And indeed the Canadians have already thought of it. David Doorey's Workplace Blog- to which there is a link in the side bar-reports that "The Conservative government in Alberta has followed the Ontario lead by
publishing Bad Employers on a government website." These sites only list the worst employers- those who have been prosecuted for labour law violations and have refused to pay resulting fines. The lists also appear to cover only government prosecutions, not for example enforcement actions for unpaid damages (such as unpaid damages in personal grievance cases).
However a start has to be made somewhere and the Department of Labour might consider this a useful addition to the web information it provides!
Showing posts with label Issues in labour law. Show all posts
Showing posts with label Issues in labour law. Show all posts
Wednesday, June 27, 2012
Thursday, March 22, 2012
Employer access to your Facebook: how lawful are such requests??
Readers have no doubt seen the reports that a number of potential employers seem to be asking potential employees for access to their Facebook pages. Prof David Doorey in his blog on Canadian workplace law has pointed out that such requests may prove something of a legal minefield for employers. David's argument is relevant to New Zealand as well, he essentially argues that such requests will probably fall foul of anti-discrimination law as indicating an intention to discriminate.
In the New Zealand context section 23 of the Human Rights Act provides that:
Account might also need to be taken of the privacy principles set out in the Privacy Act. Principle 1 requires that the information be necessary and principle 4 that the means of obtaining the information "must not intrude to an unreasonable extent upon the personal affairs of the individual concerned."
Modern employers seem only to ready to pry into all aspects of the lives of their employees-this might at least inhibit one form of intrusion.
In the New Zealand context section 23 of the Human Rights Act provides that:
It shall be unlawful for any person to use or circulate any form of application for employment or to make any inquiry of or about any applicant for employment which indicates, or could reasonably be understood as indicating, an intention to commit a breach of section 22 of this Act [s 22 provides that it is unlawful to refuse or omit to employee an applicant by reason of the prohibited grounds of discrimination]Most employers are by now well aware they should not ask question about such matters as age, family status, sexual orientation and so on - asking for access to Facebook is essentially a request for such information.
Account might also need to be taken of the privacy principles set out in the Privacy Act. Principle 1 requires that the information be necessary and principle 4 that the means of obtaining the information "must not intrude to an unreasonable extent upon the personal affairs of the individual concerned."
Modern employers seem only to ready to pry into all aspects of the lives of their employees-this might at least inhibit one form of intrusion.
Thursday, January 19, 2012
Facebook can also bite employers
It appears that it is not only employees that may find Facebook causing problems in an employment relationship. A recent Employment Relations Authority decision (Kloeten v Combined Tanning Supplies Ltd [2012] NZERA Auckland 9) indicated that facebook comments may prove counter-productive when defending an allegation of unjustified dismissal. In this case the dismissal (by the employee's aunt) shortly after the employee announced she was about to take maternity leave was held to be unjustified. The employer had claimed the dismissal was for serious misconduct. The employer's case was not helped by her Facebook status change to A catastrophic event … is watching everything you’ve worked for, your entire networth, the thing that defines you as who you are & the hopes & dreams you had … all gone which was posted the same evening as the employee announced she was taking maternity leave. The alleged misconduct, which the Authority did not accept had ocurred, happened a few days later
Friday, December 16, 2011
Labour Law and Human Rights: an interesting Australian development
Those damn Aussies always try to go one better-and in one respect have succeeded. The Human Rights (Parliamentary Scrutiny) Act 2011 will commence on 4
January 2012. The new Act will is intended to improve parliamentary scrutiny of legislation
for consistency with Australia’s human rights obligations through two
measures:
The definition of human rights for the purpose of parliamentary scrutiny is particularly wide as human rights are defined as the rights and freedoms in the seven core United Nations treaties to which Australia is a party:
Article 6
1. The States Parties to the present Covenant recognize the right to work, which includes the right of
everyone to the opportunity to gain his living by work which he freely chooses or accepts, and will take
appropriate steps to safeguard this right.
2. The steps to be taken by a State Party to the present Covenant to achieve the full realization of this
right shall include technical and vocational guidance and training programmes, policies and techniques
to achieve steady economic, social and cultural development and full and productive employment
under conditions safeguarding fundamental political and economic freedoms to the individual.
Article 7
The States Parties to the present Covenant recognize the right of everyone to the enjoyment of just
and favourable conditions of work which ensure, in particular:
(a) Remuneration which provides all workers, as a minimum, with:
(i) Fair wages and equal remuneration for work of equal value without distinction of any kind, in
particular women being guaranteed conditions of work not inferior to those enjoyed by men, with equal
pay for equal work;
(ii) A decent living for themselves and their families in accordance with the provisions of the present
Covenant;
(b) Safe and healthy working conditions; (c) Equal opportunity for everyone to be promoted in his
employment to an appropriate higher level, subject to no considerations other than those of seniority
and competence;
(d ) Rest, leisure and reasonable limitation of working hours and periodic holidays with pay, as well as
remuneration for public holidays
Article 8
1. The States Parties to the present Covenant undertake to ensure:
(a) The right of everyone to form trade unions and join the trade union of his choice, subject only to
the rules of the organization concerned, for the promotion and protection of his economic and social
interests. No restrictions may be placed on the exercise of this right other than those prescribed by law
and which are necessary in a democratic society in the interests of national security or public order or
for the protection of the rights and freedoms of others;
(b) The right of trade unions to establish national federations or confederations and the right of the
latter to form or join international trade-union organizations;
(c) The right of trade unions to function freely subject to no limitations other than those prescribed by
law and which are necessary in a democratic society in the interests of national security or public order
or for the protection of the rights and freedoms of others;
(d) The right to strike, provided that it is exercised in conformity with the laws of the particular
country.
2. This article shall not prevent the imposition of lawful restrictions on the exercise of these rights by
members of the armed forces or of the police or of the administration of the State.
3. Nothing in this article shall authorize States Parties to the International Labour Organisation Convention of 1948 concerning Freedom of Association and Protection of the Right to Organize to take legislative measures which would prejudice, or apply the law in such a manner as would prejudice, the guarantees provided
for in that Convention.
- requiring that all new bills and disallowable legislative instruments be accompanied by an assessment of compatibility with human rights, and
- establishing a new Parliamentary Joint Committee on Human Rights.
The definition of human rights for the purpose of parliamentary scrutiny is particularly wide as human rights are defined as the rights and freedoms in the seven core United Nations treaties to which Australia is a party:
- International Covenant on Civil and Political Rights
- International Covenant on Economic, Social and Cultural Rights
- International Convention on the Elimination of All Forms of Racial Discrimination
- Convention on the Elimination of All Forms of Discrimination against Women
- Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
- Convention on the Rights of the Child
- Convention on the Rights of Persons with Disabilities
Article 6
1. The States Parties to the present Covenant recognize the right to work, which includes the right of
everyone to the opportunity to gain his living by work which he freely chooses or accepts, and will take
appropriate steps to safeguard this right.
