90 days is enough

August 10th, 2014 at 11:00 am by David Farrar

Stuff reports:

Business New Zealand’s push for an extension to the 90-day hiring trial lacks support from either National or Labour.

Business NZ chief executive Phil O’Reilly said he had spoken to both parties about extending the trial period from 90 days to six months or a year, which is in line with many other OECD countries (see graphic). But he said neither party had shown an appetite for introducing such a move prior to the election, if at all, and it would be something the business lobby group would raise again post-election, along with other issues outlined in its policy manifesto released last week.

I don’t see a need to extend it. I think a crap employee is fairly easy to detect in the first 90 days. You can’t always work out if they are incompetent just on the basis of an interview or CV, but a few weeks into an actual job normally exposes if they are not up to it. Trial periods are a balance between an employee needing job security and an employer needing to see if someone is actually up to the job. I think 90 days is a right balance.

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58 Responses to “90 days is enough”

  1. Redbaiter (8,882 comments) says:

    There shouldn’t be any need for any kind of special trial period.

    Employers should be able to hire and fire whenever they choose. Its their business and their money at stake.

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  2. David Garrett (7,278 comments) says:

    Red; So, in your erudite and experienced view, an employer should be able to say “if you don’t go out with me tonight I am going to fire you”? If you don’t believe that kind of blackmail – and worse – happens you simply reveal your ignorance. In your utopian world employers should be able to fire at will, and that wouldn’t be a problem for the employee, who would just find another job which was a better fit. The real world is a bit more complicated.

    I agree that 90 days is probably about right. That is long enough to find whether an employee is up to scratch…and I don’t think it’s right that they should have to effectively live in anxiety if not fear of termination for much longer than that.

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  3. hmmokrightitis (1,590 comments) says:

    You’re obviously not an employer weddy. There needs to be protection AND commitment on both sides for the relationship to work. The ability to fire at will was rightly removed years ago to protect workers from scumbag business owners. And there are still some around.

    90 days works really well – if you dont know in a month, then theres something wrong with your hiring, on boarding and mentoring processes.

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  4. Rich Prick (1,705 comments) says:

    I accept that there ought to be compromises in employment law. From the way the left carry on one could be left thinking 90 days is pure evil. I think it’s better than no trial period. After all, 90 days was long enough for Georgina Beyer’s only ever real employer to work out she is useless. Of course she was sacked before it was law, but she still makes the claim, so it must be good.

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  5. adze (2,126 comments) says:

    This is the wrong time for Business NZ to push for a solution without a problem, especially while wages remain relatively stagnant despite a growing economy .

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  6. Harriet (4,972 comments) says:

    Employees shouldn’t get much of a say as it is not their capital or risk.

    Employees however should have a much bigger say and have more government representation in how they are paid compared to their workmates.
    Telling staff that they ‘can’t compare their work with their co-workers due to privacy laws’ is a fucken crap defense. If staff want to point out that they are more productive than their fellow workers, and discuss wage rates based upon that with their employer, then government should be backing them to do so.

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  7. Nigel (514 comments) says:

    I agree on 90 days, I think if both unions & business NZ are complaining a bit, you’ve got it about perfect.

    It’s very true that it can be tough to see how someone will work out & if you can’t work that out in 90 days then the problems are not legislation, but how you’re training/incorporating your staff in my opinion, certainly in > 90% of cases.

    Having said that, I think it’s to tough to get rid of people in NZ, that balance is to far in favor of the employee, if on a scale of 1-10 on difficulty it’s around 8 now, I think 6 would be better.

    ( Very well said David Garrett )

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  8. Redbaiter (8,882 comments) says:

    Red; So, in your erudite and experienced view, an employer should be able to say “if you don’t go out with me tonight I am going to fire you”?

    Who the hell would want to work for an employer who acted that way? And if you think a court hearing would resolve that situation you’re crazy.

    Civility is a human condition. Why do you progs always want to sacrifice that precious commodity to banal and unworkable legislation?

    Look at the findings of many of the employment law cases? Outrageously biased against employer.

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  9. Nigel (514 comments) says:

    There is a real world out there RB, one day you will discover it doesn’t fit with your view from that room you never leave.

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  10. mikenmild (11,247 comments) says:

    Have you looked at any ERA decisions Reddy? They’re readily available on line and do not bear out your allegation of bias.

