The employment law changes
November 24th, 2010 at 9:04 am by David FarrarParliament has now passed the Employment Relations Amendment Bill (No 2) and Holiday Amendment Bill into law. This was the bill that the union movement had declared a jihad against, but since the CTU’s disastrous involvement with The Hobbit, their roars have faded.
So what are the actual law changes? There are several, and while I support most of them, I actually agree with the union criticism of one aspect of the changes.
- Consent needed by employer for union to enter workplace, but can not be reasonably withheld, and a response to a request must be given by end of the next working day, and reasons for any declining within two days max. Basically this just calls for some good faith between unions and employers. Unions can’t barge in whenever they like, and employers can’t unreasonably restrict access. Not sure there was a big problem to fix here though, so give this a 6/10. Was a 2008 election policy.
- Allowing employers to communicative with employees during collective bargaining, so long as not breach of good faith. This allows an employer to tell the truth to employees about what they have offered, if te union is mis-representing or lying about their offer. A not totally uncommon problem. 7/10
- Extending the 90 day trial provisions to all workplaces. This has been incredibly successful in workplaces of less than 20 employees. A DOL survey has found 40% of staff hired under a probation period would not have been offered the job without this provision. The CTU campaign against the bill has failed to come up with even one convincing example of abuse. I rate this extension as a 9/10.
- A small but significant change to the justification test for employers. The test changes from “what a fair and reasonable employer would have done” to “what a fair and reasonable employer could have done”. I’d rate this 8/10 as the current law had it almost impossible for employers to meet what was almost a mythical standard of perfection.
- An employee can ask an employer to cash up their 4th week of leave. This was National election policy and will be great for employees who need some extra money so they can enjoy the other three weeks of holidays more. It is worth noting that when you leave a job you get your outstanding leave paid out anyway, so not a big change for many. I give this a 9/10 as it is a big win for employees in giving them choice.
- Allows an employer to ask for a sick leave certificate for sick leave of less than three days duration, if the employer will pay for it. Previously an employer had to have reasons to suspect abuse. I don’t like this part of the law change. I think it is impractical as no doctor will ever be able to state whether someone really was sick two days ago for a day. People won’t be able to get in to see doctors in time. I give this change 2/10.
November 24th, 2010 at 9:12 am
The union access one is particularly good. The old law was basically open slather, and while it had penalties for business, there were none for unions.
Vote:November 24th, 2010 at 9:12 am
Looking at the changes, my reaction is what was the fuss about.
Vote:The one I like is the justification test which will make life easier for an employer who is seeking to terminate an employee for cause.
The sick leave issue is not one that will concern me as an employer as my staff are all “senior” i.e +55 with proper work ethics and who need to be booted off the premises if they are sick in any way.
November 24th, 2010 at 9:17 am
This is welcome news. As an employer of around 30 staff, it’s great to have the 90-day provision available to us if we choose to use it. It’s not a given that we would, but it’s great to have the choice.
As far as the “cash up a week of leave” provision; great! My wife and I have not had a holiday for two years, apart from a few days off between Christmas and New Year last year when the cellphones were on and we were still dealing with work issues while trying to unwind. We are both salaried employees, and our leave balances have increased to ridiculous levels! At least by paying ourselves out for a week each, we might be encouraged to get away and spend some time away from our business instead of allowing it to consume us, as so many small business owners do.
Vote:November 24th, 2010 at 9:27 am
As no employer is likely to want to pay for an employee’s doctor visit, particularly at the “emergency” rates needed to get to see a doctor quickly, unless serial abuse is evident I can’t see the problem with the last listed correction.
The others are very good indeed.
Vote:November 24th, 2010 at 9:35 am
Given National’s recent behaviour I’m surprised we didn’t reintroduce compulsory unionism.
Vote:November 24th, 2010 at 9:35 am
Agreed MT_Tinman; as an employer, I would only contemplate requiring a doctor’s note where an employee was abusing their sick leave entitlement. As an insurance policy for that eventuality though, it’s useful.
Vote:November 24th, 2010 at 9:44 am
Having just got 4 weeks leave entitlement added, and still having 6 days left from the previous year, cashing one week up would be a great option for me, and I am glad to have the choice.
Could actually make the xmas/new year period much better for me, especially with 2 kids birthdays within 1 week either side of christmas!
Vote:November 24th, 2010 at 9:52 am
I believe that the change in the test of the justification is probably the most significant change.
Until the law was changed in 2003, it was not open to the Employment Court or the Employment Relations Authority to substitute its view for the view of the employer. So long as the decision taken by the employer was undertaken according to appropriate procedure and was within a range of outcomes open to a reasonable employer, the decision stood.
