Kiwiblog

The Australian reports:

THE Commonwealth Bank has threatened its employees with disciplinary action, including dismissal, if they do not report criticism of the bank made by others on social media channels, including Facebook.

The Finance Sector Union yesterday demanded the suspension of the bank’s new social media policy, accusing it of trying to restrict freedom of expression.

Bank employees have been told they must immediately notify their manager if they become aware of “inappropriate or disparaging content and information stored or posted by others”, including non-employees, in the “social media environment”.

It says the content may damage the bank and its reputation.

“For example, your friend could post an inappropriate comment about the group on your Facebook page or create a blog about the group,” the policy says.

As well as notifying their manager, employees must assist the bank with any investigation into the material, and its removal.

This goes way way too far, and on this issue I’m all with the union. You absolutely should not slag your employer off on Facebook, but you have no duty at all to report online criticisms of your employer to them. Employees are not the Internet Police in their spare time.

I mean it really is so stupid to be almost laugable – requiring you to nark on your friends if they criticise your employer online.

3 News has a story on Julie Tyler who is facing the sack from Burger King after she said on Facebook “Real jobs don’t under pay and over work people like BK does!”.

They also have a copy of the official letters from BK.

Sometimes an employer can over-react to comments on Facebook, but in this case I don’t think Burger King is over-reacting. She directly slagged her employer off in a public forum.

If she had not named the employer, then that would not be an issue. Likewise if an employee just posts about a bad day at work, then an employer might be over-reacting to take action. But the comments made by Tyler undermine the good faith needed in the employer/employee relationship.

As it happens, she was also on a final warning for swearing and customer relations.

NZIER have released research into the 90 day trial periods. What they did is:

Data are now available to analyse these impacts in the policy’s first several months in operation.¹ NZIER has conducted an initial analysis of the publicly available data from Statistics New Zealand’s Linked Employer-Employee Database (LEED), including April 2009 to September 2009. Our analysis assessed year-over-year changes in total jobs, accessions (hirings), and separations (firings) from 2005 to 2009 for six size categories of employers in 17 industries. The analysis controlled for seasonal variation in employment by identifying second and third quarter figures separately. Simple regression models² were estimated for the three employment variables. The models also included a variable indicating whether the trial period was in effect for the time period and firm size. The regressions used are a simple analytical technique; more complex models may be able to estimate the policy’s impact more precisely.

So this is an analysis of actual employer data from Stats NZ. So what did they find:

• The trial period appears to have increased hiring. On average, hiring by SMEs was almost six percentage points higher than expected, given the relative performance of other firms and the annual hiring trends.
• Total job numbers for these firms were also higher, by about two percentage points.
• These positive employment outcomes happened while hiring overall was falling. The model found that hirings fell on average in 2008 and 2009.
• There was little difference in hiring behaviours across industries.

A 6% improvement in hiring and a 2% improvement in job numbers are good outcomes. The extension of the 90 day trial period to all employers is a good thing.

Kate Chapman at Stuff reports:

Public servants will not be forced to have a 90-day probation period but it will not be ruled out in their contracts.

Well done Kate for accurately reporting the policy, rather than the hysteria that 90 day probation periods will be compulsory.

All that has been stated is that no government agency will agree to a collective agreement that forbids probation periods. If they agreed to such a thing, it would effectively ban grievance free probation periods.

Instead each agency will decide whether or not to ask for a probation period, when hiring someone.

A spokesman for the State Services Commission said government departments were always required to enact government policy. However, it would be silly to assume the 90-day probation period would be applied to everyone in the state sector, he said.

“You go through these incredibly long and arduous recruitment processes to get the best people, you don’t then turn around to them and say: `Oh by the way, we’re putting you (on a probation period),’. It’s just common sense.”

Exactly.

Incidentially in the UK they have just extended the grievance free period for employees from 12 months to 24 months. Shows how moderate the NZ policy is.

Victoria Robinson at the Dom Post reports:

A former Social Development Ministry employee landed in hot water after posting a Facebook description of herself as a “very expensive paperweight”, “highly competent in the art of time wastage, blame-shifting and stationary [sic] theft”.

The Employment Relations Authority in Auckland this week refused to uphold a complaint from Tania Dickinson, 34, that she was unfairly dismissed from her role as a prison reintegration case manager at Work and Income’s Kawakawa service centre.

She was sacked in April for her comments on the social networking site, as well as arson charges she was facing at the time, and an incident in 2007 where she had been given a formal warning for accessing records of clients that she knew.

I suspect her arson charges were the bigger factor. However one does wonder whether the descriptions of her job were in fact correct.

Parliament 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.

My God the CTU campaign against the 90 day law is wonderful. One of their early examples won a court case (proving that the law does not leave most workers without protections), and they have now released another video which totally undermines their argument:

In this video the aggrieved ex-employee says he was never told of an employment contract or a 90 day trial. He goes onto say he has never had an employment contract in any hospitality job.

This where the CTU campaign backfires. He did not sign an employment contract in which he agrees to a 90 day probation period. Therefore it does not apply. He is going to win damages in court.

You have to wonder how desperate the CTU is for “examples” when the best they can come up with are ones that don’t even apply.

Now you may wonder, what if he had signed an employment contract with a probation period. did they really sack him at the end of 90 days merely for putting “too much sauce and aioli” on servings?

I’m suspicious, because why would an employer sack someone who is otherwise a great employee just for that? That will just cost the employer money and experience getting a replacement.

Sure enough the employer has a different story – one the CTU and Labour forgot to mention:

Mr Collins had said Mr Greave was not sacked because he used too much sauce and aioli.

“On the last day, my mum, the owner of the cafe, said to him, cut the use out, it’s too much wastage.

“[He was sacked] because he would change menus, wouldn’t listen to me as a superior.

“He wouldn’t listen to any instructions either from the owners of the cafe or myself as manager. [He] wouldn’t do his job the way we required it.

“He just wasn’t what we were looking for in a chef and basically I believe he just wasn’t willing to have a younger … member in charge.”

Mr Collins, who is 22 years old, said his age was a problem for Mr Greave, who called Mr Collins “very inexperienced” in the video.

I have to say the employer’s version has the ring of truth about it. You listen to the video of the ex-employee and you get the impression he thought he was better than the owners and he was indispensable.

At the end of the day, why would they have sacked him if it was only using too much sauce?

In the NBR (behind the paywall) Matthew Hooton wrote last week:

“Good faith” remains at the centre of New Zealand’s labour laws and, until now, has delivered relatively benign industrial relations.

The problem is that the Employment Relations Act’s authors couldn’t have anticipated a person such as Australian Media, Entertainment & Arts Alliance boss Simon Whipp.

Australian unions are overbearingly powerful and notoriously corrupt, with historic links to organised crime. It was to people with that cultural inheritance that New Zealand’s actor unionists turned – implausibly, they claim, simply because they wanted a chat with the New Zealand Screen Production and Development Association.

In fact, Mr Whipp then conspired with other union bosses in Australia, Canada, the US and the UK to arrange a global boycott of The Hobbit, which would have cost more than 2500 highly-skilled, highly-paid jobs and unravelled an industry worth more than New Zealand’s entire exports of beef, butter or cheese.

But the problem has been solved, or has it?

Good faith is meant to be a mutual obligation, requiring parties to interact constructively. It covers the whole relationship between employer and employee, not just formal bargaining, and includes not only current but intended employers and employees – including those working under commercial contracts who want to become employees. …

Not even in their fevered imaginations could it be considered good faith to conspire with militant union thugs across the English-speaking world to organise a global boycott of a vitally important project which already pays above industry averages – and all without even giving prior warning to the employer of their intention to do so.

Actors aren’t alone in making a mockery of “good faith.” Similar conduct is under way in secondary schools from the PPTA, a union with a history of communist connections. It has no intention of dealing in good faith with the Ministry of Education because its true objective is industrial havoc in election year. The primary teachers’ union will no doubt also find a pretext for havoc in 2011, probably over national standards – a policy which, like few others, has received overwhelming mandates from parents and voters. Other unions plan to sabotage the Rugby World Cup.

So good faith seems to be rather lacking from the unions, Hooton says.

The government may also need to consider whether the law around “good faith” should be reviewed in the light of union antics. The provisions imposing good faith obligations on unions as well as employers could be strengthened. Or perhaps employers could be able to apply to the courts to have organisations like Actors Equity and the teacher unions proscribed and the requirement to deal with them in good faith removed. Or perhaps “good faith” needs to go altogether.

That would be a shame – but it would be Ms Walsh, Ms Ward-Lealand, Ms Malcolm, Ms Kelly and Mr Whipp who would be responsible.

By coincidence (or maybe not) I also had a phone call on Friday, saying that the laws around good faith need to be reviewed as the unions make such a mockery around them. Is it possible Mr Hooton is flying a kite for certain people within National who want to see change in this area? If so, they have certainly been given an opportunity to do so by not just the MEAA, but also PPTA and NZEI.

Like Matthew, I think this would be a shame. I think good faith is important in the employment realm. But it does need to apply both ways, not one way.

Darien Fenton at Red Alert blogs:

A UMR survey released today by the CTU shows that 80 per cent of New Zealanders oppose the Government’s planned changes to dismissal law.  Previous polls had asked the question about whether respondents supported a 90 day trial and unsurprisingly, the majority said yes – because after all these were already allowed under previous law.

But Darien is wrong in claiming the UMR poll shows 80% are opposed. The question that was asked is:

“Do you think that all employees should have the right to appeal if they think they have been unfairly dismissed, even if their dismissal was during the first 90 days of their employment?

Now that question is open to a very wide interpretation. An appeal can mean anything from asking your boss to reconsider, to appealing to your boss’ boss to “appealing” to the ERA.  The question is so wide, that it of relatively little value (in my opinion) in judging whether or not people support or oppose the Govt’s law change.

Note this is not a criticism of UMR.  This is a criticism of how Labour and the CTU have portrayed the results.

As a comparison, let us look at the poll done by Colmar Brunton for One News. It asked:

Currently employment law allows a business to take on a new worker and then if it does not work out dismiss that worker within 90 days without the worker being able to take a personal grievance claim. Currently the scheme only applies to companies with fewer than twenty employees but now the government plans to extend the 90 day trial period to cover all companies and so all new workers could be subject to the scheme. Some people believe this places workers in a vulnerable position but the government claims it creates jobs because businesses will be more willing to take on a new worker.

Do you think the 90 day trial law should be extended to cover all companies every time someone starts a new job?

Now this is a far better question (for judging if someone agrees with the Government’s proposed law change) as it tells people what the current law is, tells them what the proposed change is, and summarises arguments for and against.

Colmar Brunton found 60% in favour of extending the 90 day law to all companies.

This is a good example of the importance of poll questions. And again it isn’t that one question is necessarily “good” and one is “bad”.  It is about whether one can fairly interpret the poll result as reflecting what the public think of a proposed law change.

It is quite clear that the UMR result can not be used as representing public opinion on the Government’s law change. All it can be used for is representing whether people think there should be some sort of generic appeal from dismissal decisions – no details on who the appeal should be to – which is crucial. And an appeal is not the same as the right to take a personal grievance and get compensation etc.

One has to wonder why the CTU did not ask the same question as One News? The answer is obvious.

A few weeks back the CTU held up the example of Heather Smith:

Heather Smith was publicised in the union’s “name and shame” campaign after being sacked by Stokes Valley Pharmacy in Hutt Valley.

She had worked there for almost three years, but had to re-apply for her job late last year after the business changed ownership and name, and was sacked a few weeks later.

Now this case concerned me. Because the 90 day grievance free provisions are meant to apply to new employees only, not existing employees. I wasn’t convinced that a change of ownership could change things.

If her job was truly made redundant and she applied for a new job, then that may be a grey area – but if she was carrying on in much the same job then it would not be a true redundancy.

So I checked with the Minister’s office, and was told that the case the CTU had highlighted had gone to court – something not mentioned in the original media reports. This is a good thing, as it looked like the 90 day period had been misused.

And the court has ruled:

The first employment case brought to court under 90-day trial laws has gone in favour of a dismissed employee, prompting the Council of Trade Unions (CTU) to send a warning to employers.

Backed by the CTU, Ms Smith’s case ended up in the Employment Court, which ruled in a decision released today that the new employer had not complied with contractual requirements of the Employment Relations Act relating to the trial period, meaning laws preventing Ms Smith taking a personal grievance case were nullified.

The court also referred to “good faith” expectations and said the employer had not lived up to those in its dismissal of Ms Smith and there were grounds for a personal grievance.

CTU president Helen Kelly said the employer had relied on the law for complete indemnity from standards of decent employment practice, but was found to have breached both good faith requirements and terms in the employment agreement.

This is a good ruling by the court, and I am glad the CTU helped take the case. Unions do often play a valuable role in protecting some workers.

However I believe it was wrong to include this case as one of the 90 day examples, when there was in fact a lawsuit underway arguing it was not covered by the 90 day law. And indeed we have found out that the law is not as wide reaching as the CTU claimed.

Darien Fenton blogs a CTU video about the evil and oppressive 90 day trial law, quoting a “Florence Coen” who says she got sacked for no reason after 85 days in a job – possibly because she suggested the owner should not play a christian radio station at work.

We don’t know the employer’s side of the story, as they were not interviewed. What we do know, is that Florence Cohen (let us presume they made a typo” is a Labour Party activist.

Now this does not mean Florence’s version of what happened is not correct. But the failure to identify her as a Labour activist is significant, considering the Labour Party is campaigning to get rid of the law, and this means an activist is hardly someone unbiased.

In the comments Trevor Mallard tries to spin this as:

Lots of people join political parties after being treated unfairly. Good on you Florence.

Sadly for Trevor, the Labour site shows Florence joining in April 2009, and the law only came into force in March 2009, so it is impossible for Florence to have only joined Labour after a dismissal at the end of a 90 day probationary period under the new law.

I want to stress that I think Florence comes across well on the video, and I am not disputing she may have had a negative experience under this law. I don’t want people attacking a 17 year old who may have done nothing wrong.

My criticism is of the CTU for not doing full disclosure. Being a partisan activist is relevant information if you are put forward as a “victim” of a law your party strongly opposes.

An item in Trans-Tasman caught my eye:

The PM was quite bolshie this week about the CTU’s open letter and threats to cut off political co-operation. He reminded the CTU’s Helen Kelly he’d broken a National Party promise by heeding union pleas not to break what he called the union “monopoly” on collective bargaining. It’s something the CTU should “think about,” he said.

So let’s see if I have this right.

Prior to the last election the CTU ran advertisements and explicitly campaigned against National. They even targeted senior MPs in video ads.

Now if a business group such as BusinessNZ had run such a campaign against the Clark Government, they would have been frozen out of even getting to have meetings with Ministers.

Instead John Key gives the CTU direct access to him. And even better he agrees to hold off on implementing two of National’s election policies – employer consent for access, and removing the union monopoly for collective bargaining.

So just think about this. He has a National/ACT majority. He could implement his entire election policy and in fact some of ACT’s. But instead he agrees to defer two policies to keep happy the very same organisation that campaigned against him.

18 months later, he announces that one of the two deferred policies will be implemented. A policy that was explicit election policy. And on the basis of this, the CTU claims it will call for strikes, industrial action and refuse all co-operation.

There is a lesson in this for John Key. As admirable as it is to be Mr nice guy, and try actually extend the hand of friendship to the CTU, despite them campaigning explicitly against you, it was always doomed to fail. The CTU will always put first its desire to get Labour into office, and was always going to turn around and crap on you. They just needed the excuse.

I mean does anyone really think it is a rational decision to declare you are now against all free trade agreements and will try and stop them, just because a union now has to let an employer know at least a few minutes in advance if they want to visit?

The PM should get on and implement the remainder of the 2008 industrial relations policy. Unions should indeed not have a monopoly on collective bargaining. A group of employees should be able to negotiate a collective contract themselves without needing to form a union.

Likewise a lawyer should be able to represent a group of employees, and negotiate a collective contract on their behalf. You do not need a union to negotiate a collective contract. Labour merely passed a law requiring it. Under the former law, there were quite a few collective contracts that did not involve unions.

John Armstrong writes:

The left-wing activists who stormed the Sky City Hotel last Sunday in an inevitably futile attempt to force their way into the National Party conference should take a good hard look at themselves.

The noisy fracas with security guards inside Auckland’s Temple to Capitalism certainly got the activists what they wanted – top-of-the-bulletin coverage on that evening’s television news. But if they think such tactics are going to mobilise public opinion against the Government’s just-released package of workplace law reforms then they should think again.

Their actions were widely viewed within the Labour Party as unhelpful, though no one was saying so publicly.

Sue Bradford and John Minto charging a Police line just sends people into the opposite direction.

While others on the left have been quick to label National’s package as a “class war” being waged on the country’s workers, Labour has avoided using such over-the-top language.

When it comes to portraying National’s policy prescription, there is a danger of crying wolf. More so because much of the package is based on National’s 2008 election policy. That prescription pleasantly surprised some left-wing commentators for being so moderate and not a return to the Employment Contracts Act. They cannot now turn around and argue that the package released by Key last Sunday is designed to wage class war.

And many aspects will actually be welcomed by employees such as the ability to trade leave for pay.

Even the 90 day trial period will be popular with many employees I reckon. We’ve all seen new people hired at a workplace and within a week or two it is apparent they are not up to the job. It isn’t just the bosses, but the other employees, who often have to carry them until they finally leave.

