News that an employment deal for migrant workers in the construction sector made joining a trade union a sackable offence should by rights have generated disgust and protest, but with a few exceptions the union movement was strangely quiet, writes barrister Greg Lloyd.

I was disgusted – but not surprised – to see reports that an employment agreement for migrant workers seeking employment in the New Zealand construction industry included a provision allowing termination of employment for involvement with trade unions.

Is such a contractual clause lawful? Of course not. Is such a contractual clause enforceable? Of course it isn’t. That is not the point. The point is that in 2018, an employer in New Zealand apparently thinks it is permissible to deny workers their fundamental human and employment rights. And, yes, the right to join or form a union is a human right. Have a look at International Labour Organisation Conventions 87 and 98 if you need convincing.

It remains to be seen if the internal investigation by Allied Workforce CEO Simon Bennett into how the illegal clause came to be in the contracts reveals anything more than what appears to be patently obvious. I really hope that Mr Bennett, who says there was never any intentional proscription, can show that it was a genuine error and Allied Workforce is committed to ensuring all its employees are free to exercise their right to join a union.

I suspect, however, like many in HR and management positions, the driving consideration for Allied Workforce was its desire to retain absolute control over the structure and form of the employment relationship. That necessarily means ensuring workers do not have the ability to flex their collective muscle by forming or joining a trade union.

Since 1991, following the introduction of the Employment Contracts Act (and continued under the Employment Relations Act 2000), that is what employers have been able to achieve. The language used by employers and their advocates is often couched in terms of freedom of choice. The freedom of workers to not join a union, the freedom of individual employers and individual employees to negotiate their own employment agreement, the freedom of individual employees to excel, and employers to recognise individual excellence.

The reality does not reflect the rhetoric. For most non-union workers there is no negotiation. Employers set terms and conditions and the only freedom enjoyed by workers is the freedom to “take it or leave it”. In most non-union workplaces employees have identical ‘individual’ employment agreements. In other words, a collective agreement without collective representation. The only material difference between a unionised and non-unionised workplace (other than the former generally providing for higher wages and better conditions) is that in one terms and conditions are negotiated and the other they are dictated.

Allied Workforce imposed offensive and unlawful terms and conditions of employment on the most vulnerable of workers, so where is the collective outrage from the union movement? What could be more offensive to those fighting for the collective rights of workers than an employer imposing blatant anti-union terms and condition on vulnerable workers? Dennis Maga, National Secretary of First Union, seems to the be only union leader who has spoken publicly about this issue. Why hasn’t Bill Newson, the National Secretary of E tū Union (the union for construction workers), publicly condemned Allied Workforce? Why hasn’t he called a press conference and demanded the sacking of its CEO? Why hasn’t he organised pickets outside their offices? Let’s be clear, “union rights are human rights” should be more than just a slogan. So where is the outrage?

Historically, organised labour was fundamental to ensuring equality in the workplace. Unsurprisingly the decline of union influence over the past 30 years has coincided with the rise of inequality in the workplace, obscene disparity of incomes, the casualisation of work, increased under-employment and Allied Workforce style employment agreements.

For almost 100 years our laws recognised the need to ensure balance in industrial relations. The state, employers and unions had statutorily recognised and equal roles. Equality of power begets equality of outcomes. Not so any more. For the 90% of private sector workers who are not unionised their only recourse, if they have been unfairly treated, is to pay large sums of money to lawyers and advocates in the hope that they may get some semblance of justice. For many the cost and risk is too high, so for them access to justice is denied.

As a lawyer specialising in employment law I see a wide range of bad employment practices. The construction industry is particularly well represented. One of the practices I find most objectionable and which appears to be common in the construction industry, is labelling workers “independent contractors”. By doing so employers relieve themselves of a whole raft of obligations such as paying the minimum wage, annual holidays and sick leave, KiwiSaver, paid parental leave, providing safety gear, unfair dismissal obligations and more.

Like the migrant workers employed by Allied Workforce many workers in the construction sector, who are employees in all but name, are also deprived of their fundamental rights. To highlight the absurdity of this, I have recently seen two examples of apprentice builders engaged as independent contractors. Think about that: workers engaged to learn a trade are being treated as if they are set up in business for themselves.