2. The steps to be taken by a State Party to the present Covenant to achieve the full realization of this
right shall include technical and vocational guidance and training programmes, policies and techniques
to achieve steady economic, social and cultural development and full and productive employment
under conditions safeguarding fundamental political and economic freedoms to the individual.
Article 7
The States Parties to the present Covenant recognize the right of everyone to the enjoyment of just
and favourable conditions of work which ensure, in particular:
(a) Remuneration which provides all workers, as a minimum, with:
(i) Fair wages and equal remuneration for work of equal value without distinction of any kind, in
particular women being guaranteed conditions of work not inferior to those enjoyed by men, with equal
pay for equal work;
(ii) A decent living for themselves and their families in accordance with the provisions of the present
Covenant;
(b) Safe and healthy working conditions; (c) Equal opportunity for everyone to be promoted in his
employment to an appropriate higher level, subject to no considerations other than those of seniority
and competence;
(d ) Rest, leisure and reasonable limitation of working hours and periodic holidays with pay, as well as
remuneration for public holidays
Article 8
1. The States Parties to the present Covenant undertake to ensure:
(a) The right of everyone to form trade unions and join the trade union of his choice, subject only to
the rules of the organization concerned, for the promotion and protection of his economic and social
interests. No restrictions may be placed on the exercise of this right other than those prescribed by law
and which are necessary in a democratic society in the interests of national security or public order or
for the protection of the rights and freedoms of others;
(b) The right of trade unions to establish national federations or confederations and the right of the
latter to form or join international trade-union organizations;
(c) The right of trade unions to function freely subject to no limitations other than those prescribed by
law and which are necessary in a democratic society in the interests of national security or public order
or for the protection of the rights and freedoms of others;
(d) The right to strike, provided that it is exercised in conformity with the laws of the particular
country.
2. This article shall not prevent the imposition of lawful restrictions on the exercise of these rights by
members of the armed forces or of the police or of the administration of the State.
3. Nothing in this article shall authorize States Parties to the International Labour Organisation Convention of 1948 concerning Freedom of Association and Protection of the Right to Organize to take legislative measures which would prejudice, or apply the law in such a manner as would prejudice, the guarantees provided
for in that Convention.
Sunday, September 18, 2011
How Inflexible is New Zealand's Labour Market?
Last week Andrew Scott-Howman in his Workface blog posted on New Zealand's ranking in the Global Competitiveness Report published by the World Economic Forum. This body is a conservative think tank whose New Zealand partners are Business New Zealand and The New Zealand Institute. The latter has an excellent commentary on the overall New Zealand report on its website. This post will focus purely on the Labour Market Efficiency "pillar" of the report on which New Zealand ranked 11th internationally, ahead of Australia at 13th. This score is based on a measurement of nine factors which are (with rankings in relation to 142 countries- the higher the place the greater the efficiency):
The mixing of hard and soft data in this way to produce an overall figure seems somewhat dodgy at best (and the World Bank figures are themselves not without problems). This is particularly apparent in relation to the outlier ranking of hiring and firing costs. This figure seems to reflect employer prejudice and misunderstanding rather than anything resembling the reality of employment protection in New Zealand. By way of comparison for example the OECD in 2008 ranked New Zealand as having the 4th least strict employment protection!
One particularly interesting result from the Executive survey was the ranking of "restrictive labour relations" in the overall survey results. It was ranked 6th of 11 issues with a weighted score of 8.9 compared to 22.7 for the major concern, "inadequate suply of infrastructure." In terms of the labour market the top concern was an "inadequately educated labour force" in 4th pace with a score of 11.5. Interestingly Australian executives ranked "restrictive labour relations"as their top concern with a score of 16.6. Given the heat of the debate on this topic in Australia at the moment one wonder if this reflects a response to the hot topic of the moment rather than reality - the OECD ranking for Australia was 5th.
Such reports are interesting but should be read with a considerable grain of salt. New Zealand's 11th overall ranking indicates a very efficient labour market even without the distortion introduced by the survey evidence
- Cooperation in labour-employer relations (13th)
- Flexibility of wage determination (26th)
- Rigidity of employment index (10th)
- Hiring and firing costs (86th)
- Redundancy costs measured by weeks of salary required to be paid (1st)
- Pay and productivity (34th)
- Reliance on professional management (2nd)
- Brain drain (82nd)
- Woman in labour force: ration to men (43rd)
The mixing of hard and soft data in this way to produce an overall figure seems somewhat dodgy at best (and the World Bank figures are themselves not without problems). This is particularly apparent in relation to the outlier ranking of hiring and firing costs. This figure seems to reflect employer prejudice and misunderstanding rather than anything resembling the reality of employment protection in New Zealand. By way of comparison for example the OECD in 2008 ranked New Zealand as having the 4th least strict employment protection!
One particularly interesting result from the Executive survey was the ranking of "restrictive labour relations" in the overall survey results. It was ranked 6th of 11 issues with a weighted score of 8.9 compared to 22.7 for the major concern, "inadequate suply of infrastructure." In terms of the labour market the top concern was an "inadequately educated labour force" in 4th pace with a score of 11.5. Interestingly Australian executives ranked "restrictive labour relations"as their top concern with a score of 16.6. Given the heat of the debate on this topic in Australia at the moment one wonder if this reflects a response to the hot topic of the moment rather than reality - the OECD ranking for Australia was 5th.
Such reports are interesting but should be read with a considerable grain of salt. New Zealand's 11th overall ranking indicates a very efficient labour market even without the distortion introduced by the survey evidence
Tuesday, September 13, 2011
Workers as Commodities.
In 1944 the International Labour Organisation, at its meeting in Philadelphia, declared that "labour is not a commodity" a declaration intended to reassert the ILO membership's commitment to the achievement of social justice .
In Sunday's New Zealand Herald Damien Grant asserted that "Economically, the unskilled are irrelevant. They are a commodity." Roger Kerr's comment to the Dublin Economic Workshop in 1999 made a similar point although in a considerably more moderate form: "while people are not commodities or articles of commerce, the labour services they provide using their mental and physical capacities most certainly are." Kerr's comment, especially in its wider context, makes it clear that his comment extended to all workers who are sellers of labour services, unlike the position taken by Grant that "Only talent matters" with the implication, unlike Kerr, that "talented" workers, whatever these may be, are in some way not commodities but rise above the common herd!