First the Herald:

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

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

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

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

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

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

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

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

The Dom Post:

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

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

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

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

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

Finally the ODT:

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

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

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

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

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

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

1. Argentina (3 – 12 months)
2. Armenia (3 – 6 months)
3. Australia (3 – 6 months)
4. Austria (1 month)
5. Belgium (up to 6 months)
6. Brazil (90 days)
7. Canada (3 months renewable)
8. Cyprus (6 months)
9. Czech Republic (3 months)
10. Finland (4 – 6 months)
11. France (1 – 3 months)
12. Germany (6 months)
13. Ireland (12 months)
14. Italy
15. Japan
16. Jordan (90 days)
17. Korea (3 months)
18. Latvia
19. Luxemburg
20. Republic of Moldova
21. Pakistan
22. Portugal
23. Russia (3 – 6 months)
24. Serbia
25. Slovenia
26. South Africa
27. Spain
28. Sweden
29. Switzerland (1 – 3 months)
30. Thailand
31. Turkey
32. Ukraine
33. UAE (6 months)
34. UK
35. US (6 – 12 months)

This change is bringing NZ into the mainstream. We are catching up to Sweden, Switzerland, Italy, France and Germany.

Kerre Woodham writes in the HoS how job trials offer a lucky break:

One of the best cameramen I know started off at TV3 working for nothing. As a young pup, he shared a poxy flat with five other trainees.

Terry was on a two week unpaid work experience. After that, he just stayed, still without a wage, and worked every hour God sent to scrape together enough money to survive while he learned the tools of the trade.

The company got an enthusiastic worker bee for nothing; the kid got the experience he needed to get him the first foothold on the ladder of a career that’s taken him all around the world and to the top of his game.

I suppose the unions would see it as exploitation but Terry was grateful for the opportunity and TV3 got a talented young camera assistant for nothing.

Surely a win/win situation. And isn’t that what the 90-day trial is all about? Workers being given an opportunity to show their worth to an employer who may be uneasy about taking on new staff?

And 40% of those hired with a trial period, would not have been hired if the trial period provision did not exist.

There are also those who are technically proficient at what they do but are monumental pains in the arse to work with and who can be terribly damaging to a small- or medium-sized business that requires its staff to work together co-operatively. If you can trial workers to see how they fit with the rest of the team, that must be a good thing.

Ask anyone who actually has been an employer, and “how they fit into the team” is a crucial element – and something that CVs and even interviews can not always ascertain.

And if they do not fit into the team, the cost can be horrific. Not only are they unproductive, but other staff become unproductive, and you sometimes even start losing your good staff.

Anyway what are the other changes announced by National.

The Employment Relations Authority will have the ability to filter out vexatious or frivolous claims early on.

This is common for almost all tribunals.

The Authority will promote mediation by giving priority to mediated cases.

Oh how evil, promoting mediated settlements.

Behaviour that delays the Authority will be penalised.

I suspect this will be called the Lynne Snowden clause. Her battle with Radio NZ is still ongoing five years later!

Employers’ processes will not be the subject of pedantic
scrutiny.

This one is pretty damn important. Unless you are a large corporate with in house lawyers and HR teams, you are unlikely to get he process perfect. The process should always be fair, but too often an employer dismisses an employee for exceptionally good reasons, but the employee gets a few thousand on the way out for minor procedural issues.

Having said that, one needs to be careful not to encourage employers to be lax about following a fair process, and the exact details of any law change will be crucial.

The Authority will be moving to a more judicial mode of operation, with the right to cross-examine witnesses.

My translation of this is that too many witnesses are lying and getting away with it.

Rules on union access to workplaces will change, so that any access will require the consent of the employer. That consent cannot be unreasonably withheld.

I predict that this will be no big deal, despite the loud noise. All it is doing is saying a union should be polite enough not to turn up unannounced when entering private property. Like anyone else they make an appointment, so they may have to ring up and say we plan to come in tomorrow at 10 am to talk about “x”, and the employer will say yeah no probs unless it clashes with something else (maybe they have an important meeting of their own, or are on a deadline and the following day will be much easier).

Employees will be able to trade one of their four weeks’ annual leave for cash. This is only at the employee’s request and cannot be raised in salary negotiations.

Also election policy, and will be welcomed by many employees who will appreciate having a choice.

Holiday pay calculating entitlements will be simpler for employees who have variable hours and pay, using our new calculation known as “Average Daily Pay”. It’s based on the average of an employee’s pay over the past year.

Seems fair to me. Over a year, it should avoid the problem of calculating it just on a previous pay period, when hours may have been very low or high.

Employers and employees will be able to agree to transfer the observance of public holidays to another working day.

Not sure what problem this is solving, but generally flexibility is a good thing.

Maximum penalties will double for employers who don’t comply with the Holidays Act.

Good. Bad employers are the reasons unions push for labour laws that punish all employers. I’m all in favour of tougher penalties for employers who knowingly deprive their employees of their holiday rights.

Employers will be able to ask for proof of sickness or injury within three consecutive days of an employee taking sick leave – but they’ll have to cover the employee’s costs in obtaining proof.