Although I do not have the statistics, my own experience is that it is very difficult to advise an employer on the likely outcome of a personal grievance simply because of the possibility that an employer could be second-guessed. On another thread, on another day, somebody (and I think it was Maggie) commented that if an employer did everything right then the employer had nothing to fear by going through the PG process. I disagree strongly with that. I highlight one case, involving a Justice Department employee whose conduct, according to the Court, amounted to serious misconduct and yet the decision to dismiss was overturned. There should be no room for line calls and this change levels the playing field.
Vote:November 24th, 2010 at 9:55 am
Why can the employee only cash up one weeks leave?
A mate of mine has 72 days annual leave owing to him, unless he decides to change jobs that annual leave entitlement is just going to continue to grow.
The annual leave is his, I cannot see any good reason why he is not allowed to cash in four, five or six weeks worth.
Vote:November 24th, 2010 at 10:04 am
I’m surprised employment law doesn’t specify the appropriate set of cereals one may have for breakfast. This sort of detail is ludicrous, and based on the faulty assumption that employers will take advantage of employees where possible, and that employees have no recourse. Of course they do: they can unionise, they can leave, they can learn about the employers reputation before applying, they can upskill and change industries.
Giving any of these changes 9/10 is great, but misses the rather larger point about why any of this is appropriately in legislation in the first place. Would a law change that allows people born in May to marry redheads also get a 9/10?
Vote:November 24th, 2010 at 10:22 am
I had an employee who constantly had ‘food poisoning’ on Mondays. Always extremely annoying, disruptive and infuriating, especially to her workmates who had to do her duties. I was powerless to ask for a medical certificate but can see how this could be a useful deterrent and I would happily have paid for it.
Vote:When she left, I asked her if she saw a pattern in her absences and she was embarrassed, admitting she didn’t realise how often she had thrown a Monday sickie to get a long weekend. Her workmates also made a joke of it at her farewell, clutching their stomachs and shrieking, “It’s Monday, it must be food poisoning!”.
November 24th, 2010 at 10:34 am
This is all excellent stuff.
I am very keen on the provision for cashing in a week’s leave. My employer provides quite generous holidays, and as a six-day-a-week-without holidays operation, I accumulate a lot of lieu days for public holidays too. I would be very happy to cash up a week’s leave out of the huge reserve I now have.
As for the sickie provision, I appreciate the point about the diffuculty of getting a certificate. But no employer is going to demand this unless they have good cause. The problem now is that suspicion of cheating is not enough, the employer has to have evidence. But without being able to send someone to a doctor, it is rather hard to get that evidence.
Vote:November 24th, 2010 at 11:14 am
Ben at 10:04 am
“I’m surprised employment law doesn’t specify the appropriate set of cereals one may have for breakfast. ”
BeaB at 10:22 am
“I had an employee who constantly had ‘food poisoning’ on Mondays. ”
If BeaB’s employee had been eating the appropriate cereals they may have avoided the food poisoning.
(I’m aware the problem was more likely to be hops sandwiches).
Verifying sickness is always going to be difficult. Employees that want a doctors’s certificate soon find out who the most compliant doctors are.
Vote:November 24th, 2010 at 11:52 am
THE LABOUR PARTY have hit a new low (yep, hard to believe) by way of darrian fenton .. she is linking the employment law changes with the mining disaster .. what a moron
Vote:November 24th, 2010 at 1:19 pm
The sick leave law has a very useful application.
We all know that any employee fit or otherwise can get a note from a doctor for sick leave (although the employer is able to designate a doctor to visit), but the physical act of having to visit the doctor and bring the sick note into work within 3 CALENDAR days is an impediment to those who spend their sick days on Mt. Ruapehu.
Having an employer pay for a doctors visit should be seen as a plus by employees.
Vote:November 24th, 2010 at 1:22 pm
As a former employer, now some years ago, ALL new staff were on 3 months trial in writing, and agreed by both parties.
Vote:Leave accumulation was allowed for up to 2 years (except by special agreement). So take it or leave it.
We were not unmindful in our good staff relations.
November 24th, 2010 at 2:22 pm
As to the sickie clause, I see merit in requiring some form of statuary declaration instead of a Dr’s Certificate, as I believe is the system in West Australia, with serious sanctions for proven abuse. Too often do I hear of long weekends for surfing, skiing or weddings etc. where a sickie is used to add a day or two to a weekend and why bring the Dr into it as he will just make a decision on the evidence or lies of the perpetrator, with whom the responsibility lies, pun intended.
Vote:November 24th, 2010 at 6:36 pm
Its standard operating procedure in Singapore and in the UAE for any employee taking a day off sick to have to obtain a medical certificate. This is done at an appointed clinic and the bill is paid for by the employer. If you can’t be bothered then you just use an annual leave day. It discourages single days off – since you have to go to the clinic, I always ask for two days. Just to be sure.
Vote: