Union nonsense

April 27th, 2013 at 11:00 am by David Farrar

Stuff reports:

Council of Trade Unions president Helen Kelly said many of the changes appeared technical, but taken together they were the biggest assault on workers rights since the early 90s.

I thought that was the 90 day trial period? Remember all the claims of how it would lead to horrific abuse? Well – where are the horror stories? we were the only country in the OECD without a proper trial period law, and they claimed it was the end of humanity or something when it came in.

The changes would not only affect union members but hundreds of thousands of other workers covered by collective agreements, she said.

What nonsense. It is illegal for anyone to be on a collective agreement unless they are a union member. So what Kelly has said is impossible. There are no workers on a collective contract who are not union members.

The changes are here:

  •  The Authority will have to either provide an oral determination at the end of its hearing, followed by a written record within three months
  • The extension of flexible working arrangements so any employee, not just caregivers, can ask for flexible work. Employees will also be able to ask for flexible work arrangements from the start of their employment.
  • A return to the original position in the Employment Relations Act where the duty of good faith does not require the parties to conclude a collective agreement. Instead, the Employment Relations Authority may declare whether collective bargaining has concluded.
  • Allowing employers to opt out of multi-employer bargaining.
  • Allowing for partial pay reductions in cases of partial strike action.
  • Removing the 30-day rule that forces non-union members to take union terms and conditions.
  • Changes to Part 6A so employers have greater certainty over the transfer of employees in certain industries such as cleaning, catering, orderly and laundry – if there is a restructuring or change in the contracted service provider. Small to medium-sized enterprises with fewer than 20 employees will also be exempt.
  • Greater clarity as to what confidential information employers are required to provide to affected workers in situations such as dismissal or redundancy.
  • Parties will be required to provide notice of a strike or lock-out.

Most of these changes were in National’s 2011 election policy. It is good they are keeping their word and implementing their policy.

Very pleased to see the 30 day rule is going. It is a stealth form of compulsory unionism where new staff are forced onto the collective contract and will become union members unless they opt out after 30 days.

My view is that union membership decisions should be purely between the employee and a union. if an employee wants to join a union they should go to their website, pay the fee, and join up.

UPDATE: To clarify the Employment Relations Act defines a collective agreement as being between an employer and a union covering at least two employees. Only a union can be party to a collective contract. The law previously allowed any group of employees to negotiate a collective contract.

Non union members can have the same terms as a collective contract in their individual contract, but they are de facto union members who still have to pay union fees – they just don’t get a vote. This is what has the unions so worried – they’ll lose the income from new employees who are forced into paying them fees if they do not opt out.

 

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Stupid

April 3rd, 2013 at 3:00 pm by David Farrar

Stuff reports:

A Gisborne man was justifiably fired after his boss saw Facebook pictures of him at a waka ama championship when he was meant to be at home sick, a court has found.

Bruce Taiapa has lost an appeal to try and overturn an Employment Relations Authority ruling that his employer, the training institute Turanga Ararau, was within its rights to sack him in July 2011 because he misused his sick leave.

Employment Court chief judge Colgan backed up the authority’s ruling in a decision released yesterday.

In March 2011, Taiapa, 59, asked to take a week’s leave without pay so he could attend the waka ama championships in Rotorua. He was granted only three days off because no-one was available to cover his work.

The next Monday, he called in sick, saying he had a damaged calf muscle.

Two days later, his boss saw on Facebook a picture of him at the championships. Taiapa was smiling and giving the thumbs-up.

That is beyond stupid – both the calling a sick when you are not, but competing in waka champs and being photographed there.

Once he returned to Gisborne, Taiapa got a doctor’s certificate stating that he had been unfit to work for the past week. He returned to work three days later.

This is one of the reasons I am skeptical of the numbers on the sickness benefit. It is all too easy to get a certificate.

After a series of discussions, manager Sharon Maynard dismissed Taiapa for misusing his sick leave and misleading his employer. Maynard said she had lost trust and confidence in Taiapa.

Taiapa’s lawyers argued Turanga Ararau should not be able to dictate where Taiapa recuperated from his illness.

I don’t think taking part in a waka championship is recuperation!

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Why we need more substance over process in employment laws

January 25th, 2013 at 12:00 pm by David Farrar

Natalie Akoorie at NZ Herald reports:

Mr Gostmann was dismissed without notice from Independent Refrigeration and Electrical in Whakatane in August last year after making a series of costly and serious errors.

In one of the incidents an apprentice asked Mr Gostmann if cables had been isolated when they had not. The cables short-circuited when the apprentice went to move them and he narrowly avoided electrocution.

So almost killed someone.

When Mr Gostmann was interviewed for the senior position early last year, he told Mr Faber he was a refrigeration engineer with 15 years’ experience in South Africa. But when he could not perform basic duties alarm bells rang.

Incompetent.

When Mr Faber made inquiries with Mr Gostmann’s former employers in South Africa he was told Mr Gostmann was merely a handyman.

Lied.

His only qualification in the industry was the equivalent of a two-week course completed for immigration papers and that a reference from his former employer was actually signed by an unwitting office person.

Unqualified.

ERA member Rachel Larmer also accepted evidence that Mr Gostmann’s named referee was someone who worked at a supermarket, rather than at a coolroom and display refrigeration manufacturing company in South Africa, as stated on Mr Gostmann’s curriculum vitae.

However, she criticised Independent Refrigeration for not attempting to improve Mr Gostmann’s poor workmanship through a performance management or monitoring process.

He lied about his experience and was unqualified – and it is their responsibility to improve his performance?

She also said the company should have carried out more thorough reference checks but acknowledged Mr Gostmann was 50 per cent to blame for his dismissal because his work was not up to standard.

The reference was effectively false, and again this is the company’s fault!

She told Independent Refrigeration to pay $10,304 to Mr Gostmann for distress compensation.

Incredible.

Who would want to be an employer?

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Drinking on the job

December 24th, 2012 at 12:00 pm by David Farrar

Abby Gillies at NZ Herald reports:

A company has been cleared after firing two senior workers and health and safety representatives caught drinking in the locker room during a liquor ban.

Henry Nee Nee and Andy Nathan claimed they were unfairly dismissed from Auckland-based import and export handling company C3 following the February incident that involved a group of employees drinking on site.

They said they were singled out for disciplinary action because they were union delegates and representatives on the health and safety committee.

Does being a union delegate mean you can drink on the job?

I would have thought being a health & safety rep would require model behaviour.

Nathan denied drinking on the premises and Nee Nee said he had drunk only ginger beer.

However, the investigation concluded Nee Nee had invited a group of six employees to drink beer in the locker room and all five drank 66 bottles of beer between them.

66 bottles between five? That’s would be impressive if it were not at work.

In disciplinary meetings, Nee Nee and Nathan admitted they had initially falsely denied their involvement, saying they had acted unwisely.

In April they were dismissed for serious misconduct – a decision they appealed against.

ERA member Eleanor Robinson found that unlike the other men involved in the incident, Nee Nee and Nathan “had tried to mislead C3 about what had occurred … and had not admitted their culpability until the disciplinary meetings on 5 April 2012″.

So, as if often the case, it was the lying that got them sacked.

As an employer I’ll often only give warnings even if dismissal is warranted. But if an employee lies, that makes it incredibly difficult to ever have sufficient trust in them again. We all stuff up at work from time to time – but lying about it makes it worse.

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Legal to sack a hottie

December 23rd, 2012 at 7:00 am by David Farrar

Reuters reports:

The Iowa Supreme Court has ruled employers in the state can legally fire workers they find too attractive.

In a unanimous decision, the court held that a dentist did not violate the state’s civil rights act when he terminated a female dental assistant whom his wife considered a threat to their marriage.

The seven justices, all men, said the basic question presented by the case was “whether an employee who has not engaged in flirtatious conduct may be lawfully terminated simply because the boss views the employee as an irresistible attraction”.

The high court ruled that bosses can fire workers they find too attractive and that such actions do not amount to unlawful discrimination.

The actual court judgement is here.

I await the PSA standing up for the rights of hot workers not to be discriminated against.

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Now that’s an abusive boss

December 8th, 2012 at 4:00 pm by David Farrar

News.com.au reports:

Former Mildura laundry owner Kevin Andrews has been convicted of repeatedly bullying several of his workers physically, psychologically and verbally at his business between 2007 and 2009.

Magistrate Hugh Radford said Andrews’ “disgusting and appalling” behaviour had caused workers to suffer nightmares and depression up to five years on.

Mr Radford said Andrews had asked one employee to bring his dogs to the laundry, “and if an employee stuffed up they would be bitten by the dogs, that is the employee would be locked up with the dogs in a shipping container”.

“Further the accused threatened the employees that he would dissolve them in acid, a substance that was available to them in the workplace,” Mr Radford said. …

Andrews also referred a female employee as a “big fat bush pig”, called women “brain-dead c—s” and had said “all women are dogs”.

I’m amazed he was only fined $50,000!

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Labour now wants to unionise paper boys!

December 5th, 2012 at 2:00 pm by David Farrar

Lisa Beech from Caritas writes in the Herald:

Parliament will this week debate whether working children aged 16 or younger should be regarded as employees rather than contractors, when Te Tai Tonga MP Rino Tirikatene’s private member’s bill is introduced on Wednesday.

The bill is here. It states:

The purpose of this Act is to amend the Employment Relations Act 2000 to provide that all persons aged 16 and under who perform labour for remuneration in New Zealand are to be regarded as employees, with all the rights that such status confers.

Oh good god. That means babysitters and paper boys would now become employees. Even Scouts doing bob a job might end up as employees.

The minimum wage act would probably then apply, so 10 year olds can’t be hired for less than $10 an hour!