If the Allied Workforce incident shows us anything it is that the employment practices of the construction sector as a whole need to be looked at very closely by the government.

Greg Lloyd is a Wellington barrister specialising in employment law

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Alex Casey goes on an odyssey to discover the fate of Auckland’s disposable sanitary waste.

Chux cloths. The odd bit of corn. A set of false teeth. It was the worst Generation Game any human had ever played, and I hadn’t even found what I was looking for yet. I was staring into the void at the Watercare treatment plant in Mangere, and the void was full of whatever Aucklanders flushed down their toilets a matter of minutes ago – including an alarming amount of human hair. Then, in the mush, I saw my prize. A tell-tale aqua blue string. A tampon, fresh out of the Splash Planet that is Auckland’s intricate sewage system. Oh the places you’ve been.

If you think people are generally pretty weird about menstrual products, you should have met me at 14. I blame one of my old teachers, whose puberty class consisted of her dropping a tampon into a glass of water and flourishing “voila” like a tired Rainbow’s End magician. That was the extent of it. For the first few months of my period, I was terrified. I hid bloodied knickers and pads in a bucket under the house, periodically pouring bleach on it by nightfall until it dissolved into a deeply toxic mess of human remains. Also, yes, I’m the Zodiac killer, I thought you’d never ask.

You might think, well over a decade later, that I would have my disposal methods under control. I thought I did too, until the drain outside our house started overflowing one fateful morning last year. My boyfriend rang me that afternoon, laughing uncontrollably after calling out a plumber who was probably, definitely called Barry. Turns out I had blocked our pipes right the hell up with Tammy P’s. It was a job so severe that Barry couldn’t use his regular pump, and had to go home to pick up his super-uber-hydraulic pump that probably looked like this.

The ordeal cost $700 and caused a lot of confusion for me. In the aftermath, I frantically asked every bleeder I knew how they got rid of sanitary waste and if they knew where it went. Some scoffed that flushing is completely fine. Some nearly spat on my shoes for even suggesting a flush solution at all, boasting about carrying their waste tucked away on their person like some sort of travelling womb salesman. Others just shrugged and didn’t want to talk about it at all, which was weird considering we still had at least 25 minutes left on a packed train ride home.

Nobody really had a straight answer, so I set out to discover what really happens when we say goodbye to our T’s and P’s.  

My first port of call was to plot out the journey of the trusty domestic bin, handily demarcated by Auckland Council for time-of-the-month disposal with a fetching blood red lid. I called Nicola Strawbridge from the solid waste team at the council, to find out what happens when sanitary waste makes it kerb side. “Anything in the red-topped bin is going into landfill,” she said. “It is not separated in any way, shape, or form.”

Auckland has two landfills, one in Redvale and one in Hampton Downs. Inside the hungry, hungry earth pit, waste is dumped and layered with more earth, more waste, then more earth. A rich trifle of human excess with more than a dusting of methane and leachate. Yummy.

“Because landfills have no air and very little water, things simply aren’t breaking down in there,” explained Nicola. “We manage the landfills as best we can, but this is really not where we want our waste to end up.” She rattled off some truly incomprehensible numbers. Roughly 12% of all domestic waste is nappies and sanitary products. It takes two years for a banana skin to decompose. Anywhere from 20 to 1000 years for a plastic bag. 450 fucking years for a nappy or a sanitary pad.

Safe to say that your corpse will be long gone before your pads and tampons are, folks, carpe diem and livin la vida loca en nouvelle zealande!

If there’s one thing that menstruators love more than dealing with big stinky domestic bins, it’s those charming delicate mystery bins lurking in work, restaurant and cinema toilets. They are frequently called something like Ladycare, Victoria’s Secret or Butterfly Kiss. What happens to those, I hear you cry. Buckle up: they all end up in landfill as well. The operations manager at Ladycare – who takes care of The Spinoff’s Ladybin – explained they too follow council regulations and their waste ends up in “deep” landfill alongside medical waste. Aka, a nightmare pit.

