Hospitality and Tourism at AUT, with Professor Erling Rasmussen from the New Zealand Work Research Institute at AUT, and research assistant Camille Palao. RBHU provided assistance to Dr David Williamson on this research.
RBHU is deeply concerned by a number of the findings from this research, in particular:
- 16% had not signed an employment agreement before starting work;
- 18% were not receiving the minimum wage;
- 22% did not get the correct holiday pay;
- 22% were not getting time off or correct pay for working statutory holidays;
- 22% were not receiving the correct rest breaks;
- 81% stated they received no training in their jobs;
- 48% did not get opportunities for promotion;
- 49% experienced or witnessed harassment in the workplace;
- Owners and managers or supervisors were responsible for 40% of the reported harassment;
- 49% did not report harassment incidents;
- 69% were aware of health and safety risks in their workplace; and
- 29% are in temporary/casual employment.
These statistics paint a picture of an industry with vulnerable workers who are routinely exposed to breaches in employment law. These troubling outcomes are the result of a culture where hospitality workers have for decades been considered unskilled or low-skilled workers, which in turn has “justified” the poor conditions and low wages in the industry. But many of our members consider hospitality to be their chosen career and take great pride in the mahi they undertake and skills they develop over many years in the industry. Hospitality workers deserve liveable incomes and sustainable careers. We want healthy workplaces that promote well-being, rangatiratanga, and great work-life balance. We want the Aotearoa hospitality industry to look to the future by creating safe and positive work cultures that provide the backbone of great service that we can be proud of. FPAs are a tool that not only has the potential to remedy significant systemic problems in our industry, but could potentially help us deliver the vision we have for our industry. But without proper and dedicated enforcement, the FPA Bill and any FPAs which are established will be no more than ink on paper.
Many of our hospitality RBHU members have great ambitions and dreams for our industry and how FPA could make those dreams and ambitions a reality. Here is a selection of the feedback we received from our members when we consulted them about FPA:
Kia has worked in the hospitality industry for about 12 years, but he’s been cooking a lot longer than that. He has worked in Returned Service Associations (“RSA”) and top restaurants and has worked in most positions in hospitality kitchens. He started as a kitchen hand and then over the years moved into Head Chef roles. It has been his chosen career and his field of expertise for the last 10 years.
Anne-Lise Mornard-Stott, is a full-time coffee roaster based in Petone. Originally from France, she’s worked in hospitality for over 10-years in restaurants, bars, and cafes before moving into coffee production. Anne-Lise is also a committee member at RBHU, and is passionate about advocating for the rights of hospo workers.
CVR Shastry’s Story
Shastry has worked in the hospitality industry for two years and considers himself a proud hospitality worker. He’s mostly worked in restaurant kitchens as a dishwasher and kitchen hand.
Enforcement of FPAs – we have some questions
1. RBHU fully supports the introduction of the FPA Bill and acknowledges the benefits in particular for low waged and precarious workers. This is especially so in the hospitality industry, which has historically suffered from low union density and a lack of enforcement of minimum standards and rights. However, RBHU has concerns over how the bargaining rules of the FPA Bill and the terms of any FPAs would be enforced. RBHU is concerned that the enforcement would be left to Government departments that are already underfunded such as the Labour Inspectorate and the Ministry of Business, Innovation, and Employment (“MBIE”).
‘Once finalised, MBIE will make secondary legislation to bring the FPA into force, so it will apply to everyone within coverage. People within coverage can enforce their rights through the standard employment dispute resolution system. In addition, the Labour Inspectorate can enforce certain terms of the FPA.’
2. FPAs must be delivered in a manner that is equitable with regard to the Treaty of Waitangi especially, in reference to Article 3: ‘Right to equality before the law’. RBHU specifically focuses on a section of the workforce on low wages working in cafes, bars, restaurants, nightclubs, brothels, and stripclubs. Low and/or precarious wages and low union density in these sectors of work have historically resulted in these workers struggling to access legal information, afford legal representation, and achieve equality before the law. As such, RBHU has serious concerns about how FPAs would be equitably and equally enforced in the hospitality industry. This is especially concerning given that the Labour Inspectorate has been underfunded for decades:
a. In 2017, the Government announced that it would nearly double the number of Labour Inspectors from 60 to 110 over a three year period. However, we directly contacted the Labour Inspectorate on 17 May 2022 (see Article 1 attached) to obtain the exact number of existing Labour Inspectors between 2014 to 2022. We were sent these numbers which show the Government missed its own target:
Please note that this is based on FTE who are actually warrant holders and actually undertaking frontline inspection work. It does not count vacancies, Practice Leaders or Managers.
- Although we acknowledge the number of Labour Inspectors has improved, the Government failed to deliver on its own target of nearly doubling Labour Inspectors by 2020. We are now in 2022 and there are still only 81.81 Labour Inspectors which is significantly lower than the promised 110. With the arrival of COVID in 2020, unlawful redundancies and wage theft demonstrated the need to not only double Labour Inspectors, but also fully fund the Labour Inspectorate and exceed the promised 110 Labour Inspectors and expand to 220 inspectors across Aotearoa. The arrival of COVID only served to compound existing problems of unsafe working conditions, unjustifiable dismissals, and wage theft. These issues could have been mitigated if the Labour Inspectorate had been adequately funded and then expanded, to meet the various needs of vulnerable and low-waged hospitality workers.
- Moving forward, it is vital that the Labour Inspectorate will receive increased funding from the Government to ensure that it can enforce FPAs. However, given how underfunded the Labour Inspectorate has been historically, RBHU has serious concerns that this funding may not be enough to truly secure proper enforcement of FPAs in the hospitality industry and other low waged and precarious industries. Without funding for enforcement, we expect that the same hospitality employers who refuse to comply with fundamental employment law obligations will also ignore any FPA obligations, including any duties set out in any FPAs for roles in the sector. To ensure that hospitality employers comply with any FPAs, the Labour Inspectorate needs the resources to enforce FPAs across the motu. Workers need an army of labour inspectors on the ground, who are visible in workplaces across our industry every single week. For this to become a reality, we recommend that the Labour Inspectorate is fully funded and an
additional 138 Labour Inspectors are hired and trained. We also strongly recommend that the Labour Inspectorate initiates a ‘stand alone’ FPA unit dedicated to FPA enforcement, with sub-units dedicated to roles in precarious industries, including a sub-unit that is solely dedicated to FPA enforcement in the hospitality industry. The FPA Bill should expressly establish this unit and its sub-units. In addition, powers which enable labour inspectors to question employers set out at clause 240 of the FPA Bill should not be limited to determining whether an employee is covered by a FPA, as currently proposed. The FPA Bill should also provide express powers for labour inspectors to question employers and obtain information and evidence on the extent of any compliance with any terms of any FPAs which could apply for any of their employees.