Employment Law Editorials

July 20th, 2010 at 11:00 am by David Farrar

First the Herald:

Most of the scrutiny of the Government’s planned changes to has focused on the extension to all firms of the 90-day trial period for new workers. But for business, the most welcome aspect of the package will undoubtedly be the sensible reform of personal grievance dispute procedures. Too often, employers have looked askance at the way Employment Relations Authority processes and decisions have come to the aid of workers who have been dismissed for perfectly valid reasons. A rebalancing is long overdue.

The Government has made two particularly notable changes. First, the authority will be able to filter out vexatious or frivolous claims early on, thereby saving time and money. Secondly, and most importantly, the authority will have to pay more attention to the right outcome, rather than subject employer processes to “pedantic scrutiny”. This is intended to stop decisions going against employers because they failed to follow procedure to the exact letter in terms of warnings, areas for employee improvement and suchlike. No longer should loopholes undermine a justified dismissal, sometimes at a cost of thousands of dollars to an employer. …

At times businesses can find it nigh on impossible to dismiss even the most flagrant abuser of workplace standards or productivity requirements. The reform should not be interpreted, however, as the green light for loose or unfair practice. Although the detail of the change has yet to be announced, it will still fall to the authority to decide what is a minor oversight with no bearing on the core issue and what is a dire breach of procedure. This should swing the personal grievance process back into better balance rather than substantially in employers’ favour.

What is interesting is the Government is planning to put into statute, much of the case law on how to legally dismiss someone. This will reduce uncertainty – along with a proposed code of practice.

The most obviously problematic item on the Government agenda is, however, the plan to allow employers to force workers taking sick days to prove they are ill, after just one day. This is intended to allow firms to tackle employees who they suspect are routinely taking ‘sickies’. The Labour Minister says it would be used sparingly. So it will if this is a rare problem. But if used widely, it would create a significant burden for all concerned. If, as the minister suggests, this is not a major problem, there seems no good reason to amend the present law, which serves its purpose well enough.

I agree that at this stage I am not convinced this is a change where the pros outweigh the cons.

In sum, this is not the stuff of a strident assault on workers’ rights. It is more a measured process that, with a little select committee tweaking, will introduce a greater coherence and flexibility into employment law, especially that relating to personal grievances.

They really are quite modest changes – but changes that will be of considerable benefit.

The Dom Post:

In an ideal world there would be little need for employment law. Employers, unions and workers would be fair and reasonable at all times. No-one would take advantage of sick leave provisions to add to their leave entitlement. No-one would be capriciously sacked.

However, this is not an ideal world. Employers and workers do not always act as they should, and that is why a legal framework is needed to govern their relationships.

The Government’s role should be to make sure the balance of that framework is as fair as possible. The changes Prime Minister John Key announced at the weekend are a move towards that. …

It is undeniable that, under Labour, the pendulum swung towards the workers. The just-announced changes are an overdue and small correction – not the catastrophe their opponents believe.

This talk about a council of war is hysterical over-reaction.

Finally the ODT:

Planned changes to employment and holiday laws announced by Prime Minister John Key on Sunday are hardly the stuff of revolution. …

They represent the attitudes of a Government shading towards the right while still keeping within range of the centre.

They reflect policies of a National Party determined to be pragmatic rather then radical.

Nonetheless, the measures, if enacted after passing through parliamentary processes, will, in total, help employers as they try to do business.

They will, in small ways, help New Zealand’s competitiveness.

And that is the key. The changes will make NZ more competitive and will enhance economic growth.

27 Responses to “Employment Law Editorials”

  1. Fletch (9,143 comments) says:

    The only thing that really concerns me is that doctors note after one sick day thing.

    1. Who wants to spend the money for a doctor appointment just to get a note?
    2. It takes a lot for me to take a sick day off work. If I feel too sick to get myself up for work, then I’m not going to want to get up to go to the doctor if I’m feeling bad / nauseous. A lot of these things you don’t need to go to the doctor for; you just need bed rest.
    3. As doctors pointed out on the news last night, they don’t have the time for doing notes. There are bad enough backlogs as it is now without getting people coming in for a note. Keep the doctors free for people who really need them. A doctor also said last night, they don’t really want people coming in with fresh does of flu germing up the surgery.