Nice to see Labour focused on the big issues such as giving 16 year olds the vote and 10 year olds the right to go to the Employment Relations Authority!

Of concern to us was that many of the children working as contractors were in turn sub-contracting younger siblings to do their work – over half of those children in our study involved younger brothers and sisters in their work.

Disgraceful.

While some worked under parental supervision, others did not. One 12-year-old had sole supervision of his 8-year-old brother and 6-year-old sister while undertaking delivery work on the road.

By contrast, the directly employed children were expected to do their rounds themselves, or had sick leave cover provided from the wider pool of employed children.

This must be stopped. You can’t have younger siblings helping their older siblings out.

We learned subsequently that the year after the release of our 2007 Delivering the Goods report, a 6-year-old girl died on the roads while accompanying her 12-year-old brother on his delivery round.

Very sad, but kids die in accidents. Some fall down drains. Others get hit by cars. Each loss is a tragedy. But that doesn’t mean turning kids from contractors into employees will mean no such accidents happen. And note in this case the six year old was not substituting for her brother – she was accompanying him. This is what kids do – like to hang around with their siblings and help them (or annoy them).

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Redundancy law

November 29th, 2012 at 7:00 am by David Farrar

Susan Hornsby-Geluk from Chen Palmer writes in the Dom Post:

 Employees, listen up – here is something you may not know. If you are made redundant you will not be entitled to payment of any redundancy compensation unless you have an employment agreement which provides for this. It does not matter how long you have worked for a particular employer: no contract – no entitlement.

Harsh? Well, Labour MP Sue Moroney clearly thinks so. She recently introduced a member’s bill to Parliament which provides for minimum entitlements for employees if they are made redundant.

If the bill becomes law, every employee would be entitled to at least four weeks’ notice of their redundancy. They would also be entitled to redundancy compensation of four weeks’ pay for the first year of employment plus two weeks’ pay for every subsequent year, up to a maximum of 26 weeks’ pay in total. A similar bill was voted down by the National-led government in 2010.

This is trying to turn the clock back to the 1980s. Redundancy provisions should be negotiated on a case by case basis in collective or individual contracts. One size fits all laws are bad and kill jobs.

Employees may need greater protection in tough economic times, but introducing mandatory redundancy compensation to the level envisaged by Moroney could have unintended consequences.

In most cases the impact of such legislation would be felt by small employers. In the case of large employers, including government agencies, most of these businesses already provide for redundancy compensation in their employment agreements. So, for these employers the legislation will make little or no difference.

However, take your local dairy employing a handful of people. If the business has to restructure to prevent it going under, requiring the employer to pay significant redundancy compensation will only hasten the demise. The knock-on effect is the loss of employment of the other staff.

Exactly.  When a business is already struggling, onerous redundancy provisions can send it under. Labour wails about the lack of jobs on the one hand, yet keeps putting job destroying measures up.

Interestingly, a recent United States study indicated about 57 per cent of men negotiated employment agreement offers, whereas only 9 per cent of women did. In other words, they just accepted what was offered.

This is a fascinating statistic and in my opinion is the largest factor by far in the gender pay gap.

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Part 6A restricted

October 30th, 2012 at 4:00 pm by David Farrar

Kate Wilkinson has announced:

Cabinet has agreed to further improvements to the Employment Relations Act 2000, including changes to Part 6A that deals with the cleaning, catering, orderly and laundry industries, Labour Minister Kate Wilkinson said today.

The objective of Part 6A is to provide continuity of employment for employees in specific industries when a business is restructured or sold.

“A review of Part 6A found that there were significant operational issues around transferring employees’ entitlements and information to the new employer,” Ms Wilkinson says.

“Proposed amendments will fix these issues and provide more certainty and clarity for employers while at the same time protecting key benefits for affected employees.

In addition, the review found that while larger businesses had been able to adapt better to the requirements of Part 6A, small and medium sized businesses faced greater proportional costs.

“For example, a husband and wife cleaning team who tender and win a small contract may be currently required to take on any staff doing the work under the previous contract owner.

“That’s why Cabinet has also agreed to exempt small and medium businesses – those with fewer than 20 employees – from the provisions of Part 6A where the SME is the incoming employer.”

Employees in small and medium enterprises account for approximately a quarter of those in affected industries.

I’ve always regarded Part 6A as anti-competitive nonsense. Forcing the company that wins to hire the staff of the company that loses. Doesn’t provide much incentive for staff to make sure their company keeps the contract – their jobs remain.

Restricting it to large contractors is a step in the right direction, and welcome. However personally I’d scrap 6A entirely.

There’s some other welcome changes too:

 A return to the original position in the Employment Relations Act where the duty of good faith does not require the parties to conclude a collective agreement.
• Empowering the Employment Relations Authority to declare in certain circumstances that collective bargaining has ended.
• Allowing employers to opt out of multi-employer bargaining.
• Allowing for partial pay reductions in cases of partial strike action.
• Removing the 30-day rule that forces non-union members to take union terms and conditions.
• Changes around the disclosure of personal information following Employment Court judgments involving Massey University.

