Workplace changes mean, unnecessary

21 July, 2010

By Andrew Little, published by The Press.

The Government's recently announced changes to employment are niggardly and nasty. They won't improve a single wage packet or create a single extra job.

Extending the 90-day "no right" trial period to all businesses has rightly attracted the most attention and some of the least-informed commentary. But other changes such as placing control of union access in the hands of the employer, allowing the trade-off of the so-called minimum entitlement to four weeks annual leave and requiring a medical certificate for just a single day's sick leave are equally indicative of a pendulum swinging heavily back to employers.

Yet other changes which on their face appear fairly technical - such as ensuring employer processes are not subject to "pedantic scrutiny" and changing the legal test for justification of dismissal - have far-reaching implications.

The stock-in-trade of some editorial writers and commentators supporting these changes is to claim that anyone opposing them is being hysterical. But the changes are radical and they need debate rather than mindless put-downs of those in the debate.

So, starting with the 90-day "trial" law introduced in March 2009, this permitted small employers to hire a new worker under a clause allowing the worker to be sacked within the first 90 days of employment with no recourse if the sacking was unfair or unjust.

We were told when the law was introduced that it was necessary to allow those on the margins of society to have a chance of getting a job. That it would increase jobs as employers would have fewer risks in hiring new workers because they could be tried out.

Let's be clear. The "trial" law is completely different to our "probationary" law, and the two should not be confused. Under our probationary law an employer and a worker can agree on a probationary period (which can be longer than 90 days).

Under this law, the employer is required to give regular feedback during the probationary period, at the end of which if the employer is not satisfied with the performance the worker can be dismissed. It is pretty fair and the courts have traditionally adopted a lower threshold of justification for probationary workers than long-standing employees.

The"trial" law is quite different. There is no requirement to be fair or to provide feedback on performance during the trial period.

New Zealand's fair dismissal laws have been based for 40 years on the principle that a worker should not lose their economic livelihood without good reason and due process.

Due process includes being given the courtesy of knowing what you've done wrong and having a chance to explain. We do not tolerate arbitrary decision-making from any other body that exercises authority over us.

There is no principled basis to tolerate it from employers.

The evidence is that the "trial period" law is being abused. Complaints have been received by the EPMU and other unions of workers who have been compelled to sign agreements with "trial" clauses in them and then found weeks into the job they are summarily dismissed without even an explanation of why they have been sacked.

And there has been no evidence produced whatsoever that the "trial" law has produced a single extra job. That is, a job that would otherwise not have been in existence were it not for the law. In fact the evidence is the opposite.

Reports released in the last few days by the Government and by the Northern Employers and Manufacturers Association show that the law is being used to fill jobs that have always been there, including the Prime Minister's pizza boy's job.

The Press in its editorial last week supporting the law change argued that most employers are responsible and they will not abuse the law. So, the real question is, why change the law at all?

If responsible employers will not abuse the law and will act fairly and reasonably then there is no need to change laws, including our existing probationary law, that presently require employers to do just that.

What The Press is supporting is a law change that lowers the standard of all employers to that of the worst employers.

The "90-day trial" extension, as with the other measures announced by the Government, is underpinned by an assumption that workers cannot be trusted. One of the employers quoted in the Government report on the trial period law confirmed this when he said the law should be extended to six months because workers could easily behave for three. According to this employer, workers get a job in order to slack around and undermine the business.

The same anti-worker sentiment sits behind the demand that workers provide a sick note for a single day of absence. There must be independent evidence of sickness because workers cannot be trusted to tell the truth.

The proposed new law on union access is about handing control to the employer and is based on the premise that the boss controls the workers as well as the workplace.

Union access is inextricably linked to workers' freedom of choice to belong to a union. That choice is the worker's. And what goes with that choice is the right to have a representative of the chosen union in the workplace when the worker needs it.

The access right of the union representative stems from the choice of the worker, not the employer. Any impediment to that choice or the natural incidents of it makes the worker's freedom of choice meaningless. And that is no choice at all.

In reality, many of these changes are a distraction from the real challenge of government which is to grow our national income and improve individual and household incomes for all. This challenge entails lifting productivity, and this requires an engaged and committed national workforce.

Measures that erode workplace rights, that see workers as disposable and which make it harder for workers to exercise their legitimate choices end up diminishing workers' voices at work and undermine any claim to improved productivity. An economic future built on diminishing workers' rights is no economic future at all.


* Andrew Little is national secretary of the Engineering, Printing and Manufacturing Union (EPMU) representing 50,000 workers in 11 industry sectors. Previously he was EPMU legal counsel.