I understand the sentiment behind this one, but am worried about practicality. If you wake up with a temperature, you often don’t go and see a doctor if it passes within a day. Same with food poisoning. So if an employer then requires you to see a doctor, there may be nothing to see by then.

Will be a good area for the select committee to consider how practical it is. The intent (less fake sickies) is good, but one can go overboard in this area.

The best thing about the Government’s decision to extend the option of 90 day grievance periods to all employers, is that the unions have planned a protest today outside the National Party conference.

Many delegates had lamented how much they miss the traditional protests outside, so thanks to the CTU for going to the effort to organise one.

Turning to the merits of the policy, I would commend to readers a copy of the DOL report into the current 90 day grievance free period for small employers. Not online yet, but expect will be on DOL website on Monday. Some key facts from their survey:

• Half of the employers who had hired someone since 1 March 2009 had used a trial period for at least one employee.
• 74% of those in a trial period retained their employment, 5% were still in the trial period and 22% were let go.
• In relation to the last employee hired on a trial period, 40% of employers said they would not (or likely would not) have hired that person without a trial period!!

That last paragraph is staggering, and shows how important the trial periods have been for convincing employers to take on extra staff. With the risk of being lumbered with an unsuitable staff member diminished, many more employers are willing to expand.

43% of those on trial periods were aged under 25, and this makes sense – it is employees with relatively little experience and skills who are the biggest gamble for an employer, and stand to benefit most. Of course one also need to delink the youth minimum wage from the adult one.

What I also found interesting is that a third of those dismissed during the 90 day trial period were let go within two weeks. This indicates that it becomes absolutely clear within days that the person has hired is just clearly not up to the job. Anyone who has been an employer knows this problem.

It costs considerable money and time for employers to employ staff. They want new staff to stay on if they can do the job.  But sometimes (and it seems to be around 1 in 10 of all new staff) they clearly show they are either lacking the skills or the temperament to be a productive member of a team, and the trial period allows the employment relationship to be halted without forcing the employer into spending tens of thousands of dollars on an employee who never contributed much of value to the business (it generally takes some months for new employees to come up to full speed).

At the end of the day, remember that 40% figure. 40% of those on trial periods would probably not have been offered jobs at all, if the 90 day law had not been passed.

The Herald on Sunday editorial concludes:

Anything that encourages an employer to take a punt on a new worker – and in particular to give a chance to someone who shows promise but lacks credentials – must be worth trying. It defies common sense that cost-conscious bosses will casually sack someone they have spent three months training. …

But in opposing the extension of the trial scheme unions seem more driven by ideology than good sense.

How unusual!

The Herald reports:

One of New Zealand’s largest unions says the Employers and Manufacturers Association (EMA) is “scaremongering” when it claims employees should face legal action for complaining about their jobs on Facebook.

The Engineering and Manufacturers Union (EPMU) has come out strongly against the call from the EMA, saying that prosecuting people for what they say online comes “dangerously close” to impinging on fundamental rights, such as freedom of expression.

EMA employment services manager David Lowe said the use of social media was untested in employment law but employers should take action if employees badmouthed them online.

“Some employees continue to say things on their social networking pages forgetting it isn’t private. Businesses must not sit back and allow their reputations to be sullied by the thoughtless comments of employees or ex-employees.”

Not much one can do about ex-employees, except to point out the obvious that slagging a former employer off in public may make it difficult for them to get future jobs.

In terms of current employees, the EPMU’s position seems rather strange. As much as I support free speech, that is not to say speech does not have consequences.

If an employer or manager posted on their Facebook site that they wanted to strangle a employee because the employee was always fucking things up, I have no doubt the EPMU would say this is outrageous and a breach of the good faith needed in employment relationships.

The same applies in reverse. If an employee is slagging off the employer, managers or even colleagues, that is a breach of the relationship.

Now having said that, an employer should not over react. If an employee is being indiscreet with their comments on say Facebook, the best approach would be to point out why this is a bad idea, and the consequences that could occur.

Now if someone has their Facebook page restricted to friends only, you can argue this is not in public. But then one presumes an employer would not get to see it. If they do, then pretty much by definition it is not private.

The SST reports:

CHUCKING SICKIES could be a thing of the past if the Service and Food Workers’ Union’s call for “whanau leave” to give people time off work to care for dependants is adopted.

But we already have whanau leave. S65(1) of the Holidays Act states sick leave can be used for you, your partner or dependents.

Massey University Albany psychology lecturer Dianne Gardiner said the idea should be adopted because the law does not reflect the realities of life, including looking after sick children and parents.

I think the lecturer should read the Holidays Act.