Almost all of these were in the 2011 manifesto, so National is simply keeping its word. They are all pretty minor – but important none the less.

One other change:

The right to request flexible working arrangements will be extended to all workers, right from their first day on the job – currently only caregivers are eligible and only after six months of employment.

I think a lot of the future will be people working different and more flexible working hours, rather than the standard nine to five, five days a week. In some jobs too, a lot can now be done from home.

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$5,000 for threatening to smash your boss

October 25th, 2012 at 1:01 pm by David Farrar

The Herald reports:

 A telemarketer who told her supervisor she was going to “smash her” has been awarded $5000 for wrongful dismissal. …

Although the women disputed details of the cause, the ruling said it was accepted that they yelled at each other and Cumming said she would “smash” her boss if she did not shut her mouth. …

Immediate after management called at which Cumming had no support person.

At a second meeting she grudgingly apologised to Boon, but warned of further reaction if her supervisor “got in her face again”, said the ruling.

Cumming was then dismissed after director Craig Hudgell said “the threat of violence outweighed all other considerations”.

Absolute management acknowledged the dismissal was unjustified.

The authority ordered the company to pay Cumming $5000 and reimburse her filing fee of $71.55.

The company did get the process wrong, but how frustrating must it be to pay $5,000 to an employee you had to sack because she threatened violence against other staff. I think this is a good example of too much focus on process over substance.

I don’t think the initial outburst justified sacking, but to them in a disciplinary meeting assert your intention to do violence if her supervisor annoys her, is surely grounds. You have a responsibility to other staff. Again, they did not follow correct process and admit this, but how very frustrating.

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Turning employees into shareholders

October 9th, 2012 at 9:01 am by David Farrar

The Herald reports on a policy just announced by UK Chancellor George Osborne:

The chancellor then sprang a surprise with his plan to swap shares for rights.

Workers could buy up to £50,000 in shares of the company they work for with all profits being tax free. In exchange employees would abandon their rights on unfair dismissal, redundancy and flexible working.

British unions immediately opposed the plan, which is due to come into effect in April 2013.

So long as it is voluntary, I think this is a nice idea. Businesses work better when employees have a stake in it as shareholders. However not sure one does it by way of tax breaks.

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Hide says Repeal 6A

October 8th, 2012 at 12:00 pm by David Farrar

Rodney Hide writes in NBR:

You win the contract to clean the local hospital. You succeed because you are good at your job and have a good crew.

The previous contractor was slack and expensive. The hospital gives him one month’s notice. It’s a good result for you. And a good result for the hospital.

But then Part 6A of the Employment Relations Act kicks in. Part 6A enables the existing cleaners to transfer your business. The purpose of this provision is to protect “vulnerable workers”.

Part 6A defines the vulnerable workers by the work they do and where they do it. Essentially, it covers industries such as cleaning and food and laundry services. The real protection is to existing contractors.

Indeed, the previous contractor told the hospital it was no use dropping him in your favour because Part 6A means nothing much would change. It would be the same crew on the same wages and conditions doing the same job. 

Part 6A locks in existing workers and sloppy work practice. It doesn’t protect “vulnerable workers”.

It protects slack businesses and poorly trained and managed workers. It’s anti-competitive. It drives up the cost of cleaning and laundry services including for government, which is the major country’s buyer. 

I regard it as horrific that a winning contractor has to keep on the staff of the losing contractor, and the same terms and conditions. It destroys their ability to be more innovative and flexible.

National rightly slammed the Labour government for introducing Part 6A in 2006. But National in government has done nothing.

There has been a required statutory review of Part 6A in 2009. But then nothing. The minister is still sitting on the result.

The evidence is clear. Part 6A can’t be amended. It should be repealed.

I agree. No employer should be forced to employ staff from a competitor. It also destorys any incentive for staff to perform well for their employer, if they know that even if their employer loses the contract they are guaranteed jobs with the next employer.

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The vulnerable campaign

September 11th, 2012 at 1:00 pm by David Farrar

NZ Herald reports:

A Dunedin-based cleaning company has taken its campaign online saying part of the Employment Relations Act is failing businesses – the site called “vulnerable minister” targets Minister of Labour Kate Wilkinson.

The site is here.

Crest Commercial Cleaning launched the website last week after three years of lobbying the Government to change part 6A of the ERA, which was set up to protect ‘vulnerable’ contract workers.

Under the law if a business changes its contract, ‘vulnerable workers’ are given the right to transfer their employment under the same terms and conditions – the outgoing contactor has a month to notify the new contractor if employees want to transfer.

Crest managing director Grant McLauchlan said the legislation was ambiguous and needed clarity.

He said his company were finding out the day before it took over a new contract.

“We want to be told in due course, because we get to the last day and don’t know if people are electing to transfer – we are left not knowing if we need to recruit our own people.