    Dumb idea.

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  2. gravedodger (1,707 comments) says:

    I understand WA employment law allows for an employer to require a statuary declaration from an employee that they were indeed too ill to attend work which places the genuine employee at no disadvantage but a case of mondayitus will leave an employee in a degree of legal difficulty for making a false declaration. Entirely fair and easy to administer solution placing the responsibility on the suspected malingerer and bypassing the too often rubbish medical certificate.

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  3. tvb (5,542 comments) says:

    The Unions will oppose this in every way they can. BUT I seriously have doubts that Kate Wilkinson has the political skills to manage this effectively. This is another important reform that is being handled by the weak links in the Cabinet. The mining issue is another. Brownlee knew where the resistence will come from but he did not seem to care nor did he try. Maybe the schedule 4 thing was used to get what the Government really really wanted. But I very much doubt that Kate Wilkinson has even a fraction of this political skill. John Key needs to shuffle his cabinet and put his skillful Ministers where important reforms are needed and put Kate Wilkinson in charge of Libraries or something.

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  4. tvb (5,542 comments) says:

    PS If I were John Key I would sit Wilkinson down and ask her how she is going to manage the reforms. I bet she does not have one damn clue how she is going to do it. Faced with this weakness John Key should promptly move her out of the portfolio and put someone like Stephen Joyce in there after checking first how he would deal with it.

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  5. Pete George (24,828 comments) says:

    a statuary declaration from an employee that they were indeed too ill to attend work

    An interesting idea, that could help and it’s simple to implement.

    It’s too easy for employees to just look on a sickie as a normal thing to do when you feel like it. Having to make a statutory declaration would probably make some think through how justified they are in taking a day off and may encourage more honesty and responsibility.

    Had a quick look, WA seems to allow either a doctors certificate or a statutory declaration witnessed by a JP.

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  6. stephen (4,022 comments) says:

    1. Who wants to spend the money for a doctor appointment just to get a note?

    Well, as stipulated in this case it’d have to be the employer.

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  7. camrun (49 comments) says:


    Most bosses are reasonable people, and will surely not want to bear the cost of the doctor’s visit unless they have good reason to suspect their employee was bullshitting them. If I was an employer I would look at the individual staff member and their pattern of behaviour etc to determine if it worth the cost to make them go to a doctor.

    At least this change might make some people think twice about trying to get away early for the weekend, or grab an extra day on Monday by calling in sick from their boat.

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  8. Viking2 (14,467 comments) says:

    And why? Just another socialist imposition on the employer.
    Why don’t they just butt out and let us get on with the job.
    Just take away the priviledges unions enjoy and remove their funding rights from this that and everyone else and then they can earn their money doing their work, just like the rest of us.

    As for Wilkinson. JAFG (in case you are wondering Just another fucking greenie) What a waste of space these Cabinet Ministers are. All need sending to a rest home for that’s about the extent of their efforts to do anything. fucking hopeless. Too busyt being nice at tea parties, not goal orientated nor orientated towards making NZer’s wealthy.

    According to Key that was one of the three goals National had, and are we better off. No not at all. Still running round doing appeasement to the nutters.

    Harden the fuck up Key. Get rid of the imposters.

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  9. trout (1,149 comments) says:

    A maximum of 5 days sick leave per year used to be the norm but some awards apparently now allow for unlimited days sick leave. Is this common? If it were only 5 days there would not seem to be an issue but I guess if you add this to ‘tangi leave’, union re-education leave, maternity leave etc etc. it does become a problem. In some industries there is real fall off in the workforce on Mondays or Fridays.

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  10. Honest John (204 comments) says:

    “The changes will make NZ more competitive and will enhance economic growth.”

    I can just see DPF’s ancestor in the 1650s “Farrar’s snake oil will cure both your small pox and your syphilis”.