I do not intend to comment in any detail on the obnoxiousness of Grant's comments but they should not go unremarked.
The view that labour is a commodity, and the related claim that there is no inequality of bargaining power, may make sense in the abstruse mathematical models of neoliberal economists, and it can be argued that it is economically illiterate to make such comments. This is true, however, only if the discussion is confined to economic models, models whose relationship to the real world is tenuous at best. There is much to be said for the comment that economics was invented to make weather forecasting look credible. In other words such statements are essentially assertions, made within the realm of economic theory, and should be confined to that sphere. Outside a strict economic context Grant's statement translates as "unskilled workers ought to be commodities".
The statement that "labour is not a commodity" is not an economic statement-it is a normative statement designed to express a particular set of political and social values that I need not elaborate on. They are well known in any democratic society. In essence it encapsulates the values that all workers are entitled to expect to work in decent conditions and to receive a reward for that work that provides a reasonable standard of living relative to the economic condition of the society within which they live. It is also a rejection of extreme market ideology of neoliberal economists. Genuine science observes and attempts to explain the world. Economics develops models and wants to make the world conform to them, a characteristic it shares with religion.
The fundamental problem with comments such as that made by Grant is that they take statements that may have some validity in a closed and limited model, and attempt to present them as a universal truth rather than as the ideological position they are. Grant is attempting to win an ideological-political argument that seeks a particular distribution of wealth and influence in society-a normative position that he seeks to disguise as an inevitable truth.
The rest of us may have trouble with defining exactly what our normative position is but at least we are not pretending to do otherwise.
In Sunday's New Zealand Herald Damien Grant asserted that "Economically, the unskilled are irrelevant. They are a commodity." Roger Kerr's comment to the Dublin Economic Workshop in 1999 made a similar point although in a considerably more moderate form: "while people are not commodities or articles of commerce, the labour services they provide using their mental and physical capacities most certainly are." Kerr's comment, especially in its wider context, makes it clear that his comment extended to all workers who are sellers of labour services, unlike the position taken by Grant that "Only talent matters" with the implication, unlike Kerr, that "talented" workers, whatever these may be, are in some way not commodities but rise above the common herd!
I do not intend to comment in any detail on the obnoxiousness of Grant's comments but they should not go unremarked.
The view that labour is a commodity, and the related claim that there is no inequality of bargaining power, may make sense in the abstruse mathematical models of neoliberal economists, and it can be argued that it is economically illiterate to make such comments. This is true, however, only if the discussion is confined to economic models, models whose relationship to the real world is tenuous at best. There is much to be said for the comment that economics was invented to make weather forecasting look credible. In other words such statements are essentially assertions, made within the realm of economic theory, and should be confined to that sphere. Outside a strict economic context Grant's statement translates as "unskilled workers ought to be commodities".
The statement that "labour is not a commodity" is not an economic statement-it is a normative statement designed to express a particular set of political and social values that I need not elaborate on. They are well known in any democratic society. In essence it encapsulates the values that all workers are entitled to expect to work in decent conditions and to receive a reward for that work that provides a reasonable standard of living relative to the economic condition of the society within which they live. It is also a rejection of extreme market ideology of neoliberal economists. Genuine science observes and attempts to explain the world. Economics develops models and wants to make the world conform to them, a characteristic it shares with religion.
The fundamental problem with comments such as that made by Grant is that they take statements that may have some validity in a closed and limited model, and attempt to present them as a universal truth rather than as the ideological position they are. Grant is attempting to win an ideological-political argument that seeks a particular distribution of wealth and influence in society-a normative position that he seeks to disguise as an inevitable truth.
The rest of us may have trouble with defining exactly what our normative position is but at least we are not pretending to do otherwise.
Saturday, July 9, 2011
NZ Labour Law Association Inaugural Conference
The New Zealand Labour Law Association Inc will, in association with Victoria University's School of Law, hold its inaugural conference on Friday 2nd December this year. The final programme is yet to be confirmed and papers may be submitted for possible presentation. One theme will be issues from Australia. Prof Andrew Stewart of the University of Adelaide will provide an account of current developments in Australian law and the Fair Work Act and Prof Richard Johnstone from Griffith will speak on the proposed Australian model OSH law.
You can register online and find further information at http://www.victoria.ac.nz/law/about/events/2011/labour-law-conf.aspx
You can register online and find further information at http://www.victoria.ac.nz/law/about/events/2011/labour-law-conf.aspx
Saturday, December 4, 2010
Mine Disasters and Inquiries
During the recent Pike River tragedy I looked up Wikipedia for a reference to the Miners' Hymn written after the Gresford Disaster where 266 men died after explosions in the mine. The section of the entry on the subsequent inquiry makes interesting reading - some extracts below
Events after the accident
Events after the accident
The wage packets of the dead miners were docked quarter of a shift's pay for failure to complete the shift.
An inquiry opened on October 25, 1934 and highlighted management failures, a lack of safety measures, bad working practices and poor ventilation in the pit. The miners were represented at the Inquiry by Sir Stafford Cripps; the mine owners, mindful of the fact they could face criminal charges, hired a formidable team of barristers including Hartley Shawcross.[4] Recovery teams entered the sealed pit in 1935 in connection with the Inquiry; however the Company allowed only its own officials to enter the Dennis districts, citing dangerous conditions, and the victims' bodies remained sealed in the pit. It was widely perceived that these actions were a deliberate attempt by the mine's owners to cover up any remaining evidence of their culpability, as it meant that any theories as to the explosion's cause could not be conclusively proven.[4] The colliery reopened six months after the disaster with coal production resuming from the South-East section in January 1936.The inquiry, chaired by Sir Henry Walker, issued its findings early in 1937. The two Assessors chosen by the miners and by the pit's management, and the barristers representing them, gave widely different suggestions as to the explosion's cause. In the absence of any proof, due to the Dennis section remaining sealed, Walker drew very cautious conclusions
Later in 1937 court proceedings were started in Wrexham against the Pit Manager, the Under-Manager and the United & Westminster Collieries Limited, the owners of the mine. Aside from the evidence of poor working practices, it was discovered that Bonsall had after the accident instructed an assistant surveyor, William Cuffin, to falsify records of dust samples when none had actually been taken.[2] The court however dismissed most of the charges, finding the mine's management guilty only of inadequate record-keeping, and Bonsall was fined £150 plus costs; the mine's owners were never called to give evidence. Bonsall, despite being calculatedly portrayed as a ruthless and cynical manager by Cripps and others, is likely to have been more of a "weak man driven beyond his capabilities"[10] and who was reduced to a state of extreme exhaustion and stress by over 20 hours of examination at the inquiry. The Under-Manager, Williams, was singled out for praise in that unlike other officials he was found to have made a genuine attempt to improve working conditions for the miners since taking the job.
