Clayton's Law? Codes of Employment Practice

The Explanatory Note to the Rest and Meals Breaks Bill discussed in the last post indicates that the Minister intends to develop an approved code of practice to provide “non-prescriptive guidelines highlighting the recommended duration and frequency of rest breaks and meal breaks.” Section 100A of the ERA allows the Minister to approve codes of employment practice either generally or in relation to particular situations or particular parts or areas of the employment environment. Once a code is approved the Authority and the Court are required to have regard to the code in determining any matter within its jurisdiction.

To date codes of practice have not been widely used in New Zealand employment law other than in relation to safety and health. The two significant codes issued under the ERA, the Code of Good Faith in Collective Bargaining and the Code of Good Faith for the Public Health Sector have both been issued under specific provisions of the Act, sections 35 and 100D. In AUS v VC of Auckland University(2005) the full Employment Court stated that the Code of Good Faith “is, or ought to be, well known to unions and human resource managers engaged in bargaining”, a fairly clear hint that observance of its general principles might be expected. The use of codes is more widespread in the UK and codes have been issued in relating disciplinary and grievance procedures, picketing, disclosure of information to unions for bargaining purposes and a range of matters around union recognition that have no direct relevance here. A leading UK text, Deakin and Morris’s Labour Law, comment that there is evidence that codes are capable of having a significant impact in the workplace and refer specifically to the code on disciplinary and grievance procedures.

Codes of practice come within the category of “soft law” or possibly what older readers might describe as “Clayton’s law”, ie a form of law that either lacks binding force or which has only indirect force or "the law you're having when you're not having a law". Employment codes of practice both in New Zealand and the UK only have force to the extent that courts or tribunals can be persuaded to have regard to the code. Generally it might be expected that the more a code resembles traditional legislation the more it will be taken into account. A code that has clear and relatively unambiguous provisions is more likely to be seriously regarded by the courts than one with flexible aspirational provisions. Thus a code on rest and meal breaks that reflects the current law, providing for fixed breaks at regular intervals, is more likely to have a positive impact than one phrased in the vague and imprecise language of the Bill. If there is nothing to grasp onto it is difficult to have regard to.

Codes of practice can provide expectations for workplace behaviour and can provide useful guidelines for employers, employees and unions. They can provide greater flexibility than might be desirable in legislation and need not be written in an overly prescriptive form. However if they are to be other than meaningless window dressing they need to be fulfill at least two criteria. First they need to be carefully developed following full consultation. A code that has broad stakeholder acceptance and which reflects workplace realities as well as good practice is clearly more likely to be accepted by the courts. This is particularly so if they also meet the second criteria of stating clear and well defined standards or expectations. The Minister's proposed code on rest and meal breaks may provide a useful indicator for the future.