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  11. Lance (2,655 comments) says:

    I see in the SST around the world 6 months is quite a common length of time for a trial period, including Aus

    So 3 months is very employee friendly

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  12. dime (9,972 comments) says:

    Red – how many states in the us have fire at will laws? Half?

    There must be millions of horror stories then?

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  13. Anthony (796 comments) says:

    Harriet, when I was working in the public service soon after they got rid of listing everyone’s rank and salary back in the early 90s, they started showing what salary band everyone was in. Then the employer decided that was a breech of privacy even though it had been agreed! I tried to get the PSA to push the issue but there was little support. Needless to say I resigned from the PSA after that and have never been a member of any union since.

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  14. Redbaiter (8,882 comments) says:

    “They’re readily available on line and do not bear out your allegation of bias.”

    I know well enough what a crock of shit it is.

    Look, I know they’re are bad employers out there but legislation is not the answer. As always, it just creates unrealistic expectations in the minds of those believers who think govt can solve every problem they ever face.

    Soon you commies will insist upon a Ministry for the Prevention of Ingrown Toenails.

    Why don’t you tell me what the reasons are for having a ninety day period in the first place?

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  15. Redbaiter (8,882 comments) says:

    “There must be millions of horror stories then?”

    Exactly.

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  16. mikenmild (11,247 comments) says:

    Anthony
    I don’t think it was the PSA behind the half-baked idea that salaries are personal information.

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  17. redqueen (562 comments) says:

    Two things:

    First, people really are idealistic about the effects of law. I have worked for abusive employers and really great employers. Both operate within the same system and a good abuser is the one who gets away with it (which has been my experience), regardless of how much paper we print.

    Second, what does this have to do with the 90 day trial (or its extension)? Seems people really have gotten off topic!

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  18. David Garrett (7,278 comments) says:

    Red: The court “resolves” such situations as I describe by making the former employer (of course the employee doesn’t remain in that workplace) pay a substantial sum in compensation and costs…as is entirely right and just.

    The question of bias in ERA decisions is a complicated one…Some such decisions can certainly seem biased in employees’ favour where there has been serious misconduct – assault on the boss for example, or theft – and the boss has summarily dismissed the employee …”sacked on the spot” in the vernacular. In such cases, the employer will almost certainly lose because of a lack of process, and I don’t believe that that is right…if an employee has used violence in the workplace, stolen from the employer, or caused significant damage to plant or stock, employers shouldn’t have to go through a charade to reach an outcome which is clearly inevitable from the outset.

    In cases of poor performance, I think it is entirely reasonable that employers be obliged to follow the rules which have evolved in the 25 years since the ECA gave every employee the right to take a Personal Grievance: to make it clear to the employee what areas of his or her performance are inadequate; to give the employee clear KPI’s to achieve to avoid dismissal; to allow a reasonable time for the improvement to occur.

    Even with those rules quite clearly spelled out in the cases, there are still cases where an employer decides that an employee’s face doesn’t fit, or they just don’t like them, and then embark on the procedure I have outlined above without any intention of keeping the employee on…In my time I have dealt with such cases from both sides of the employment equation…they are not nice ones to be involved in. If the employer “follows the script” carefully, the employee will usually fail in a PG after the inevitable dismissal.

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  19. peterwn (3,272 comments) says:

    Given the way this election is shaping up, I think Business NZ has shown bad judgment in presenting a ‘wish list’ at this point. If they want a centre-right government (although some members probably think they can perversely benefit from a Labour/Green/etc government), they should clam up at this point.

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  20. Redbaiter (8,882 comments) says:

    DG, a good employee is an asset to any business. A bad one is a millstone around his employer’s neck. The employer has his money, his future and the future of his family at stake.

    Employees who want control over a business that ownership brings should buy shares or if they can’t then they start their own. I know someone who was employing people at 20 years of age when he took over the company he worked for.

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  21. redqueen (562 comments) says:

    @peterwn

    Now that I do agree with. The media will happily try to turn this into a link to National (regardless of what National actually say). So it’s really stupid timing, if Business NZ do want these sorts of things, to bring it up. Also, going to Labour about extending a policy Labour disagrees with seems like a political stunt. I really can’t see what they think they’re going to achieve (beyond a flat denial from National, making them ‘look bad’, and giving Labour oxygen on a non-issue).