“It’s so ambiguous, and every time we try and work it out we end up in the employment court.
Personally I don’t think the clause should remain in law at all. A company winning a contract should not be obligated to hire the staff of the losing company.
But if such a clause is to remain, it should at least be workable.
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Employees ordered to pay $4 million

June 15th, 2012 at 3:00 pm by David Farrar

Both employers and employees breach employment contracts, but normally action is only taken against an employer. Let’s face it, if for example an employee resigns with only two week’s notice instead of the required four – it is not generally worth your time to spend money enforcing the contract.

But Andrew Scott-Howman blogs at Workforce on a recent NZ case where it was:

It’s one of the most difficult areas of employment law : what to do where an employee has acted in breach of a restraint, or an obligation of confidentiality. But a recent decision of the Employment Court gives heart to employers – where you can establish breach, some serious consequences may follow for employees.

The case is Rooney Earthmoving v McTague, Whiting and Bartlett (unreported, Employment Court Christchurch, 23 April 2012).  It concerned three men, each of whom had been employed by the plaintiff before establishing a competing company (BMW Contracting).  A previous decision had established that the men had variously acted in breach of a number of contractual obligations owed to the former employer, including enticing away staff, securing customers and using the employer’s confidential information. …

First, the contractual measure of loss will often do just fine. In Plain English, these employees were liable to put the employer in the same position it would have been in if the various contractual breaches had not occurred. In this case, that meant a complicated assessment to work out exactly what business the employees had taken away from their old employer as a result of their breaches.

Secondly, some limitation had to be applied to the damages assessment (ie at some point, if the employees hadn’t acted in breach they would have become legitimate competitors). This involved the application of the doctrine of remoteness – an enormously complicated and contentious area of law in itself.

Finally, the quantum of loss assessed here was, on any view, massive : $4,290,000 – and, of course, because the debt is owed jointly and severally the employer can go after one, two, or all of the ex-employees for the whole amount.

As you can probably tell, this case is an important one for lawyers who may be called upon to advise in cases involving breaches of restraints and confidentiality.

But it is more than that. It is a decision that illustrates that the Court will not hold back in ordering massive damages – where a case justifies that.  And that sort of order will not be a “finger to the wind” type of award, but an astute objective assessment of actual contractual loss.

A $4 million award must be one of the largest in NZ – and especially for an award against employees, not an employer.

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The sky is falling … the sky is falling

May 16th, 2012 at 2:00 pm by David Farrar

The CTU is a bit like Chicken Little at the moment. On RNZ yesterday on minor changes to employment law…

The Council of Trade Unions says the changes to industrial relations laws being considered are the worst attack on workers’ rights since the 1990s

In fact the changes are very much around the margins, and fairly in-substantive. The Government should require unions to collect their own membership fees, rather than force employers to be unpaid fee collectors ofr them – then they really would have something to complain about.

But the “worst attack since the 1990s” line is now new. It’s exactly what the CTU said about the 90 Day trial periods in their 2010 submission:

 “The largest step backwards in workers’ rights since 1990.”

I guess they have a macro on their computers that just inserts that phrase automatically into releases and submissions!

 

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Partial pay for partial work

May 14th, 2012 at 8:53 am by David Farrar

Danya Levy at Stuff reports:

The Government also wants employers to be able to deduct the wages of workers who undertake partial strikes and the papers show new provisions which would allow them to be paid at less than the minimum wage.

Partial wages for partial strikes seems fair to me, just as you get no wages for a total strike.

If you don’t give employers the ability to do partial wages for a partial strike, then their likely response is to lock the employees out entirely – which I think is best avoided.

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The Talleys dispute

May 13th, 2012 at 10:29 am by David Farrar

Jon Morgan at Stuff has a long feature on the Talleys and Affco dispute. One extract:

As Talley’s influence increased so did anti-union activity, according to Meatworkers organiser Roger Middlemass. “It was like a cold front arriving.”

He accuses Affco of a string of anti-union acts, including encouraging workers not to sign with the union and of banning the union from posting notices, including its financial statements, in plants.

“It is Dickensian,” he says. “This is not even last century stuff, it’s the century before.”

One example, he says, is the inclusion in the disputed contract of a clause that talks of making union members redundant on the grounds of irreconcilable differences between them and the employer, or them and other workers, or when “the interests of the employer would be best served by terminating the union member’s employment, not withstanding that the union member has not been guilty of any conduct or omission that would justify dismissal on the grounds of misconduct or poor performance”.

“It means that the employer can just say it’s in my interest that you don’t work for me any more. And you can’t take it to court because you’ve not been dismissed, you’ve been made redundant,” Middlemass says. “The word draconian isn’t strong enough to describe this.”

Affco operations manager Rowan Ogg says this clause is “reasonably standard” and that he has it in his employment contract.