While countries such as Japan and Australia provide 10 days for personal sickness, bereavement or to care for dependants, New Zealand legislates for just five, which have to include any time off to care for family.

Now this is a different issue. This is about the quantity of leave available, which is different from whether one can use sick leave for family members – which is currently allowed.

The union’s northern regional secretary Jill Ovens said her 23,000 members were this week expected to ratify a clause calling for five whanau leave and 10 sick days, on which the union would campaign.

She said the statutory minimum is inadequate because people could easily use five days on dependants and have nothing for themselves. “Even with 10 days a year, it’s quite difficult to manage if you’ve got children or elderly dependants. A lot of people who are still working have elderly parents.”

I have some agreement with the union, in that the legislative minimum of five days is rather low. In fact I don’t think I know of an employer who doesn’t provide for at least ten. I would be open to persuasion that the minimum should be 10.

Going beyond 10 (which is around one day in 20) would be going too far in the other direction I think. Some employees do see sick leave as a target, not a safety net, and maximise their sick leave. Many employers do react with compassion to someone who is genuinely sick for longer than 10 days a year, and don’t force them to start taking annual or unpaid leave, even though they could.

Businesses need staff working, in order to make money. Aready of the 250 “work days” a year, staff get 11 days of public holidays, 20 days of annual leave and normally ten days of sick leave.  That averages out to a worker not being at work one day in six (on top of weekends).

The Dominion Post reports:

Many employers say the present rules are too heavily weighted in favour of workers, and make it too easy for frivolous complaints. Business New Zealand has also raised concerns about employers being penalised for not following correct processes when sacking workers, even though the dismissal was proved justified.

But unions are alarmed by some of the options, which include:

Increasing the length of the 90-day period for workers in small firms, which stops them taking unjustified dismissal cases.

On this issue, I tend to side with the unions. I am a big supporter of the current 90 day grievance free period, but I do not support it being extended to say 180 days.

In my experience 90 days is long enough to work out if someone is going to work out. Hell, 30 days will often do that.

Six months is, in my opinion, too long to keep someone on what is effectively a trial period.

Extending the 90-day rule, presently restricted to companies employing fewer that 20 staff, to those with up to 49.

This I do not have a problem with. In fact I am comfortable with a 90 day period for all employers.

Changing the “justifiable dismissal” test to what a reasonable employer `might’ have done, rather than what they `would’ have done.

My view is that there is too much focus on form over substance.

Removing reinstatement as a primary remedy in cases.

This one I have some concerns over also. If reinstatement is not a primary remedy, it may encourage unjustified dismissals. However a workplace can be very unsettled when an employee is reinstated to a job against the employer’s wishes – it is almost impossible to ever regain the trust needed for an employment relationship to work.

My gut reaction is reinstatement should be the primary remedy, but one has to recognise that often this will not be sensible.

The NZ Herald editorial does not appear to be online.

The Press looks at the furore over the forged passports by Mossad:

British police officers have arrived in Israel in an attempt to find out who or what stole the identities of six British-Israeli nationals and used them in the assassination in Dubai last month of a leader of the Palestinian Hamas organisation. The chances that the police will find anything worthwhile is exceedingly remote. If the murder was carried out by the Israeli foreign intelligence agency Mossad, as Dubai alleges and many others suspect, the Israeli Government will see to it that the truth never emerges. If it was perpetrated by some other actor – and the possibility that the killing was carried out by Arab agents from Hamas or elsewhere as part of some internecine feud has not been entirely ruled out – there is no chance that any plodding Western investigation is going to get to the bottom of it.

Maybe iPredict should do a market on who was it. My money will be on Mossad!

The victim was Mahmoud al-Mabhouh, co-founder of the military wing of Hamas, the radical Islamic organisation that controls the Gaza Strip. What Mabhouh was doing in Dubai without security protection is not known. As someone well aware that he was a target for assassination from a variety of quarters, Mabhouh seldom ventured far from Damascus where he was heavily protected. It appears likely he was involved in arranging a further illicit shipment of weapons from Iran for Hamas’s continuing attacks on Israel and for some reason felt secure travelling without guards. If this is the case, it is likely that Israeli intelligence seized the chance to carry out a strike that had probably been planned for some time.

Hamas is at war with Israel. Their policy is to destroy Israel. It is hard to argue that the co-founder of the military wing is not a legitimate military target.

The Dom Post welcomes a review of employment law:

Four years ago, a Tauranga company concerned about the theft of company property installed motion-sensitive cameras on its premises.