Cripps used the evidence given at the inquiry to call for nationalisation of the coal industry. This eventually occurred in 1947, when the pit, along with others in the country, was taken over the by the National Coal Board. As part of the takeover agreement, nearly all the operating records and correspondence relating to Gresford Colliery were deliberately destroyed.
Wednesday, October 27, 2010
"I want it all" (with apologies to Queen)
I haven't blogged for a while being in Glasgow but some issues cry out for comment.
"I want it all" pretty much sums up the attitude of New Zealand "icon" Peter Jackson. Happy to make films here if he get massive tax breaks unavailable to other businesses and labour law is changed to allow US-style employment at will. Paul Roth's comments about banana republics will have considerable truth if the government caves into these demands. Even for a National government one might have thought it would be a step to far to deny workers the rights in core ILO conventions to which New Zealand is a party-apparently not!
It is perhaps to be expected that many people are not fully conversant with New Zealand's labour law but to see a statement such as the following in a major newspaper beggars belief (well not really given the Herald's usual anti-worker stance)
"Some film workers work as contractors, meaning they can have significant tax breaks and can set their own terms and conditions".
Tax breaks maybe - although how significant is debatable- but "can set their own conditions": Joe or Jane Blogs who hold the microphone normally walk into Warner Bros and tell them what conditions they will work under - YEH RIGHT. Joe and Jane do not set their own conditions, they take what they are given and like it or lump it. Employees may have limited bargaining power but statutory protections such as good faith requirements do place some requirements on employers to negotiate. And if later Joe and Jane don't like it, or the movie moguls don't like them they are down the road. No personal grievance rights, no good faith, no explanation required, nothing. You're a commodity in this world mate and we don't need you/found a cheaper one.
The difference between contractors who work for predominately one employer and employees is pure legal form and has nothing to do with economic reality. It is a device to avoid the obligations of being an employer. That is why the Authority and courts are told to look at the real relationship.
And lets try and be a bit realistic-apart from avoiding personal grievance obligations, minimum holidays and the minimum wage and the dangers of collective bargaining (ie by workers-no problem with capital being collectivised in a company) anything you can do with a contractor can be done with employees - flexible hours, part-time, fixed term or whatever, on call employment and so on.
And perhaps more to the point as Paul Roth pointed out yesterday, if the contract makes it clear that you have agreed to be contractor it is unlikely that the Authority or Court will find that you are not- the law doesn't need changing. Peter Jackson and Warner Bros need to hire a lawyer and get them to write a clear contract - just like other businesses do.
John Key should try acting as Prime Minister and restore some national (small 'n') pride. With a big 'N' it is going down the drain - "Mexicans with cellphones" is insulting to both Mexicans and New Zealanders.
The sad thing is that a significant number of workers' jobs depend on the outcome of this dispute-yep workers, be they employees or contractors. These workers have been sitting around in limbo for many months as the moguls decide whether or not to film, whether or not to come to New Zealand etc. They deserve better and it is understandable they look to blame the union who seems to have upset an apple cart. However nothing of any significance has changed in labour law since the days of Lord of the Rings except to worker's detriment, 90 day trial periods and all that. They would do better and look at where the real problem lies-and it is not Australia or at the CTU.
"I want it all" pretty much sums up the attitude of New Zealand "icon" Peter Jackson. Happy to make films here if he get massive tax breaks unavailable to other businesses and labour law is changed to allow US-style employment at will. Paul Roth's comments about banana republics will have considerable truth if the government caves into these demands. Even for a National government one might have thought it would be a step to far to deny workers the rights in core ILO conventions to which New Zealand is a party-apparently not!
It is perhaps to be expected that many people are not fully conversant with New Zealand's labour law but to see a statement such as the following in a major newspaper beggars belief (well not really given the Herald's usual anti-worker stance)
"Some film workers work as contractors, meaning they can have significant tax breaks and can set their own terms and conditions".
Tax breaks maybe - although how significant is debatable- but "can set their own conditions": Joe or Jane Blogs who hold the microphone normally walk into Warner Bros and tell them what conditions they will work under - YEH RIGHT. Joe and Jane do not set their own conditions, they take what they are given and like it or lump it. Employees may have limited bargaining power but statutory protections such as good faith requirements do place some requirements on employers to negotiate. And if later Joe and Jane don't like it, or the movie moguls don't like them they are down the road. No personal grievance rights, no good faith, no explanation required, nothing. You're a commodity in this world mate and we don't need you/found a cheaper one.
The difference between contractors who work for predominately one employer and employees is pure legal form and has nothing to do with economic reality. It is a device to avoid the obligations of being an employer. That is why the Authority and courts are told to look at the real relationship.
And lets try and be a bit realistic-apart from avoiding personal grievance obligations, minimum holidays and the minimum wage and the dangers of collective bargaining (ie by workers-no problem with capital being collectivised in a company) anything you can do with a contractor can be done with employees - flexible hours, part-time, fixed term or whatever, on call employment and so on.
And perhaps more to the point as Paul Roth pointed out yesterday, if the contract makes it clear that you have agreed to be contractor it is unlikely that the Authority or Court will find that you are not- the law doesn't need changing. Peter Jackson and Warner Bros need to hire a lawyer and get them to write a clear contract - just like other businesses do.
John Key should try acting as Prime Minister and restore some national (small 'n') pride. With a big 'N' it is going down the drain - "Mexicans with cellphones" is insulting to both Mexicans and New Zealanders.
The sad thing is that a significant number of workers' jobs depend on the outcome of this dispute-yep workers, be they employees or contractors. These workers have been sitting around in limbo for many months as the moguls decide whether or not to film, whether or not to come to New Zealand etc. They deserve better and it is understandable they look to blame the union who seems to have upset an apple cart. However nothing of any significance has changed in labour law since the days of Lord of the Rings except to worker's detriment, 90 day trial periods and all that. They would do better and look at where the real problem lies-and it is not Australia or at the CTU.
Wednesday, August 11, 2010
Guest Post from Amanda Reilly
One More Straw
Most parents would agree that simultaneously managing family responsibilities and paid work can be hard. Research in this area frequently focuses on the difficulties faced by middle class professional women (which is unsurprising since much of this research is carried out by middle class women who have a very personal stake in the issue). However, a recent joint report by the UC Hastings College of Law Work Life Law Center and the Center for American progress shines a light on how work family conflict affects poor and working class families. It makes for harrowing and heartbreaking reading. Click here to read the whole report http://www.worklifelaw.org/pubs/ThreeFacesofWork-FamilyConflict.pdf.