    Honestly, those words could have been written or spoken by Bill Birch before introducing National’s Employment Contracts Act (which also made redress for grievances impossible for most workers) which helped make the 1990s NZ’s slowest decade for wage growth in the post ww2 period.

    Aside from that, the provisions protecting against harrasment and discrimination are meaningles. You have to .supply hard evidence of discrimination and harrasment. That means having witnesses – if you haven’t got that your boss can give you the flick ‘cos you refused to have sex with him, and just say that you were under-performing, or ‘cos he found out you like the wrong religion. If it’s your word against theirs (as with most such cases) you have no case.

    Does that really sound fair to you?

    This legislation is only good for sex offenders and other people that like to abuse power. No wonder rightists like it!

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  11. Pete George (24,828 comments) says:

    H John, you posted most of the same yesterday. And it sounded just as over the top then.

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  12. Honest John (204 comments) says:

    Hey you have the same acronym as “Personal Grievance”. Shame you don’t actually believe in the process..

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  13. Honest John (204 comments) says:

    There’s a good post in the origin of this sort of employment law.

    “National’s employment contracts act explicitly borrowed many of its provisions directly from the 1979 Chilean Plan Laboral. The Plan Laboral was the Pinochet dictatorship’s labour code, and was championed by its then Labour Minister Jose “Pepe” Pineda, the father of the current Chilean president. Under the pretence of promoting “labour market flexibilisation,” the Plan Laboral was an outright assault on the Chilean union movement, using both structural as well as politically-focused clauses to atomise the Chilean working class and forever break union influence on economic decision-making. To a large extent, and even with subsequent reforms by successive post-Pinochet democratic governments, it largely succeeded in doing so.”

    David Farrar-Pinochet?

    [DPF: And that is 30 demerits. You are not only being hysterical, but getting personal. If you want to do that, go elsewhere. If you want to make reasoned logical arguments against the proposed law changes, then please do so]

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  14. Honest John (204 comments) says:

    oh – that come’s from kiwipolitico btw.

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  15. Honest John (204 comments) says:

    Are you trying to tell me that you aren’t a union busting idealouge David Farrar? Yes i do take the stripping of NZ’s work rights personally. Victimising our young and vulnerable people isn’t cool Mr Farrar. You actually disgust me, supporting this regressive authoritarian crap.

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  16. Honest John (204 comments) says:

    BTW – that isn’t being hysterical. You’re the one that’s failed to offer a logical argument on this topic Farrar. This legislation enables evil to take placeand for no demonstrative benefit for 95% of New Zealanders. You think about that. How does it sit with your conscience?

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  17. Rich Prick (3,018 comments) says:

    And that, folks, is the sound of a burst nappy hitting the floor.

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  18. Honest John (204 comments) says:

    And that, folks, is the sound of a coke can with a few small stones rolling around inside it.

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  19. Fletch (9,143 comments) says:


    When I was doing administration, it used to be that you got 5 sick days a year and if you didn’t use them you lost them, but now they accumulate year upon year to a total of 15 maximum. Unless it has changed again…

    [edit] it is 20 days now.

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  20. Nookin (4,657 comments) says:

    The trial period has been going for some time. Give verifiable examples of sex offenders taking advantage of the change. Your logic and sense of perspective is so convoluted and warped that you must have your head up your arse.

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  21. Honest John (204 comments) says:

    Not really an argument Nookin. If you allow evil to prosper, it will – you can be assured of that.

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  22. Nookin (4,657 comments) says:

    And if you allow people to create opportunities for advancement they will take them. Scaremongering and scandalising without any factual basis is less of an argument.

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  23. Paul G. Buchanan (351 comments) says:

    Honest John.

    As the author (under my pseudonym) of the kiwipolitico post that you quoted (http://www.kiwipolitico.com/2010/07/the-blues-go-black), I believe that your Pinochet=DPF line was over the top and unfair. People of integrity can reasonably and honestly disagree with you and I about the merits of labour market flexibilisation without being authoritarian apologists or dictatorial themselves. I have no reason to suspect that DPF is one of the latter. Moreover, some of the proposed reforms deserve to be debated honestly on their merits even if others clearly show an anti-worker bias. In my KP post I address one of the latter.