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  22. ShawnLH (5,063 comments) says:

    I agree that the 90 day trial is about right. It gives employers enough time to get a handle on a potential employee.

    Apart from that I’m literally in stitches laughing at Red calling DG a prog. :)

    The debates here at KB seem to sink into lunatic fringe territory with alarming ease.

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  23. flipper (4,065 comments) says:

    Phil O’Reilly has either lost control of his organisation, or he is off his rocker.

    The timing is silly.

    But…. before we condemn him to the high jump, be aware that it is only political junkies and apparatchiks that follow such matters in detail. The great unwashed will not be aware….

    Classic example…… Went to a 60 year old’s birthday party last evening. She was debating how to cast her vote.

    “Vote National ..and Party vote National,” said I.

    “But I cannot stand xxxx xxxxx, but yes, Party vote National.”

    Told that xxxx xxxxx announced his retirement in January, the reply was:

    “What. When did he do that. I didn’t know. So who do we have standing???? ”

    Dumbass women (and men), but they get a vote.

    So the message is that penetration is barely skin deep… if at all.

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  24. David Garrett (7,278 comments) says:

    Shawn: Actually it’s a bit embarrassing..apparently Red has found out about my secret meetings with Hone and the German about my becoming their Justice spokesperson…I was assured that no-one would see me coming into the mansion late at night in the back of the limo with smoked class windows…but apparently Red’s spies are everywhere…He just cant seem to get them to sign up to his party…

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  25. burt (8,269 comments) says:

    90 day trials are just ridiculous. People should join a union, get a government job and stay there for life. Paying their union fees so the unions can donate to Labour so Labour pass the perfect policy of compulsory unionism in glorious job for life socialism.

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  26. mikenmild (11,247 comments) says:

    I think you might be stuck in the 1970s, burt.

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  27. Redbaiter (8,882 comments) says:

    Ha..

    I think he just delivered a reasonably accurate summary of your own employment history Milky.

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  28. Other_Andy (2,676 comments) says:

    Redbaiter (7,742 comments) says at 12:41 pm

    Bingo…!

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  29. Hamish_NZ (46 comments) says:

    I think Redbaiter and Business NZ must have between them written ACT’s employment policy, which seems to want unlimited trial periods, and on top of that no comeback via the courts for employees fired unjustly. Really wacky Colin Craig type stuff in there. Not to mention it’s so badly written it looks like 5 different 5 year olds were asked to write it.
    It has cost ACT my vote this year, purely because of how badly written it is. Which is a shame because I quite like a number of other new ACT policies and candidates. But when something as important as employment policy is that moronic, I can’t in good faith tick the box for ACT.

    Business NZ and ACT could cost the center right the election with their brain farts. Although I guess we should congratulate them on being honest. Which is rare these days.

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  30. Dave Mann (1,218 comments) says:

    I agree absolutely with your view, DPF. I think the 90 days’ trial period is an excellent way to sort the wheat from the chaff, but to extend it would only give employers too much leeway to be exploitative.

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  31. ShawnLH (5,063 comments) says:

    DG,

    “but apparently Red’s spies are everywhere…He just cant seem to get them to sign up to his party…”

    Well, his supposed contribution to the Right is nil, so when you are an utter failure all you have left is to attack people who actually have made a contribution.

    The truth is that Red is one of those sad specimens anthropologists call Impotens Delinquio.

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  32. burt (8,269 comments) says:

    I bet there are still a handful of hard core socialist who could be in parliament later this year who would vote for compulsory unionism in a heartbeat. Well, a tick of a clock perhaps – people who advocate compulsory unionism don’t have a heart – just an ideology of envy, fear of freedom and a deep seated hatred of people who do better than they do in their mediocre state owned existence.

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  33. WineOh (630 comments) says:

    Two edged sword possibly- if an employer has 6 months trial period, the temptation would be to hang on to a troubled employee longer in case they can still turn things around & produce a productive worker – when it may be the better option to “free up the future” of said individual earlier & stop wasting everyone’s time.

