The Pigeonhole

You will all be aware by now of the employment law changes announced at the weekend.

 It is our understanding that all these changes are subject to the full select committee process but they can at any time invoke urgency as they did in December 2008. 

These changes come on top of the original 90 day law in December 2008 rushed through under urgency, the limits being proposed to how unions conduct strike ballots, the requirement to agree on meal and refreshment break times, the axing of the Pay and Employment Equity Unit, the cut in union education funding, and the cuts in ACC entitlements.

Below we briefly summarise the changes announced which, in almost all cases, unions will oppose.

• Extending 90 day period with no right of appeal against unfair dismissal to all workplaces.
• Employers will be able to ‘communicate’ directly with workers during collective bargaining.
• Union access will require employer consent, which ‘cannot be unreasonably withheld’.
• Reduced focus on procedural fairness in personal grievance cases. The Government will ‘ensure that an employer's processes are not the subject of pedantic scrutiny’.
• The Employment Court will have less ability to question the reason for dismissal as the test is changed from what a reasonable employer ‘would’ do, to ‘could’ do.
• Removing reinstatement as the primary remedy in dismissal cases.
• The Employment Relations Authority will be able to ‘filter out vexatious or frivolous claims at an early stage’.
• There will be penalties for delaying behaviour at the Authority.
• Up to one week's annual holidays can be traded for cash.
• For those workers whose hours of work and pay are irregular, their payment for sick leave, bereavement leave, public holidays and alternative holidays will be calculated by averaging gross earnings for the preceding 52 weeks or whatever lesser period the employee has been with that employer.
• Workers can agree to transfer the observance of public holidays to another (identified) working day.
• Employers will be able to ‘ask for proof of sickness or injury within three consecutive days of an employee taking sick leave, but will have to cover the employee's reasonable costs in obtaining proof’.
• The maximum penalties for non-compliance with the Holidays Act will double from $5,000 to $10,000 if the employer is an individual, and from $10,000 to $20,000 if the employer is a company or other body corporate.
• Early mediation services without representation, prior to any formal mediation.
• The Government intends to make some other changes ‘to improve the way the Employment Relations Authority works, including moving to a more judicial mode of operation, with the right to cross-examine witnesses’.
• A code of ethics for employment advocates.
• Formal definition of the role of Labour Inspector.
• Allowing Labour Inspectors to issue improvement notices.

The 90-day law is a charter for unfair dismissal and, it appears, was a Trojan horse for a larger attack on basic democratic workplace rights. To borrow from Diane Ravitch - it is an attempt to pander to "those who command by the power of money, not wisdom".

(Helen Kelly is President of the New Zealand Council of Trade Unions (NZCTU) PPTA is affiliated to the NZCTU)