The cameras filmed a worker placing a cardboard box containing cakes of soap under a bench. Another worker, who subsequently admitted stealing company property, was filmed taking a box from under the bench and putting it in his car. The company believed it was a clear case of theft. It asked the worker who had placed the box under the bench to explain his actions. He refused. The company sacked him.

End of story? No. The worker took his case to the Employment Relations Authority. The authority found in favour of the employer. The worker appealed to the Employment Court. It took a different view.

It found the worker had been unjustifiably dismissed because his employer had not followed proper procedures. It had given him only selected portions of the surveillance tape, it had not put in writing the misdeeds of which he was accused, and it had wrongly concluded that the worker’s representative was stalling when he put off meetings because of other commitments. The company was ordered to pay the employee $12,000 for lost wages and $7000 for distress.

A good example of the case for change.

The ODT looks at home insulation:

Large-scale taxpayer subsiding of home insulation would seem an unlikely policy for a right-of-centre political party.

But that is what pragmatic National did and, by and large, Prime Minister John Key and his colleagues will be pleased with the outcome.

As are the Greens!

Vernon Small writes in the Dom Post:

The Government is considering a revamp of personal grievance laws.

The moves include a crackdown on frivolous claims and new rules to control “no win, no fee” advocates who have been seen as ramping up claims against employers.

But unions are concerned that the Government is using the review to reduce employees’ rights when they are sacked, including claims based on unfair process.

Getting the process largely right is important, but it is very difficult for small businesses to get it perfect. They do not have inhouse lawyers. They do not have HR departments. And they are the ones who can least afford losing a claim.

Prime Minister John Key has said the Government “shares concern from many quarters about the fairness and consistency of personal grievance claims”.

Ms Wilkinson said she wanted to ensure the regime was fair to both sides. “You hear stories anecdotally from employers who say, `Oh well, it’s just too hard we will just pay some money to make it go away.’ And that’s not justice.”

She had also heard that some of the “no win, no fee” industrial law advocates “know their way around the procedures so well that, whatever the merits of the case, the employer might pay out”.

In the public sector, three months salary is quite normal to settle claims, regardless of their merits.

CTU president Helen Kelly said “no win, no fee” advocates tended to operate among non-unionised workers and moves to regulate them would not concern the CTU.

I love how the CTU doesn’t mind the Government clamping down on their competitors

But it had major concerns about other elements of the document. She said the Government saw procedural fairness and natural justice as an impediment when an employee was dismissed.

The remedies won through personal grievances were too low, she said. Surveys had found the average cost to employers was $5000, of which compensation paid to workers averaged $2800.

I wonder if that takes into account the cases settled out of court?

Thousands of employment relationships ended unfairly and employees did nothing about it, so a lot of employers got off lightly. The number of grievance cases was low, considering that about 600,000 people left their jobs each year.

Most people go from one job to another better job, so obviously no grievances tend to occur there. What I would like to know is how many employees get dismissed each year, and what proportion of those result in a settlement or a court case.

The Herald reports:

A small business has been ordered to pay an employee $12,000 – including $6000 compensation for distress – after he was sacked for supplying cannabis to a workmate. …

The ERA ruled Saxons had not given Mr Wilkinson notice of the allegation and its likely consequences, or the opportunity to seek support, advice and representation.

It also criticised Saxons for not giving notes from the meetings to Mr Wilkinson’s lawyer, and for its view that Mr Wilkinson had sold drugs in the workplace.

Evidence had shown the transaction between Mr Wilkinson and the other worker took place outside work hours, away from Saxons’ premises.

Saxons had no policy on employees’ use of illegal drugs outside work and – although not deliberately – it had unjustifiably dismissed Mr Wilkinson.

So you discover that one employee has been selling drugs to other employees, but as you don’t have a written policy against it, it is okay so long as done outside the workplace.

Expecting small business owners to be able to have employment policies that cover every contingency such as drug dealing outside work is impractical, and why small business owners often lose. They can’t afford to have expensive in house lawyers to advise them on every aspect on employment practices.

The Herald reports:

A Crown research institute was justified in firing top climate scientist Dr Jim Salinger, the Employment Relations Authority has found. …

However, in his determination, authority member Leon Robinson said the dismissal was warranted because Dr Salinger had been given clear instructions at numerous meetings that others were to be used as spokespeople and he was to step back from that role.

At the end of the day,employees have to follow the legal instructions of their employers. Salinger refused to do so, and suffered the consequences.

NZPA report:

The Herald on Sunday (HOS) newspaper was justified in sacking assistant editor Stephen Cook, who was being investigated as part of a police inquiry into drug dealing, the Employment Relations Authority has ruled.

The HOS will be pleased to have won what was a messy battle with one of their former senior staff.