    The post focused on the proposal to require employer consent for union visitation of workplaces. That was part of the Chilean Labour Code (PLan Laboral) that was copied by the 1991 ECA and to which National proposes now to return. In the post I note how this contravenes ILO Convention 87 on freedoms of association and trace the connection between the Chilean Labour Minister responsible for the Plan Laboral, Jose “Pepe” Pinera, and Roger Douglas, Ruth Richardson and the Business Round Table in order to make the point that those involved in drafting the ECA are still at play in the NACTional coalition and had a role in promoting these latest proposals (which essentially amount to a return to an ECA “Lite” labour legislation framework). DPF was and is not part of that game.

    Thus, although there is Pinochet regime influence on certain aspects of these latest proposed labour reforms, it is unfortunate that you would tar DPF with a brush more appropriately reserved for Douglas, Prebble, Birch and Richardson. And, it should be noted, the first contacts between the Pinochet dicatorship’s Labour Minister and New Zealand policy makers occurred when Labour was in power. In 1991 National just followed through on what the Lange government had started with regards to labour market regulatory reform and, truth be told, the pro-business bias of labour market regulations embodied in the ECA was not fundamentally altered by Labour when it drafted the ERA. That is why these latest proposals are largely seen as egregious by people like me.

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  24. reid (21,594 comments) says:

    It’s interesting the comment in Commanding Heights about the relationship between Pinochet and Hayeck’s reforms which the left seized on and twisted, as they usually do:

    On His Role in Chile Under Pinochet

    INTERVIEWER: Tell us about some of the abuse you had to suffer and the degree to which you were seen as a figure out on the fringes.

    MILTON FRIEDMAN: Well, I wouldn’t call it abuse, really. (laughs) I enjoyed it. The only thing I would call abuse was in connection with the Chilean episode, when Allende was thrown out in Chile, and a new government came in that was headed by Pinochet. At that time, for an accidental reason, the only economists in Chile who were not tainted with the connection to Allende were a group that had been trained at the University of Chicago, who got to be known as the Chicago Boys. And at one stage I went down to Chile and spent five days there with another group — there were three or four of us from Chicago — giving a series of lectures on the Chilean problem, particularly the problem of inflation and how they should proceed to do something about it. The communists were determined to overthrow Pinochet. It was very important to them, because Allende’s regime, they thought, was going to bring a communist state in through regular political channels, not by revolution. And here, Pinochet overthrew that. They were determined to discredit Pinochet. As a result, they were going to discredit anybody who had anything to do with him. And in that connection, I was subject to abuse in the sense that there were large demonstrations against me at the Nobel ceremonies in Stockholm. I remember seeing the same faces in the crowd in a talk in Chicago and a talk in Santiago. And there was no doubt that there was a concerted effort to tar and feather me.
    INTERVIEWER: It seems to us that Chile deserves a place in history because it’s the first country to put Chicago theory into practice. Do you agree?

    MILTON FRIEDMAN: No, no, no. Not at all. After all, Great Britain put Chicago theory in practice in the 19th century. (amused) The United States put the Chicago theory in practice in the 19th and 20th century. I don’t believe that’s right.

    INTERVIEWER: You don’t see Chile as a small turning point, then?

    MILTON FRIEDMAN: It may have been a turning point, but not because it was the first place to put the Chicago theory in practice. It was important on the political side, not so much on the economic side. Here was the first case in which you had a movement toward communism that was replaced by a movement toward free markets. See, the really extraordinary thing about the Chilean case was that a military government followed the opposite of military policies. The military is distinguished from the ordinary economy by the fact that it’s a top-down organization. The general tells the colonel, the colonel tells the captain, and so on down, whereas a market is a bottom-up organization. The customer goes into the store and tells the retailer what he wants; the retailer sends it back up the line to the manufacturer and so on. So the basic organizational principles in the military are almost the opposite of the basic organizational principles of a free market and a free society. And the really remarkable thing about Chile is that the military adopted the free-market arrangements instead of the military arrangements.
    INTERVIEWER: When you were down in Chile you spoke to some students in Santiago. In your own words, can you tell me about that speech in Santiago?