The ladybins are picked up by their uniformed chauffeurs and transported in elegant van style to their private treatment facility. Basically, it’s a lovely manicure for a bin. The contents are emptied, compacted and carted off to landfill in a skip. The bins are sanitised, perfumed, coiffed and ready to go back on the front line again. I don’t know what I was expecting to happen to the contents of those special Gold Class bins, but it wasn’t that. “Years and years ago the waste used to be incinerated,” she explained, “but you can see why we put an end to that.”

So if disposal in every form of bin ends up six feet under, what happens to the Kelly Slater-style tampons that regularly hang ten down the toilet? Because, spoiler alert, bleeders are flushing like crazy. Time and time again I have found myself trapped in other people’s impossibly minimalist and bin-free toilets, faced with an ultimatum. Flush away or charge out into the lounge with blood running down my arms, tampon held up like a sacrificial human heart while I scream KALIIIIMAAAAA as a tribute to that freaky bit in Indiana Jones.

The answer to the flushing question lay in the Watercare treatment facility in Mangere. It was a waste wonderland, with enormous Wonka-esque tubes snaking across the horizon, carrying everything that Aucklanders have flushed down toilets, drained down plugholes and stuffed down their sinks. This is not the chocolate river that you came for, Augustus. I was inducted into the “screens” building, where I was told three “interceptors” meet up in a “confluence chamber” to remove everything that won’t make it through the 3mm screens. Peter Rogers from Watercare looked me dead in the eye. “Anything that’s not the three P’s: pee, poo, paper.”

The screens have caught phones, money, McDonald’s toys, passports, dead pets, golf balls, wipes, sanitary products, and every other hellish item that you’ve flushed down the toilet, you filthy animals. Everything that doesn’t get through the screen then begins a slow journey up a long cylindrical chute, where a spiralling drainer screw dries it all out. This is where I stood on the platform, watching the grim procession go past. Corn! Horrible wipes! False teeth! Carrots! So many carrots! When the mush reaches the top, compact and dry, it is dropped in a bin and… you guessed it… carted off to landfill anyway.

The hardworking screens intercept 1500 tonnes of non-dispersible waste from the wider Auckland region per year, 700 tonnes of it comprised of wipes and 90 tonnes of it comprised of sanitary waste. Wipes are a biggie, too. Just like tampons, once they’re flushed and in the pipes, they refuse to break down. Instead, they catch on imperfections and tree roots, slowly weaving to form a dense rope that creates major blockages. “They advertise them as flushable. They will flush, just like a golf ball or a kids toy will flush,” said Peter, “what they don’t tell you is what happens after.”

Seeing “what happens after” that day was enough to spook me and leave me riddled with guilt. Luckily Liz Peterson from the United Sustainable Sisters – a social enterprise committed to making reusable menstrual products accessible for all – reckons it’s not just my fault alone. “That’s just our culture, isn’t it? We’ve become such a disposable society that we just send stuff away and we don’t think about where it goes.” Her mission is to empower people to make the shift from disposable to reusable menstrual products, acknowledging that it’s not an easy transition.

“I think there’s a real lack of awareness, first and foremost,” she says. “Disposable products have been the norm for a long time but it’s still a taboo topic. We don’t really talk about it, but people are becoming a bit more open as reusable products become more mainstream.” She estimates that over the course of a menstrual lifetime, over 9300 disposable items will end up in landfill per person. She assured me that reusable products – from menstrual cups to washable pads – have become more technologically advanced and user-friendly than the shredded rags of yore.

“It seriously revolutionises your life. I don’t even go down that supermarket aisle anymore,” she said. “I wish I’d made the change years ago.”

Admittedly, so did I. Being faced with the realities of disposable sanitary waste was an exceptionally rude awakening, and staring into the hypnotically churning chute of despair at Watercare made me deeply mad at myself and everyone around me for at least two days. I was grumpy that it’s not something that’s talked about and I was grumpy that it took a whopping $700 plumbing fee for me to think about it for more than three seconds.

But everything’s fine now, I’ve bought a Mooncup and I’ll have to flush heaps of those before Barry gets a call out again.

Just kidding.

The Bulletin is The Spinoff’s acclaimed, free daily curated digest of all the most important stories from around New Zealand delivered directly to your inbox each morning.