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#Metoo and the need for a lawyers' union

Date: 26/06/2019

The legal profession has faced significant scrutiny over the past 18 months in light of the #metoo movement.  This has been long overdue. The efforts of the likes of Zoë Lawton and Olivia Wensley in particular have been important in highlighting the working conditions and harassment young practitioners can face as lawyers.  

Against this background a group of intrepid young lawyers have now formed the Aotearoa Legal Workers’ Union, or ALWU, provoking mixed reactions.  Given that lawyers primarily exist to advocate for their clients, questions have been asked about why they need a union?

The ability to form and join a trade union is a fundamental human right, set out in the Universal Declaration of Human Rights back in 1948.  As of last month, there were 138 registered unions in New Zealand, covering a broad range of occupations. Teachers, nurses, firefighters and public servants all have their own unions, or in some cases more than one.  There are also unions for senior doctors, professional rugby and netball players, airline pilots, and even one for diplomats.

While union membership has declined over the last 30 years, the number of unions has dropped but then bounced back. In December 1985 there were 259 unions in New Zealand. This figure dropped to under 60 unions in 1992, and has now risen to 138. Union membership overall sits at around 17%, down from over 40% prior to 1990.

So why do people join unions? The reasons can be many and varied, ranging from the philosophical to the practical. For example, some unions in particular professions offer their members specific services including defending them against criminal or regulatory claims of wrongdoing. Some unions offer members access to holiday homes, discounts on good and services and the like.     

Often though, workers are seeking safety in numbers and a voice. They may be seeking collective representation in relation to bargaining or they may have a specific issue in their workplace. They may feel that their employer is not listening to them, they do not think their employer will react well to them raising concerns, or they simply do not know how. 

The power imbalance between employers and employees, as recognised in the Employment Relations Act 2000, can make it difficult for workers to feel they are being heard.  Unions provide a means for workers to get their message across. Unions, and union members, enjoy special legal protections against retaliatory behaviour relating to their union involvement.  

In this context, it is perhaps surprising that a union for legal workers has not been formed earlier. The ALWU has identified several issues faced by junior lawyers, with the first focus of attention being hours of work and the minimum wage.  The Minimum Wage Act 1983 sets the minimum amount an employee can be paid in New Zealand. 

Law firms have traditionally placed significant expectations on junior lawyers to work all manner of hours for comparatively low pay.  The ALWU has identified that where a junior lawyer works more than 40 hours in a week, they may be being paid less than the minimum wage. Issues such as sexual harassment and bullying are also high on the agenda.

Some critics within the legal profession appear less than impressed by the creation of a lawyers’ union.  They point out that lawyers are well educated, generally come from privileged backgrounds, and are trained to argue their position and negotiate deals. Why should they need a union?

If they are not being paid properly, junior lawyers can go to the Labour Inspectorate or the Courts; if they are being sexually harassed, they can complain to the Law Society.  The argument is that the creation of the ALWU stifles building resilient lawyers and misses the realities of what it takes to be a lawyer.

These arguments entrench a paternalistic view that young lawyers should be lucky to have a job and should have to prove themselves. For junior lawyers starting out, the reality of work is likely to be far different from the rarefied atmosphere at the top of the organisation, just as it is in many workplaces.

Like many other professions, the careers of junior lawyers are in the hands of their employers.  Being seen to complain about the status quo, even where the issues complained of amount to illegal behaviour, can jeopardise promotion and advancement, and at worst result in being blacklisted from the profession.  A union provides a vehicle for advocacy whilst reducing the likelihood of discrimination and victimisation against employees who raise legitimate issues.

Criticism of the ALWU also overlooks that basic human right of all workers to form and join a union. There is no doubt that there is power in numbers and so it makes sense for employees to organise themselves collectively to negotiate for terms and conditions.

For employers, particularly law firms that have not previously had to deal with unions over collective representation, the challenge will be to embrace this as an opportunity to hear and learn more about what younger lawyers think of the workplace and environment. Employers who are not receptive to these messages, and who are not open to change, are likely to find that the world moves on without them.