    MILTON FRIEDMAN: Sure. While I was in Santiago, Chile, I gave a talk at the Catholic University of Chile. Now, I should explain that the University of Chicago had had an arrangement for years with the Catholic University of Chile, whereby they send students to us and we send people down there to help them reorganize their economics department. And I gave a talk at the Catholic University of Chile under the title “The Fragility of Freedom.” The essence of the talk was that freedom was a very fragile thing and that what destroyed it more than anything else was central control; that in order to maintain freedom, you had to have free markets, and that free markets would work best if you had political freedom. So it was essentially an anti-totalitarian talk. (amused)

    INTERVIEWER: So you envisaged, therefore, that the free markets ultimately would undermine Pinochet?

    MILTON FRIEDMAN: Oh, absolutely. The emphasis of that talk was that free markets would undermine political centralization and political control. And incidentally, I should say that I was not in Chile as a guest of the government. I was in Chile as the guest of a private organization.

    INTERVIEWER: Do you think the Chile affair damaged your reputation, or more importantly, made it harder for you to get your ideas across?

    MILTON FRIEDMAN: That’s a very hard thing to say, because I think it had effects in both directions. It got a lot of publicity. It made a lot of people familiar with the views who would not otherwise have been. On the other hand, in terms of the political side of it, as you realize, most of the intellectual community, the intellectual elite, as it were, were on the side of Allende, not on the side of Pinochet. And so in a sense they regarded me as a traitor for having been willing to talk in Chile. I must say, it’s such a wonderful example of a double standard, because I had spent time in Yugoslavia, which was a communist country. I later gave a series of lectures in China. When I came back from communist China, I wrote a letter to the Stanford Daily newspaper in which I said, ‘”It’s curious. I gave exactly the same lectures in China that I gave in Chile. I have had many demonstrations against me for what I said in Chile. Nobody has made any objections to what I said in China. How come?”

    INTERVIEWER: In the end, the Chilean [economy] did quite well, didn’t it?

    MILTON FRIEDMAN: Oh, very well. Extremely well. The Chilean economy did very well, but more important, in the end the central government, the military junta, was replaced by a democratic society. So the really important thing about the Chilean business is that free markets did work their way in bringing about a free society.

    On a related note, I heard two comments on RNZ over this issue: one was from one of their journos telling us that the meatworker industry apparently does suffer unduly from Monday and Friday sick absence, possibly because in doing so, it extends the season. The second was from a union rep, explaining that the new rule is execrable because the meatworkers had an ENTITLEMENT to sick leave. Entitlement. Where have we heard that before.

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  25. Rich Prick (3,018 comments) says:

    Does any one else think Honest John is just a little unhinged. Labour reform = evil = peadophilia = National Party manifesto policy. And Key does eat babies in his spare time, BBQ’ed is his perefered way Honest John. He finds them to be delicious if cooked rare and likes to be served by wait staff on 90 day trials.

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  26. Honest John (204 comments) says:

    Nookin – But no-one has shown that this bill will create a single aggregate opportunity. At best it will create more churn at the bottom end of the labour market, as the poor clamber over each other to srape together enough crumbs off the employer’s table to make a mouthful.

    You’ve also neglected to recognise that it will result in a less efficient labour market as employees higher up the pay scale become more averse to the risk of taking a new , higher paying job which better utilises their skills (some people have a responsibility to a family, so job security means a lot).

    Then there’s the issues i’ve sited above. If you’re a student of history, you’ll know that people are corrupted by unaccounted power. That’s just the kind of power National proposes to give employers. Not a good idea.

    Overall i can see a lot of cons, and no pros to do with the extension of the 90 day fire at will provisions.

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  27. Honest John (204 comments) says:

    Pablo – thought it was an uncontroversial fact that the Washington Consensus ideology that neo-liberals like DPF cling to so dearly was first trialled under right-wing dictator Pinochette?

    RP – my advice to you would to give up internet comedy and stick to the those quasi-legal battles with workers that you brag about.

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