Assuming it has been correctly reported, then I have to say the union has a very reasonable case here.  An irreconciliable differences clause is not reasonably standard. The only place I knew which has them is Parliament, because it is impossible for an MPs office to function if the MP doesn’t have total trust in their staffer/s. But this clause probably wouldn’t even stand up in court, which is why there is always a payout of three or more months with it, if triggered. And often, another job found for the staffer with another MP.

That clause basically does ask meat workers to surrender their employment rights, and allow AFFCO to fire them for no substantive reason. Now I’m in favour of trial periods where you can do that as it is always a risk how a new employee works out. But I would not sign a contract like that if I worked at AFFCO.

If reported correctly, the clause also seems confused. Positions are made redundant, not people. You can not have a clause saying you are made redundant if we decide we do not like you.

I am no fan of the tactics of the Meatworkers Union. But that does not mean that they are wrong in refusing to sign the proposed contract. I would not sign a contract like that if I was a meat worker.

 

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Hung-over can claim sick leave

April 23rd, 2012 at 10:00 am by David Farrar

Craig Mundy-Smith and Mark Robotham at Stuff reports:

Q: An employee phoned this morning saying that he was sick and couldn’t come into work. I know for a fact that he was drinking heavily last night and I think he’s just hung-over. What can I do about it?

A: While some may think that an employee who takes sick leave to recover from a bad hangover is committing an act of misconduct, this is not the case. An employee who is hung-over is just as entitled to claim sick leave as an employee with the flu. Your employee may even admit they are hung-over, without comeback.

Parliament didn’t include a definition of the term “sick” in the Holidays Act 2003.

When the Court of Appeal was last asked to define the meaning of “sick” it held that “sick” means “unfitness for health reasons of any nature and however caused”.

While there may be a moral distinction between self-induced sickness such as a hangover and other forms of sickness or injury, there is no legal distinction.

Furthermore, “sickness” caused by a hangover is a legitimate reason for a GP to provide the employee with a medical certificate.

It may be cold comfort, but by taking sick leave your employee is probably doing the “right” thing. Most workplaces deem reporting to work while under the influence of alcohol to be serious misconduct.

An employee with a thumping headache and the “dry horrors” is still under the influence of the alcohol in their system. They should not be at work in that state.

I didn’t know this, and it might be an issue for Parliament to look at in their next review of employment law. There should be a distinction between self-induced sickness, and accidental sickness.

Some employers, such as airlines, have alcohol policies that class drinking in the eight hours preceding work to be serious misconduct. Employers whose employees work in safety sensitive areas, or around hazardous materials, should consider introducing such policies.

I wonder if an employer could discipline an employee who is sick due to a hang-over – not for taking sick leave, but for their actions in causing themselves to be unable to work. The “good faith” nature of an employment agreement would suggest that an employee who is constantly sick due to drinking alcohol, would be in breach.

If this is an irregular occurrence, “suck it up” and let it pass. You do not want a hung-over person at work and everyone has the right to go celebrate once on a while.

I tend to agree with that.  Sometimes a week night turns a bit messy, and you are affected the next day. They key thing is this should be rare.

I can’t recall ever taking a full day off due to a hang-over. Once I didn’t make it in until 10.30 am, but to be fair we had only stopped drinking at 6 am. Usually a hang-over is worn off by midday.

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NRT on workplace flexibility

April 3rd, 2012 at 1:00 pm by David Farrar

Idiot/Savant blogs at NRT:

National is actually doing something positive for ordinary people for once, with plans to extend flexible working hours provisions – which currently apply only to caregivers – to all workers. Its a good move. The Department of Labour’s review of the provisions found that there had been no problems with their implementation (contrary to the wailing from employers when the law was passed), and that it produced significant benefits for employers (such as reduced turnover and improved productivity).

I’m all in favour of flexible working hours. If only MUNZ were also!

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Why our IR laws still need changing

January 30th, 2012 at 3:00 pm by David Farrar

Jo McKenzie-McLean at The Press reports:

A Christchurch retail manager who told her employer: “F..k you, I am going”, has been awarded $8000 for unjustifiable dismissal.

Yes, the $8,000 went to the employee not the employer.

The authority’s written findings state that Sullivan’s employer had “seized the opportunity” to be rid of Sullivan after a “troubled” employment relationship, including four warnings the employer says it issued for Sullivan’s abusive conduct and quality of work.

So there were four previous warnings!

“Ms Martin was negative in the way that she approached me, being abrupt. I accept I threw the rosters on the floor. I said I was sick and in my frustration I said: `F..k you, I am going!’ I picked up my bag and left. I left crying and upset.”

By her own admission, she told her boss to get fucked, she threw the rosters on the floor and she stormed out of work, not returning that day. And just because she thought her supervisor was abrupt?

Sullivan did not show up for work the following day, with her employer denying Sullivan’s claims she had been granted a sick day.

So she took a second day off also.

“There was … no raising of concerns, no discussion or real attempt to ascertain Ms Sullivan’s views about what had occurred and therefore no consideration of those views.”