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  34. burt (8,269 comments) says:

    WhineOh

    My opinion is 90 days is what we have so it’s what we’ll keep . It hasn’t made the sky fall like the lovers of union member job for life ranting socialists said it would. Clearly they would like to repeal the common sense law in favour of their ‘fighting the man’ agenda but National have little to gain extending it. I suspect a lot of people having wrestled some control over keeping new employees for ever from unions are not game to risk losing the gains by arguing over extending the duration before job for life kicks in again.

    The 90 day trial achieves much more than being able to not continue employing an new unsuitable employee. It opens an individual dialogue with the employer and employee on clear expectations and responsibilities. This is anathema to the unions and bringing the debate back to the political forefront in an election campaign is just silly. Well, not silly if you want to repeal the law entirely.

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  35. Rex Widerstrom (5,354 comments) says:

    Redbaiter says:

    , a good employee is an asset to any business. A bad one is a millstone around his employer’s neck. The employer has his money, his future and the future of his family at stake

    What you say is true of owner-operated businesses. Though in a slow growth economy with high and/or rising unemployment there’ll still be a queue of unemployed ready to be exploited. And if the work is menial then skill level won’t be too great an issue. Which is why most ERA harassment cases involve un- or low-skilled workers. You don’t get too many bosses pressuring young female lawyers for sex.

    But more to the point, what of employers whose own capital isn’t tied up in the business? For instance one of my first jobs in Australia was Executive Producer at a TV channel. The CEO and my immediate boss were on ridiculous salaries, given the business’s performance, and in fact in the 3 months I was there gave themselves a raise.

    They also informed me, arbitrarily, that they’d decided my job included selling ads, and that the performance indicators against which I was to be measured now included sales figures.

    Because the Australian economy was strong at that time, I walked out and straight into another job. If it happened today, I doubt I could.

    Shortly after I resigned the channel effectively went bankrupt. The administrators sold it to new owners and the management fled. Both the CEO and my boss still work in media however, and neither lost a cent in the collapse because neither had their capital invested. It’s with scumbags like that, where there are no consequences for being bad bosses, that your theory fails.

    I don’t know a lot about employment law; I do recall at one point hearing someone mooting that owner-operators (with staff numbers under a certain figure IIRC) should be subject to less stringent rules than big corporations. That seems eminently sensible to me, and would allow the market forces Red talks about to work on those businesses to which they apply (though there’d still need to be sanctions for truly egregious conduct like sexual harassment).

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  36. David Garrett (7,278 comments) says:

    burt: Your reference to the sky supposedly going to fall in are not exaggerated…I was in parliament when the 90 day law was passed…I recall being astounded that the Socialists claimed it was so “draconian” – one of their favourite words – that they were going to ask the Governor General not to sign it!! I kid you not.

    They were also going to maintain a “roll of shame” for the hundreds of employers who were going to abuse the law by firing employees after 89 days and hiring a new one, and then doing the same thing again…They have gone very quiet about the roll of shame…I suspect it has few if any names on it…

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  37. WineOh (630 comments) says:

    @ burt.
    I hope that was an accidental mis-spelling of my moniker. I don’t need to be lectured on the 90 day law, I am an employer myself albeit of a small business not a large one.

    Although it was legal to do so, I chose not to insert the 90 day clause into the proposed employment agreement for my last major hire, though I have included it in my template and have used it for other hires. It hasn’t fundamentally changed the way that I do business nor manage HR, I’d like to think that I am one of the “good employers” – I take care of my staff, pay them a reasonable wage and pay attention when they have constructive suggestions about the business. As a result I have good engagement and usually a willingness to go the extra mile over & beyond what is written down on paper.

    There has been one hire that I have made that I came to regret over time. Initially at the recruitment point I had no qualms about the individual in question, but over a period of a couple of years they became a destructive part of the business. I had strong suspicions of regular theft of both goods and cash. The 90 day law was not in force at the time, but would have been well expired by the time things started coming to a head. We were painfully aware of needing to go by the book, have formal warnings and offers of support people etc which was a bureaucratic nightmare. In the end, the individual thankfully resigned on their own, saving me a lot of heartache. Their replacement was a breath of fresh air & haven’t looked back.