Here is one extract I found particularly upsetting: Kim Braithwaite was making progress. She was working two jobs to support her two children, 9-year old Justina and 1-year-old Justin. But on October 12, 2003, she faced a dilemma: her babysitter was late. Kim would be tardy for her shift at McDonald’s if she delayed and she worried that she would be fired. The sitter would arrive in a few minutes, Kim reasoned, and she left for work. The next she heard was from the police. Her children were found dead in her front room; her apartment had caught fire before the babysitter arrived. Kim was arrested for child neglect. Said a neighbor, “It’s hard when a single mother has two or three kids and has to work a lot. But I never hear her kids crying, never see her yelling at them. She is a good mom. ”'
Could such a tragedy occur in New Zealand? One would hope not but I suspect we would not have to look too hard to find families in New Zealand who, like those identified in the report ‘get few benefits from their employers to help manage work-life conflict and often hold jobs with inconsistent or unpredictable schedules that exacerbate these conflicts. Government policies to help these families are too often inadequate and underfunded, yet conservatives point to the problems these families have in balancing work and family as proof of their “irresponsibility.”’
There are no quick fixes or easy answers to the problem of helping families to manage work and family. However, the consequences of the recent proposal to amend the Holidays Act, to give employers the right to request a medical certificate if an employee is absent from work for a single day, strike me as likely to be particularly harsh on poor working families. For a well paid single person with reliable transportation having to go to a doctor for a medical certificate because your employer suspects you took the day off to go shopping is a minor inconvenience. But the same requirement to obtain a medical certificate could be a significant imposition on a struggling solo parent on a low wage with no car and a complex web of childcare arrangements to juggle. Keep in mind also that under s65 of the Holidays Act an employee may take sick leave if a person who depends on the employee for care is sick or injured. Anecdotally, many working parents of young children use up their statutory sick leave entitlements on caring for their children and soldier on at work if they themselves are ill. Any parent who has experienced what it is like to be up all night with a vomiting child and then had to drag themselves to work the next day ought to be able to empathize with the burdens that illness must impose on poor working families. These families deserve our respect and support. I have no doubt that many good employers are supportive and understanding of their employees with family responsibilities and that the proposed law change will make no difference to their treatment of their workforce. However, not all employers are good or sensitive and I fear that conferring the ability to compel employees to obtain medical certificates after one day of sick leave on employers could be one more straw for the backs of already struggling workers and families.
Most parents would agree that simultaneously managing family responsibilities and paid work can be hard. Research in this area frequently focuses on the difficulties faced by middle class professional women (which is unsurprising since much of this research is carried out by middle class women who have a very personal stake in the issue). However, a recent joint report by the UC Hastings College of Law Work Life Law Center and the Center for American progress shines a light on how work family conflict affects poor and working class families. It makes for harrowing and heartbreaking reading. Click here to read the whole report http://www.worklifelaw.org/pubs/ThreeFacesofWork-FamilyConflict.pdf.
Here is one extract I found particularly upsetting: Kim Braithwaite was making progress. She was working two jobs to support her two children, 9-year old Justina and 1-year-old Justin. But on October 12, 2003, she faced a dilemma: her babysitter was late. Kim would be tardy for her shift at McDonald’s if she delayed and she worried that she would be fired. The sitter would arrive in a few minutes, Kim reasoned, and she left for work. The next she heard was from the police. Her children were found dead in her front room; her apartment had caught fire before the babysitter arrived. Kim was arrested for child neglect. Said a neighbor, “It’s hard when a single mother has two or three kids and has to work a lot. But I never hear her kids crying, never see her yelling at them. She is a good mom. ”'
Could such a tragedy occur in New Zealand? One would hope not but I suspect we would not have to look too hard to find families in New Zealand who, like those identified in the report ‘get few benefits from their employers to help manage work-life conflict and often hold jobs with inconsistent or unpredictable schedules that exacerbate these conflicts. Government policies to help these families are too often inadequate and underfunded, yet conservatives point to the problems these families have in balancing work and family as proof of their “irresponsibility.”’
There are no quick fixes or easy answers to the problem of helping families to manage work and family. However, the consequences of the recent proposal to amend the Holidays Act, to give employers the right to request a medical certificate if an employee is absent from work for a single day, strike me as likely to be particularly harsh on poor working families. For a well paid single person with reliable transportation having to go to a doctor for a medical certificate because your employer suspects you took the day off to go shopping is a minor inconvenience. But the same requirement to obtain a medical certificate could be a significant imposition on a struggling solo parent on a low wage with no car and a complex web of childcare arrangements to juggle. Keep in mind also that under s65 of the Holidays Act an employee may take sick leave if a person who depends on the employee for care is sick or injured. Anecdotally, many working parents of young children use up their statutory sick leave entitlements on caring for their children and soldier on at work if they themselves are ill. Any parent who has experienced what it is like to be up all night with a vomiting child and then had to drag themselves to work the next day ought to be able to empathize with the burdens that illness must impose on poor working families. These families deserve our respect and support. I have no doubt that many good employers are supportive and understanding of their employees with family responsibilities and that the proposed law change will make no difference to their treatment of their workforce. However, not all employers are good or sensitive and I fear that conferring the ability to compel employees to obtain medical certificates after one day of sick leave on employers could be one more straw for the backs of already struggling workers and families.
Monday, July 26, 2010
Behind National's Reforms
In the nineteenth century Sir Walter summed up the fears of British Tories and the propertied classes when he feared the day that “unwashed artificers” might get the vote, a sentiment that caused Borderers to jeer at him and stone his carriage. Universal suffrage, in Britain as in New Zealand, posed a major threat to the ability of the propertied class and expanding corporate capitalism to treat the great bulk of the population as exploitable commodities. In their view capital was endowed by god, or the “laws” of economics to exploit whatever resources were available, including human resources, and to accumulate the benefits of that exploitation for its private benefit.
Before universal suffrage the subordination of workers could be guaranteed through penal sanctions and imprisonment as well as the threat of unemployment, destitution and the workhouse for the worker and their family. Universal suffrage, the growth of effective trade unions, collective agreements, legislated minimum employment standards and welfare systems undermined these controls but the employment relationship, however, remained one of subordination. The courts invented new torts to crush worker organisation and developed a new form of contract embodying mechanisms to ensure effective control of employees. Employees were held to owe onerous duties of fidelity to their employer but such obligations were strictly one way – employers were obliged to pay wages but owed nothing more to their employees. The ASLEF case in the UK and decisions of the New Zealand Court of Appeal in the 1990s made it clear that in the view of the law an employment contract is a contract intended to benefit the employer – its function is to allow the owners of property to maximise the gain from their property. Employees are there to promote that function.