The authority granted her $5053 in compensation for loss of income, and $3000 for humiliation, loss of dignity and injury to feelings.

So the employer ends up $8,000 out of pocket, because they didn’t consider Sullivan’s views enough after she had stormed out, saying “fuck you, I am going”, and after four previous warnings.  You have to feel sorry for the employer.

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Sacked for an 80c blank DVD

August 10th, 2011 at 11:18 am by David Farrar

Vaimoana Tapaleao at NZ Herald reports:

A man who took a blank DVD from his workplace for his own use has been found to have been justifiably fired from his job.

David Dumolo worked as an information technology technician for the Lakes District Health Board, helping hospital sites in Taupo and Rotorua.

In May last year he was dismissed from his job after he took a blank DVD, without permission, for his personal use.

My first reaction to this is that it was vast over-kill. Hell, I’m pretty sure I’ve taken the odd blank CD home in the distant past, just as I’ve sometimes taken a pen home.

A month before he lost his job, Mr Dumolo had gone into work on Saturday, April 24, to get a blank DVD.

On the day he took the DVD, another employee spotted Mr Dumolo and reported him to their manager.

This changes it somewhat. I would not go into work to grab something for personal use. I’d go to Dick Smith’s and buy it. If it was a “I was heading out the door and realised I need a blank CD and grabbed one from my desk” I think it would be less of an issue.

The Employment Relations Authority found that Mr Dumolo’s dismissal was justified.

His managers’ decision to fire him was fair in that in the seven months he had been working he had been given a formal warning and had been spoken to on several occasions about other incidents.

This I suspect is the major reason he was sacked. There had been other problems and they used the DVD as a catalyst to get him fired.

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A horrendous own goal

June 24th, 2011 at 11:14 am by David Farrar

The original comments by Alasdair Thompson were unwise and stupid (and I will detail why further down) but his dual performances on TV3 are the stuff legends, or nightmares, are made of.

Watch his interview with Rachel Morton and then with Mihi Forbes.  I don’t think I have ever seen such sheer awfulness before. Lew at Kiwipolitico has done an initial list of 10 things the EMA did wrong.

This has gone from just being an issue about Alasdair to an issue about the EMA Northern. I can imagine employers all over Auckland quietly removing from their office walls their certificate of membership before anyone notices it. They’d be embarrassed to be associated with the last 24 hours.

This may have been the most effective brand destruction we have seen since Wellington Airport tried to rename Wellington into Wellywood, or the CTU declared war on hobbits.

Before we come back to the interviews let’s focus on the substance of the issue, as a couple of people think this is just about political correctness – far from it.The issue is why do women on average get paid less than men.

Now I do not think the gap between the average hourly rate for men and women is due to discrimination. Sure there may be the odd employer who is an old bigot (and they generally are old) and actually thinks women are inferior. But they are dying out.

Part of the gap is because men and women tend towards different jobs. More men are police officers and more women are teachers for example and police officers get paid more on average. But that doesn’t explain all the difference as there is a gap within professions also. On average male lawyers get paid more than female lawyers and male teachers more than female teachers.

There are a couple of factors at play here. One is historic – until 20 years ago men far outnumbered women at university in the high paying professions such as law, medicine etc. So most of the senior ranks are still men. Fortunately at entry level the numbers are now more balanced, so over time the gender mix may get more balanced at the senior or higher paying levels.

The other factor (which Alasdair correctly pointed out) is that more woman than men take a break from the workforce to be the primary caregiver, and when they return are more likely to be part-time so prospects for advancement are not so good as the person who has stayed working full-time throughout.

Even this doesn’t fully explain the gender gap, as there has been a recent study that even early on in a profession, men are being paid more than women. Now one has to be careful about a study over a profession, rather than just one employer, as differences between employers may account for the gap. However if one accepts the study at face value, a possible answer is that generally younger men are more assertive than younger women in pushing for pay rises and generally in salary negotiations.

So I tend to reject the thesis that women get paid less because evil employers discriminate against women and think they are inferior.

The possible factors I have laid out above are all about individual choice. You may choose to enter a less well remunerated profession, because it isn’t just about the money. You may choose to take a break from the work-force. You may choose not to be aggressive in your pay negotiations and take whatever is initially offered. These are all individual choices. Sure there are issues around societal expectations, but that is a debate for another day.

But here is why what Alasdair Thompson said is so stupid and counter-productive. he listed something women have no choice over (having a menstrual cycle) and cited it as a reason why women get paid less. He basically said that women are less productive because they are women. It undermined all his other (generally sound) arguments.

This reinforced every prejudice unions and others have about employers – and worse this comes from the head of EMA Northern.

And I can only imagine how women feel, to have to put up with having a menstrual cycle is I suspect bad enough by itself, so to have some employer bigwig come out and say oh yeah and your monthly cycle is also why you get paid less would be beyond infuriating.