    On the other side, I did hire a part time staffer with a 90 day clause. They had seemed a good fit for the job but it became readily apparent that the skillset that they have assured us of was not up to snuff. Add to that a slight learning disability (they had admitted to another trusted staff member) and anxiety/mental illness. We were still reluctant to use the 90 day wording to terminate, and wanted to make sure that we gave the individual a fair go & considered that there had potentially been a contributing factor in us not providing the right kind of training that the person would respond to. After a major stuff up that left us in the lurch, we made contact and set a time for a “meeting that may result in disciplinary action.” 24 hours later they resigned. They knew they weren’t a good match for the job, and were letting themselves down as well as others.

    At the end of the day, I feel that the 90-day clause is an extra tool in the box for employers, especially small family business owners like me. It shouldn’t be used as a ‘fire at will’ power, though is open to abuse by bad employers. Its also not compulsory to use it, for example I was concerned that the key employee that I wanted to hire would go somewhere else if I insisted on it, and in hindsight has probably been the best hire that I’ve ever made. The bleating of the unionised left sees it as an attack on job security – which I can kind of understand but respectfully disagree with.

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  38. UglyTruth (4,551 comments) says:

    “I was in parliament when the 90 day law was passed”

    This clown doesn’t even know what the law of the land is.

    http://www.kiwiblog.co.nz/2014/08/general_debate_9_august_2014.html#comment-1377075

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  39. Unity (584 comments) says:

    You would probably know within a week how someone was going to turn out but 90 days is the better option given that some people may take a bit longer to learn the job, depending on how complicated it was and if training was needed. Any longer would not be a good idea. Imagine the employer knowing the person was unsuitable fairly early on but having to wait out the 6 months, or so, period. Totally unfair on both but especially the employer and it is his/her business after all.

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  40. burt (8,269 comments) says:

    WineOh

    That was certainly a typo, sorry. I totally agree with what your saying WineOh.

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  41. big bruv (13,895 comments) says:

    I happen to agree with Bedwetter on this issue. It annoys me that business people have to put up with clock watchers and underperforming staff simply because it is just too bloody hard to sack them.

    If it’s my company, my families livelihood on the line, then I should be able to sack somebody when I see fit. Good employees would have nothing to worry about.

    Furthermore, I should have the right to fire anybody who joins a union, or at the very least refuse to be an unpaid collector of union dues. If the scum unions want members then they should bloody well arrange payment with their meat head member. I do not want anybody on my staff who belongs to an organisation that is effectively working against my business.

    In my current role I did not sign a letter of appointment, I shook the hand of my employer and said that should he no longer want to continue the arrangement then all he had to do was tell me and I would be gone.

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  42. Redbaiter (8,882 comments) says:

    Rex, you make some good points about being an employee of big business and having to cope with idiots who have squirmed their way into management roles. However look what happened.

    Because the management was lax the company went bankrupt.

    Because the board put idiots in charge they lost their investment.

    So we have a collection of idiots in management and a collection of like idiots on the board.

    This is something that legislation cannot put right and it is fruitless to try.

    There will always be idiots in management and idiots on boards. Believe me, I know.

    But it is just something we have to live with. Your own actions in this case showed how to deal with it. If you’d stayed on while they went bankrupt you probably would have been worse off.

    A company is only ever as good as its management and the people who work for it. That’s why these kind of problems are best left to the people involved to work out. Laws just don’t work and like copyright, there are too many restrictions on natural rights to try and make them work.

    Private employment contracts are about as far as you can take it.

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  43. Redbaiter (8,882 comments) says:

    “In my current role I did not sign a letter of appointment, I shook the hand of my employer and said that should he no longer want to continue the arrangement then all he had to do was tell me and I would be gone.”

    No real need for one is there, if all you’re ever doing is selling clocked jap crap to woody beneficiaries.

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  44. big bruv (13,895 comments) says:

    Oh Bedwetter, that’s not very nice.

    Why are you so angry?, did you catch one of the other inhabitants of your sheltered housing unit having a turn on your Sarah Palin blow up doll?

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  45. burt (8,269 comments) says:

    big bruv

    I’d tap Sarah Palin, not a Sarah Palin doll though. I think Bedwetter is more likely to have a Clark doll. [ shudder ... I think I need to go scrub myself in the shower ]

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  46. David Garrett (7,278 comments) says:

    BB: I am just curious about what a “woody beneficiary” might be…

    Ugly: Whatever you are on my boy…it’s not working…

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  47. big bruv (13,895 comments) says:

    DG

    You have experience working on the rigs. I understand from your conversations with Bedwetter that he also has spent a little bit of time on the rigs as well. My question is this, do you think he would be brave enough to speak in the same manner if he was on the rigs?