Employees however have no interest worthy of legal recognition in their employment. While the common law courts have long shown incredible flexibility in creating abstruse property and proprietary rights to protect employers, increasingly including quasi-property rights in their workforce in part or as a whole, they have never recognised any such rights for employees.
Subordination depends on fear. Historically fear was generated by the threat of flogging, transportation and the workhouse. Universal suffrage and effective political power ended the more draconian of these threats but the common law courts, always one of the strongest supporters of the interest of property, ensured that one threat remained clear and untrammelled – the right to dismiss without reason and without consequences. The common law has always taken, and continues to take the position, that any employee, be they employed part-time for a day or have worked productively and faithfully for 30 years, can be dismissed on a whim and without reason or even for reasons which any reasonable person would regard as totally unacceptable. An employee who has spent half a decade or more accumulating professional or technical expertise, increasing at their own expense, may have their reputation and their investment compromised or destroyed in a second by an arbitrary or vindictive employer and the common law gives not a jot.
Since the Second World War, however, most democratic developed countries, with the notable exception of the United States, have moved to limit such arbitrary power by requiring employers to justify a dismissal on some rational grounds-economic or commercial or employee misconduct or incapacity. New Zealand introduced this protection in 1973 and while personal grievance protection was never perfect, and rarely provided adequate remedies against unjustified employer actions, it did act as a significant deterrent to at least the more obvious abuses of employer power. Protection from unjustified dismissal, as with union organisation, thus qualifies employee subordination and hence the power of an employer to unilaterally and arbitrarily control its labour force. An employee who can insist on their contractual rights, or on some control in how their labour is utilised, constrains the so-called right of capital to have an untrammelled ability to exploit that capital. On the other hand an employee who knows that they can be dismissed without reason, and see their own and their dependents future jeopardised, is an employee who for all practical purposes has few if any legal rights and will have no power or ability to control or protect their own economic security. Understand that and the logic behind National’s reforms becomes clear.
Political constrains may mean that John Key's government is not be able to introduce the United States employment-at-will rule which reduces employees to totally disposable assets, as many National supporters would have liked to do in 1991. Gutting the balanced test of justification and replacing it with one that comes close to equating lack of justification with employer irrationality is however a large step in that direction.
Before universal suffrage the subordination of workers could be guaranteed through penal sanctions and imprisonment as well as the threat of unemployment, destitution and the workhouse for the worker and their family. Universal suffrage, the growth of effective trade unions, collective agreements, legislated minimum employment standards and welfare systems undermined these controls but the employment relationship, however, remained one of subordination. The courts invented new torts to crush worker organisation and developed a new form of contract embodying mechanisms to ensure effective control of employees. Employees were held to owe onerous duties of fidelity to their employer but such obligations were strictly one way – employers were obliged to pay wages but owed nothing more to their employees. The ASLEF case in the UK and decisions of the New Zealand Court of Appeal in the 1990s made it clear that in the view of the law an employment contract is a contract intended to benefit the employer – its function is to allow the owners of property to maximise the gain from their property. Employees are there to promote that function.
Employees however have no interest worthy of legal recognition in their employment. While the common law courts have long shown incredible flexibility in creating abstruse property and proprietary rights to protect employers, increasingly including quasi-property rights in their workforce in part or as a whole, they have never recognised any such rights for employees.
Subordination depends on fear. Historically fear was generated by the threat of flogging, transportation and the workhouse. Universal suffrage and effective political power ended the more draconian of these threats but the common law courts, always one of the strongest supporters of the interest of property, ensured that one threat remained clear and untrammelled – the right to dismiss without reason and without consequences. The common law has always taken, and continues to take the position, that any employee, be they employed part-time for a day or have worked productively and faithfully for 30 years, can be dismissed on a whim and without reason or even for reasons which any reasonable person would regard as totally unacceptable. An employee who has spent half a decade or more accumulating professional or technical expertise, increasing at their own expense, may have their reputation and their investment compromised or destroyed in a second by an arbitrary or vindictive employer and the common law gives not a jot.
Since the Second World War, however, most democratic developed countries, with the notable exception of the United States, have moved to limit such arbitrary power by requiring employers to justify a dismissal on some rational grounds-economic or commercial or employee misconduct or incapacity. New Zealand introduced this protection in 1973 and while personal grievance protection was never perfect, and rarely provided adequate remedies against unjustified employer actions, it did act as a significant deterrent to at least the more obvious abuses of employer power. Protection from unjustified dismissal, as with union organisation, thus qualifies employee subordination and hence the power of an employer to unilaterally and arbitrarily control its labour force. An employee who can insist on their contractual rights, or on some control in how their labour is utilised, constrains the so-called right of capital to have an untrammelled ability to exploit that capital. On the other hand an employee who knows that they can be dismissed without reason, and see their own and their dependents future jeopardised, is an employee who for all practical purposes has few if any legal rights and will have no power or ability to control or protect their own economic security. Understand that and the logic behind National’s reforms becomes clear.
Political constrains may mean that John Key's government is not be able to introduce the United States employment-at-will rule which reduces employees to totally disposable assets, as many National supporters would have liked to do in 1991. Gutting the balanced test of justification and replacing it with one that comes close to equating lack of justification with employer irrationality is however a large step in that direction.
Thursday, April 15, 2010
Workplace Bullying
The recent release of the report by Professor Bentley and his colleagues on workplace bullying puts the spotlight on a problem that has, over recent years, increasingly been recognised as a major workplace issue. One obvious question that arises is what legal redress is avaiable to victims of bullying? The Minister of Labour, Kate Wilkinson, is reported as stating that the employment institutions can deal with claims of bullying through personal grievance claims. I agree with this comment although with some caution and reservations.
In some ways bullying stands in much the same position as sexual harassment did two or three decades ago. Society and the courts were initially slow to recognise both the nature and extent of that problem and to react positively in dealing with it. That position is now vastly improved. That is not to say that there are no problems in bringing a personal grievance based on sexual harassment - there are but they tend to be problems that are endemic to legal processes such as satisfying the burden of proof and the adversarial nature of the grievance process rather than a failure to recognise the underlying problem.
