Fairness at Work

The National Party announced at its Annual Conference what Russel Norman described as “setting employment relations in New Zealand back two decades


If passed the changes will take away workers’ rights, remove protections, cut pay, reduce holidays and diminish access to sick leave.

The proposals include:

Extending the 90-day trial period to all employers

The Government proposes to extend the 90 day trial period – during which a new employee can dismissed without an employee being able to take a personal grievance and without the employer having to give any reason for the dismissal – to all workplaces.

The Government’s spin:

Government attempts to argue that 90-day trial period has helped job seekers gain a foothold in the job market, falsely claiming “a Department of Labour evaluation of the first year of the trial period shows that three-quarters of job-seekers who found work under the trial period continued maintained their employment, while 40 percent of employers said they would not have taken on new staff had the trial period not existed.”

The reality:


Department of Labour evaluation

the Government refers to actually found:

“The ability to use trial periods appeared to have encouraged 40% of employers who had hired someone to do so, however without any counterfactual evidence

it cannot be stated categorically that trial periods had created extra job opportunities

. The international literature suggests that exemptions to employment protection legislation, such as the trial period legislation, increase both hiring and firing

but have an unclear overall impact on unemployment.

There is no evidence that trial periods have had any impact on job creation. The trial period is, instead, a licence for bad employers to do as they choose, with employees having no ability to seek redress, and no right to even know what they have supposedly done wrong.

Amending the Employment Relations Act to provide that union access to workplaces is conditional on the consent of the employer

Currently the law provides for union access as of right. However, it also requires union representatives exercising the right to enter a workplace to do so only at reasonable times; to do so in a reasonable way, having regard to normal business operations in the workplace; and to comply with any existing reasonable procedures and requirements applying in respect of workplace safety or health or security.

The Government proposes that each instance of access to the workplace will require the employer’s specific consent (which cannot be unreasonably withheld).

The Government’s spin


The Government is claiming that this recognises that employers have the right to confirm who comes into the workplace at any time, and that the proposal largely standardises current practice, as most union visits to workplaces are made with notice. The Government also claims this proposal is important for health and safety and productivity reasons.

The reality:

Unscrupulous and anti-union employers will be able to invent all sorts of pretexts for particular times of access being inconvenient, rendering to chaos any attempts by union organisers to sensibly schedule their workplace visits. The onus will be transferred onto unions to prove an employer is being unreasonable in any particular instance of denial of access. And even if an employer is being unreasonable in denying access, some may decide that copping the penalties that can be handed out for this is an acceptable price to pay for frustrating the union’s organising efforts.

Far from being an impediment to workplace health and safety, the ability of unions to spot-check on workplace processes and practices is an important part of ensuring healthy and safe workplaces – that ability will be removed.

Amending the Employment Relations Act to allow employers to communicate directly with employees during collective bargaining, including details of any settlement offer

The Government’s spin:

The Government claims there a great deal of confusion with the current law in this respect, and that amending the law will remove that confusion. The Government maintains that any such communications by employers directly with employees will have to be consistent with the duty of good faith.

The reality:

This proposal in itself seriously undermines in favour of employers the requirement of the Employment Relations Act that the parties bargain in good faith. Employers will be able to go directly to employees to sell the employers’ spin on a proposed settlement in negotiations; thereby bypassing the representatives the employees have democratically chosen by joining the union. If employees have chosen who represents them, the employer should be duty bound to respect that choice and communicate through the employees’ chosen representatives.

Permitting employers to request proof of sickness or injury for an employee requesting as little as one day’s sick leave

The Government’s spin:

The Government says that employers will use this option to question those they suspect of routinely abusing the sick leave provision.

The reality:

The Holidays Act currently allows employers to seek medical proof of sickness if the employer has reasonable cause to suspect an application for sick leave is not genuine. The Government’s proposal will extend this to situations where the employer has no reasonable cause for such suspicion – i.e. it will enable employers to act unreasonably.

Frequently, employees will be unable to get a consultation with their GP on the day of their illness, and transient illnesses will have passed by the time they can get a consultation, leaving the GP with only the employee’s word that she or he was ill to base a medical certificate on.

The provisions is also likely to result in unnecessary visits to GPs for minor illnesses like tummy bugs or colds, but the viruses and bacteria that cause them will be spread around GPs waiting rooms. Alternatively, faced with the prospect of having to get a medical certificate, some employees are likely to decide to tough it out and go to work, spreading their illness among their workmates with consequent loss of productivity for the employer.

Permitting employees to cash up a maximum of one week’s annual holidays each entitlement year

The Government’s spin:

The Government claims employers won’t be able to pressure employees to exchange holidays for cash, though they can decline any request.

The reality:

While employers won’t, in theory, be able to pressure employees into cashing up one week of their annual holiday, the reality for people on low incomes will be very different. As family debts mount up, they will see little choice but to request cashing up a week’s holiday. The Government claims that employers won’t be able to pressure employees are empty, because this will be almost impossible to police. There are all sorts of ways, including hinting at possible problems with expected promotions, for encouraging workers to cash in the 4


week’s holiday.

The proposal will also place downwards pressure on wages, because in wage negotiations employers will be able to justify refusing pay increases on the basis that if workers are really short of cash, they can always ask to cash in some of their annual holiday.

The fightback begins

The NZ Council of Trade Unions is

leading a fightback

against these proposals, and has the full support of the Green Party. There will be lots to do – submissions to write, rallies and marches to attend, and industrial action to support – if we are to defeat these attacks on workers’ rights.

The campaign will kick of with

Fairness at Work

rallies in Auckland, Wellington, Christchurch and Dunedin on Saturday 21


August from 1 pm to 3 pm – venues to be advised.