    Or, do you think (as I do) that he is just an insignificant little man who is highly frustrated that nobody listens to him?

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  48. dad4justice (8,222 comments) says:

    “No real need for one is there, if all you’re ever doing is selling clocked jap crap to woody beneficiaries.”

    So bigot blouse is a used car salesman. They are the lowest of the low, no wonder he hates everything. No wonder it has so many UBFs and rust issues. It all makes sense now. Haha thanks Red.

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  49. UglyTruth (4,551 comments) says:

    Ugly: Whatever you are on my boy…it’s not working…

    Another dropkick who resorts to smearing people when he’s got no argument.

    The legislation of parliament is not the law of the land because the the law the land is related to the law of nature, and the law of nature has no place within the state’s description of law.

    http://www.kiwiblog.co.nz/2014/08/general_debate_9_august_2014.html#comment-1377075

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  50. David Garrett (7,278 comments) says:

    Ugly: I feel your pain…If I could work out what “argument” you are making I might respond to it…but then you are much more learned than me, so it’s no surprise I can’t keep up I guess…

    BB: From what I can work out, Old Red’s experience is confined to land rigs in Australia or PNG…I have certainly met chaps like him…blowarses generally, who abuse whatever position of power they get to…

    In Red’s day toolpushers (the boss man) on rigs could “run off” someone who they thought was incompetent, or whose face they simply didn’t like…To be “run off” means a summary dismissal…i.e. “You’re on the next plane/chopper/bus out of here”…

    I am sure Red has run a few hands (workers) off in his time, but it seems he never played among the big boys offshore…but then I have been on offshore rigs where guys have been run off…even quite senior guys…

    Here’s a funny thing about old Red though: He consistently denies being Russell Fletcher, former PNG oil rig man, but now of Mt Maunganui…but then he gives himself away by responding to references which only someone with a fair familiarity with the oil field would know…He even linked once to a little film of a rinky dink (small and not very powerful) rig in Australia, and hinted that he was one of the guys in it…Must have had a jug too many at the Mount RSA that day…

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  51. goldnkiwi (1,304 comments) says:

    I would like to see it extended by possibly a month. All relationships have a honeymoon period lol usually 90 days ;) and then true natures start appearing, especially if one party has been trying very hard to be on their best behaviour.

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  52. yankdownunder (31 comments) says:

    The problem with availing your self of the protections of the ERA is that once you do, you become persona non grata, even if you were right. This makes the use of ERA a non benifitial resource. Numerous examples of being “black listed” for using ERA, and I can testify to this first hand.

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  53. edward_l (17 comments) says:

    The real down fall of our labour law is that you have to keep really awful staff when you do a restructure, because they might be trainable. The law is so bad that if someone has a bit of experience in the new position offered, even if they were booted out from that role for incompetence, even if they have been given warnings for poor performance, even if they haven’t done that work for 10 years, even if they are so incompatible that people would rather leave than work with them, the law forces you to keep them on.

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  54. David Garrett (7,278 comments) says:

    edward: If that is what you think the law is, you need a new lawyer…

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  55. UglyTruth (4,551 comments) says:

    Ugly: I feel your pain…If I could work out what “argument” you are making I might respond to it…but then you are much more learned than me, so it’s no surprise I can’t keep up I guess…

    Don’t worry about DG, I’m sure some of the punters here will be able to figure it out.

    http://www.actsinjunction.info/corruption.html

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  56. edward_l (17 comments) says:

    David G, This is the way HR interpret the law in most large organisations ever since ‘Wang v Hamilton Multicultural Services’ 2010. This is the advice, confirmed by my lawyer.

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  57. edward_l (17 comments) says:

    DG, happy if you can find advice to the contrary.

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  58. Fentex (974 comments) says:

    I wonder if it’s too long. The sort of work that proceeds without contract and lends itself to these trial periods is generally less skilled, or if skilled probably involves a trade that I think reveals ability, inability or fractious nature much more promptly.

    I would be tempted to shorten the period to 60 days, which I would think ought please Unions a bit because it would be a slight discouragement to the practice they may fear of employers just turning over unskilled workers to keep pressure on wages.

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