That both the Employment Court and the Authority take bullying seriously is clear if one examines cases over recent years. In a blog such as this it is not possible to provide a detailed legal analysis but a recent example is provided by Judge Shaw's decision in Clear v Waikato DHB [2008] ERNZ 646. Judge Shaw stressed the obligation of employers to provide a safe system of work and an obligation to properly investigate allegations of bullying. She also made the important point that such an investigation must consider the course of conduct as a whole (the 'persistence' aspect of bullying) and not focus on individual events in isolation. Other cases also indicate that both the Court and Authority have a good grasp of the problems posed by bullying. However in the absence of overt and obvious conduct such cases are not always easy to decide. The problem of "management style" for example poses real problems. One persons need to manage poor performance can be viewed by aother as bullying. However in general the Court and Authority seem to have taken a sensible and pragmatic approach in such cases.
As yet however the Authority and Court do not seem to have had to deal with the most intractable form of bullying, the workplace psychopath. Such bullies are typically confident and assured and likely to be supported internally by their own managers. Most practicing labour lawyers will have come across such cases and will know the difficulties they pose. and the severe nature of the trauma faced by the employee (or former employee) who often has difficulty even appreciating why they have been victimised. Formal proceedings merely increase the trauma and the result is often an indequate settlement with the bully suffering little or no consequences.
In the most insidious cases the character of bullies may be not fully appreciated by those hearing cases. Perceptions that victims are merely over-reacting to strong (and by implication necessary) management; that they are unable to adjust to new requirements or that bullying is just a “brand-new fashionable" escape clause for poor performance can have a sufficient grain of truth to cause confusion and potential bias. False perceptions of who might be telling truth based on the demeanour of witnesses are of particular concern: “he conducted himself favourably and was in charge of his emotions...” or “she maintained her dignity in responding [to allegations]. That is not the mark of a bully” show little appreciation of human conduct especially when the inevitable nervousness and confusion likely to be exhibited by the victim are seen as indications of lack of credibility.
In some ways bullying stands in much the same position as sexual harassment did two or three decades ago. Society and the courts were initially slow to recognise both the nature and extent of that problem and to react positively in dealing with it. That position is now vastly improved. That is not to say that there are no problems in bringing a personal grievance based on sexual harassment - there are but they tend to be problems that are endemic to legal processes such as satisfying the burden of proof and the adversarial nature of the grievance process rather than a failure to recognise the underlying problem.
That both the Employment Court and the Authority take bullying seriously is clear if one examines cases over recent years. In a blog such as this it is not possible to provide a detailed legal analysis but a recent example is provided by Judge Shaw's decision in Clear v Waikato DHB [2008] ERNZ 646. Judge Shaw stressed the obligation of employers to provide a safe system of work and an obligation to properly investigate allegations of bullying. She also made the important point that such an investigation must consider the course of conduct as a whole (the 'persistence' aspect of bullying) and not focus on individual events in isolation. Other cases also indicate that both the Court and Authority have a good grasp of the problems posed by bullying. However in the absence of overt and obvious conduct such cases are not always easy to decide. The problem of "management style" for example poses real problems. One persons need to manage poor performance can be viewed by aother as bullying. However in general the Court and Authority seem to have taken a sensible and pragmatic approach in such cases.
As yet however the Authority and Court do not seem to have had to deal with the most intractable form of bullying, the workplace psychopath. Such bullies are typically confident and assured and likely to be supported internally by their own managers. Most practicing labour lawyers will have come across such cases and will know the difficulties they pose. and the severe nature of the trauma faced by the employee (or former employee) who often has difficulty even appreciating why they have been victimised. Formal proceedings merely increase the trauma and the result is often an indequate settlement with the bully suffering little or no consequences.
In the most insidious cases the character of bullies may be not fully appreciated by those hearing cases. Perceptions that victims are merely over-reacting to strong (and by implication necessary) management; that they are unable to adjust to new requirements or that bullying is just a “brand-new fashionable" escape clause for poor performance can have a sufficient grain of truth to cause confusion and potential bias. False perceptions of who might be telling truth based on the demeanour of witnesses are of particular concern: “he conducted himself favourably and was in charge of his emotions...” or “she maintained her dignity in responding [to allegations]. That is not the mark of a bully” show little appreciation of human conduct especially when the inevitable nervousness and confusion likely to be exhibited by the victim are seen as indications of lack of credibility.
That being said, however, the personal grievance process provides the Authority and the Court with the tools to deal with cases of bullying and the effectivness of these bodies will increase as more cases are brought.
The personal grievance procedure provides as good a legal solution as is likely to be obtained but as with harassment it is second best protection - the best is that employers ensure that they are fully aware of the nature of workplace bullying and that they adopt a zero-tolerance policy towards it.
The report is avaible at; http://www.massey.ac.nz/massey/fms//Massey%20News/2010/04/docs/Bentley-et-al-report.pdf
The personal grievance procedure provides as good a legal solution as is likely to be obtained but as with harassment it is second best protection - the best is that employers ensure that they are fully aware of the nature of workplace bullying and that they adopt a zero-tolerance policy towards it.
The report is avaible at; http://www.massey.ac.nz/massey/fms//Massey%20News/2010/04/docs/Bentley-et-al-report.pdf
Readers may be intersted in a paper I wrote with Neisha Cbhibba on this topic in 2008: Intractable issues in the Workplace: Dealing with Workplace Bullying, Typhoid Chris and Stess
Monday, November 30, 2009
New bottle-same tired old message
While there will always be differences between National and Labour on employment law those differences have narrowed over the last half decade as National and its employer backers came to realise that not too much had changed since the Employment Contracts Act reshaped industrial relations in the early 1990s. Union membership density dropped to around 20% and has remained there, industrial stoppages rarely exceed 50 a year and collective bargaining now covers only about 10 percent or less of private sector workers. The coverage of collective bargaining dropped further under Labour in spite of the introduction of good faith bargining. The fairly restrained stance taken by National to labour relations since the elections reflects, as much as anything, that there are not many unions around worth bashing anymore. It might also have been thought to recognise that there is now a reasonable balance in the law between the need flexibility and protecting an employee's investment in their job - on which see my post "Serfdom and Employment".
Nevertheless there will always remain an element in National, especially in its small business and ACT end, that regards workers as something less than full citizens - as Roger Kerr once put it “While people are not commodities ..the labour services they provide … most certainly are”, a theoretical separation likely to appeal only to Chicago economists and Cartesian dualists. The categorisation of employees as commodities does however help to depersonalise employees - they cease to be citizens in the fullest sense and can be treated as ideally cheap and disposable: certainly they should not have legal rights to protect their employment status or to recognise their investment in it. One might have hoped that this attitude to workers, while unlikely to have fully vanished, might at least have given way to a more balanced approach. Productive economies in developed countries require a more stakeholder approach to employees, one which recognises the significant educational and training investment built up by employees and which protects both that investment and the economic security of employees from arbitrary employer actions - indeed that attitude seemed to have been ocurring over the last decade or so:-
And then along comes Dr Brash peddling the old snake-oil made from the corpse of new-right deregulation and the neoliberal economics that brought us the current financial crisis. All we need to do to bring our standard of living up to Australia's is to bash the workers-again. Dr Brash marvelous medicine is essentially the new right's unfinished business of the 1990s: get rid of the floor of employment rights, introduce employment-at-will (or as close to it as you can get away with) and slash the welfare state.
