Hochtief V New Zealand Amalgamated Engineering, Printing and Manufacturing Union

Overview

NCP Decision Rejected
Current Status Closed
Date Submitted 03/09/2009
Date Closed 16/02/2010
Case Duration 23 weeks and 5 days
Host Country New Zealand  (OECD member)
Sector Telecommunications 
Issue(s) The use of 'dependent contractors' to undermine freedom of association and ability to bargain collectively in violation of ILO Conventions 87 and 98 and to avoid financial responsibilities
Provisions Cited I.10  II.2  II.4  IV.1-a  IV.1-d  IV.2-c  IV.4-a  IV.4-b  IV.5  IV.8  VII.4  X   
Case Description On 3 September 2009, the New Zealand Amalgamated Engineering, Printing & Manufacturing Union Incorporated (EPMU) submitted a case to the New Zealand National Contact Point (NCP) regarding the activities of a subsidiary of the German multinational Hochtief, Visionstream Proprietary Limited (Visionstream), which is based in New Zealand.

The issues concerned Visionstream’s business model of engaging technicians under service contracts rather than employment agreements. EPMU alleged that by offering such contracts, Visionstream failed in its duty to engage with the EPMU for the purposes of collective bargaining and prevented workers from forming and joining trade unions. EPMU alleged that Visionstream has also thereby failed to provide for human capital formation and has avoided tax liabilities.
Developments The New Zealand NCP carried out its initial assessment process, which comprised the following steps:

i) carrying out a desk-based assessment of the complaint
ii) meeting separately with the parties to communicate progress and to collect any additional information
iii) conducting a final review of all information received
iv) communicating its decision to the parties.

On the 16 February 2010, the NCP issued a draft decision, which it sent to the parties for comment.

The draft decision stated that "[T]he issues raised in the EPMU submission do not merit further examination and therefore the NCP has decided not to proceed further with the specific instance".

The NCP determined that ''dependent contracts' represent a legitimate business model and do not in themselves breach the Guidelines. Moreover, the NCP did not find any evidence of discrimination resulting from the use of such contracts.

The NCP also noted that more appropriate mechanisms existed for dealing with the specific issues raised and that, therefore, any mediation on its part would represent unnecessary duplication.

Organisations

Lead NCP New Zealand NCP : Single Department with Multi-stakeholder Advisory Board 
Supporting NCP Australia NCP : Single Government Department 
Supporting NCP Germany NCP : Single Department with Interagency Working Group 

Companies

Multinational Company Hochtief (Home country: Germany)
Subsidiary Visionstream (Home country: New Zealand)
Subsidiary Leighton Holdings (Home country: Australia)

Complainants

Lead Complainant New Zealand Amalgamated Engineering, Printing and Manufacturing Union : National Sectoral Union 

TUAC Analysis

Did the NCP publish its initial assessment?
Did the case involve parallel proceedings?
Was the existence of parallel proceedings an obstacle to the NCP accepting the case?
Was the businsess relationship other than that of a subsidiary?
Was the nature of the business relationship an obstacle to the NCP accepting the case?
Did the NCP inform other relevant government departments about its acceptance of this case?
Did the NCP offer mediation or conciliation?
Did the company accept the offer of mediation or conciliation?
Did the complainant(s) accept the offer of mediation or conciliation?
Was mediation or conciliation held?
Was mediation or conciliation conducted by a professional mediator?
Did the parties reach agreement?
If yes, did the NCP publish this agreement following the consent of the parties?
If mediation was refused or failed did the NCP make an assessment of whether the company had breached the Guidelines?
Did the NCP conduct in-host country fact finding?
Did the NCP make recommendations to the company on the future implementation of the Guidelines?
Did the NCP publish its final statement or report?
Did the NCP provide for follow-up of the agreement/recommendations?
Did the NCP inform other relevant government departments about its final statement or report?
Did the NCP inform public pension funds about its final statement or report?
Did the NCP apply any consequences in this case?
Did the NCP follow the indicative timescales set out in the procedural guidance?
Was there a positive outcome for the workers involved in this case?
Did the filing of the case under the Guidelines have a positive impact for the workers involved?
Did the lead NCP play a positive role?
If different, did the home NCP play a positive role?

Implications

The decision that the Guidelines do not apply to 'dependent contractors'