Perspective – New employment law suckers workers

Jills Angus Burney
Solicitor, EPMU Legal
Vice Chair, Rural Labour

The new employment law does not, as most people seem to think, introduce probationary or trial periods for workers. These have existed since 2000 at section 67 of the Employment Relations Act.

So if trial periods were not the reason for the law change, what was? Retired Law professor John Hughes analysis (The Press, 6 January 2009) of the new employment law answers that question and in doing so, hits that nail well on the head.

He writes that National's election policy on 90 day trial periods in 2008 was specific to only one ground of dismissal. This was that employers would be able to terminate for presumably poor performance without the consequence to an employer of a personal grievance being brought. Hughes rightly points out that performance has a well understood legal meaning of ‘capacity to do the job’ as distinct from such issues as absence from work or misconduct.

In September 2008 Kate Wilkinson, then National employment spokeswoman and now Minister of Labour, confirmed that grievance provisions would still apply for all matters not related to performance. Given there was a current trial period available for employers to negotiate with new workers, was National’s proposed change on removing workers rights on ‘performance only’ grounds clear?

Was this the type of change so many New Zealanders were desperate for: that National would repeal substantial protections in the employment law for a significant sector of the workforce targeting 200,000 new employees per year?

The change legislated by National in December 2008 now removes access to a personal grievance by a sacked worker who has been contracted to a trial period in a business of fewer than 20 employees. As you can see, this law change is so fundamentally unlike what National proposed in the election campaign. The difference spelled out in plain English is that the new law applies to all aspects of the employment relationship. Well, forgive the pun from a retired sheep shearer, but that well and truly makes most in the voting public ‘wool blind’. Wilkinson and her National cronies well and truly bailed up the public as suckers to create the law as it now is.

Leaving aside that this repeal occurred without the protocol of the select committee process and did not exclude teachers as promised before the election by new Education Minister Anne Tolley, did the public really ask for this?

One of the stated objectives of the employment amendments as put before Parliament by Ms Wilkinson was that the changes should impact only on the problem identified.
So who identified the problem with the current probationary law? The 5.7% of working New Zealanders that are employers? Or the 48% that are fulltime employees? Certainly it was not those being made redundant this Xmas.

It's not hard to see the most vulnerable workers in rural and seasonal work will be most affected by these trial periods. A Filipino dairy worker will be at loss to stand up for his rights if an employer submits the contract to him as a fait accompli as will a young presser entering work for a new shearing season.

As a voice for rural workers (ACC Shearing Industry workers representative) and provincial employment law practitioner, I frequently take distress calls from workers in small towns affected by poor employer decisions. That’s not to say that all employers are bullies, or bad tempered, or don’t understand their obligations. Sadly the ones that are quick to fire have just had another reason to continue such abhorrent behaviour without accountability.

Conduct in the employment relationship works both ways. The new law says an employer with a probationary agreement is also not required to give a reason for dismissal of the worker. Such a deliberate unheralded change to the law is hardly responsible management. It is not a fair act of governance by the new government to not require justification for an employers conduct. How could one learn what has gone wrong at work without the decency of a reason? Where trial periods already existed, these changes are simply nothing short of government sanctioned freedom for an offensive employer to bully his workers.

Ramming this legislation through under urgency without proper debate was an insult to the very workers that voted the new government in.

ENDS

© Scoop Media