It is possible of course that some women do have a high use of sick leave due to their menstrual cycle. But I do not believe, and have not seen a shred of evidence in support, the notion that the prevalence of this is significant enough to actually affect average pay rates.

Now the original comments by Alasdair were survivable. All he had to do was to say something along the lines of “A couple of employers had anecdotally mentioned to me this was an issue for them, but I was quite wrong to link it to average pay rates between genders as it is not a factor, and I apologise for mentioning it in the interview”.

But instead we got the Tv3 interviews where he could not have made a worse impression of himself. If Helen Kelly could invent a wicked caricature of an employers boss, she couldn’t have done better than what we saw. Rambling justifications, instructions to the cameraman as if he was the producer, demanding no interruptions, walking out, patronising the female reporters, constantly referring to his own staff members in a way which I found demeaning, standing over Mihi Forbes and angrily remonstrating with her, calling her a liar, demanding previous footage be declared off the record retrospectively and the list just goes on.

I don’t know how professional media trainers like Brian Edwards, Judy Callaghan, Bill Ralston and Janet Wilson even managed to watch a few minutes of the video without their heads exploding in despair that someone could come across so badly in what is meant to be a damage control setting.

EMA Northern need to consider what they have to do to repair the damage. My only advice is that it does not involve Alasdair doing another round of TV interviews.

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The permament probabtion period

May 6th, 2011 at 11:00 am by David Farrar

Darien Fention announced:

Staff for Members of Parliament will now face the 90 day no rights trial period, unless they are employed to work for Labour, says Darien Fenton, Labour’s spokesperson for Labour Issues.

“Labour does not believe that 90 day trial period is fair, justified or needed and our caucus has unanimously resolved that no Labour MP or manager will accept a 90 day trial period as part of the employment of any new staff member,” Darien Fenton said.

This is hilarious hypocrisy, because Darien has forgotten to mention one key thing.

All parliamentary staff who work for an MP or a parliamentary party (even if they have worked there for 20 years) are effectively on a permament probation period where they can be dismissed at any time, regardless of performance.

In every employment contract there is a clause called “irreconciable differences”, which states that if your MP or Leader declares they have irreconciable differences, you lose you job in return for a payout.

So Labour trumpeting that their staff are protected from the 90 day probation period is meaningless, as Labour MPs can (and have) sack their staff at any time without any need to prove it is a justified dismissal.

The question that should be asked of Labour is why do they campaign to deny other employers the same rights they have as MPs to dismiss their staff purely because they no longer have confidence in them.

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Probation Period to be extended to Parliament

April 1st, 2011 at 10:00 am by David Farrar

I’ve been leaked a copy of what may be National’s most popular policy – extending the new 90 day probation period (which starts today) to Parliament.

The policy, which will require a change to the Electoral Act, will allow voters to sack an MP if they feel the MP is not working out. There will be two ways this could happen.

If 10% of an electorate MP’s constituents sign a sacking petition within 90 days of an electorate MP’s election, then their seat falls vacant. It is thought unlikely to be used often, due to the cost of a by-election. This will discourage opposition parties from using the provision recklessly, but allows the voters to take action if an MP is clearly just not working out.

The provisions around List MPs are harsher. A petition to sack an MP from their list spot can be lodged at any time. However it must be signed by at least 500 members of the party that MP represents in Parliament. This will provide an incentive for List MPs to better represent their party’s interests.

The policy has been approved by Cabinet, but not yet gone to Caucus, where there may be some resistance. However the case will be put to MPs that this just puts them on a level playing field with parliamentary staff who are on a effective permament probation period. Staff who work in a parliamentary or MPs office can be dismissed without cause at any time, under a provision in their employment contract called “irreconcilable differences” which is a fancy term for “am sick of you”.

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Paid to sleep

February 18th, 2011 at 1:00 pm by David Farrar

Maggie Tait of NZPA reports:

Paying overnight staff to sleep will cost more than $500 million over three years and changing the law may be considered, Health Minister Tony Ryall says.

The Court of Appeal yesterday upheld an earlier Employment Court decision against an IHC provider, which had opposed paying for sleep-over hours. Instead of a shift allowance of about $30, staff would get at least the minimum hourly wage.

If this is the law, then the law needs to change. If you are rostered to be on call then you should get some kind of allowance for this, but to get paid the same rate of pay for sleeping as for actually working is just ridicolous.

Staff know this. This is why they accepted jobs where you get paid at least the minimum wage for hourrs you actually work, and a lesser allowance for merely being on call.

If the law is not changed (or appealed to Supreme Cout) then $500 million will be be spent – and not extra patient or pupil will get better care due to it. It will be $500 million for a zero return. No IHC patient will get better care due to that $500 million.

I note Labour have said they would provide the extra funding. God know what rainbow they think they will find the pot of gold under. Their promises must be getting close to $10b now. Just last night their Botany candidate was promising that ECE funding would be increased to 1% of GDP.

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