John Key has rightly rejected this prescription and in an MMP environment it is almost certainly not politically viable. The last time reforms of this type ocurred, under both Labour and National, they were driven through Parliament under the FPP system:- which we will have a chance to return to in a few years. While the Prime Minister may have reburied the new-right corpse for the present it should be kept in mind that zombies usually reappear and that their defeat is always messy.
In case you didn't read the whole report and get that sense of deja vu:
“Labour market:
a. Labour law should be amended to strengthen the freedom of negotiation between workers and their employers, including, for example, streamlining provisions governing dismissal of workers, and putting less emphasis on procedural matters.
b. Statutory provisions allowing enforceable mutually-agreed probationary periods for new employees should be extended, from the current maximum of 90 days for those working for small firms to a maximum of 12 months for employees of firms of any size.
c. For employees earning in excess of $100,000 per annum, employment relations should be governed by the standard provisions of contract law rather than by the Employment Relations Act.
d. The youth minimum wage should be reinstated as a matter of urgency, and minimum wage rates should be reduced to the same ratio to average wages that prevailed in 1999.”
Nevertheless there will always remain an element in National, especially in its small business and ACT end, that regards workers as something less than full citizens - as Roger Kerr once put it “While people are not commodities ..the labour services they provide … most certainly are”, a theoretical separation likely to appeal only to Chicago economists and Cartesian dualists. The categorisation of employees as commodities does however help to depersonalise employees - they cease to be citizens in the fullest sense and can be treated as ideally cheap and disposable: certainly they should not have legal rights to protect their employment status or to recognise their investment in it. One might have hoped that this attitude to workers, while unlikely to have fully vanished, might at least have given way to a more balanced approach. Productive economies in developed countries require a more stakeholder approach to employees, one which recognises the significant educational and training investment built up by employees and which protects both that investment and the economic security of employees from arbitrary employer actions - indeed that attitude seemed to have been ocurring over the last decade or so:-
And then along comes Dr Brash peddling the old snake-oil made from the corpse of new-right deregulation and the neoliberal economics that brought us the current financial crisis. All we need to do to bring our standard of living up to Australia's is to bash the workers-again. Dr Brash marvelous medicine is essentially the new right's unfinished business of the 1990s: get rid of the floor of employment rights, introduce employment-at-will (or as close to it as you can get away with) and slash the welfare state.
John Key has rightly rejected this prescription and in an MMP environment it is almost certainly not politically viable. The last time reforms of this type ocurred, under both Labour and National, they were driven through Parliament under the FPP system:- which we will have a chance to return to in a few years. While the Prime Minister may have reburied the new-right corpse for the present it should be kept in mind that zombies usually reappear and that their defeat is always messy.
In case you didn't read the whole report and get that sense of deja vu:
“Labour market:
a. Labour law should be amended to strengthen the freedom of negotiation between workers and their employers, including, for example, streamlining provisions governing dismissal of workers, and putting less emphasis on procedural matters.
b. Statutory provisions allowing enforceable mutually-agreed probationary periods for new employees should be extended, from the current maximum of 90 days for those working for small firms to a maximum of 12 months for employees of firms of any size.
c. For employees earning in excess of $100,000 per annum, employment relations should be governed by the standard provisions of contract law rather than by the Employment Relations Act.
d. The youth minimum wage should be reinstated as a matter of urgency, and minimum wage rates should be reduced to the same ratio to average wages that prevailed in 1999.”
Wednesday, November 18, 2009
Contractors across the ditch
Occasionally it is interesting to glance across the Tasman. In Australia independent contracting has a considerably higher political profile than in New Zealand. Indeed in Dr Craig Emerson Australia has a Minister for, among other things, independent contractors. The reason for this profile appears in part to be due to the lobbying activities of groups that either use or claim to represent independent contractors such as the Housing Industry Association and the Independent Contractors Association. The latter is a small but very vocal body which purports to represent the many hundreds of thousands of contractors in Australia: apparently it is committed to promoting a free choice between the “powerlessness and bondage of employment” and the “equality and liberation of shared power under independent contracting.” While the description of employment may ring some bells the description of independent contracting seems a tad overoptimistic particularly for that group of contractors who are better described as “disguised employees” or “dependent contractors. Nevertheless it seems that both the Labor and Coalition parties have become committed to supporting ‘the choice of Australians to pursue a career as independent contractors’.
Shae McCrystal of Sydney Law School, suggests that in Australia independent contractors are increasingly seen as a distinct class of small business actors deserving their own regulatory attention. The Howard government for example passed an Independent Contractors Act, mainly to limit the ability of the states to apply employment-like protection to contractors, but the Act which is still in force does allow contractors covered by it (don’t even ask about Australian constitutional complications) to challenge unfair contracts – in a recent case contracts with owner-drivers were held to be unfair when they allowed the principal to require upgrades to trucks (from singletrailers to B-doubles) where there was no provision for reasonable compensation for the extra expense. The new Fair Work Act 2009 provides some limited protection by prohibiting misrepresenting employment as an independent contracting arrangement and dismissing an employee in order to re-engage them as a contractor.
Nevertheless, as in New Zealand, dependent contractors are caught between a rock and a hard place. They are excluded from the protective coverage of labour legislation, including the right to form unions and to bargain collectively, while trade practices legislation generally regards any efforts to collectively improve conditions of work as unlawful. In a recent article, “Is there a 'Public Benefit' in Improving Working Conditions for Independent Contractors? Collective Bargaining and the Trade Practices Act 1974 (Cth)”, McCrystal looks in some detail at the position of contractors under Australia’s trade practices legislation. Groups of contractors may apply for permission to engage in conduct that might otherwise breach Act but for an application to be successful the Commission needs to be satisfied that any public benefit from the conduct is outweighed by the likely public detriment. Such applications have almost always failed.
McCrystal summarises the position as follows: “The public benefit test does not accommodate the argument that improved control over working conditions can be a public benefit in and of itself, especially where it ultimately increases the cost of service provision. Additionally, the competition regulators appear unable to conceive of countervailing bargaining power as a public good of itself. Potentially coercive collective action operating in opposition to strong market power is considered too great an anti-competitive risk to be allowed. Parties with no market power may, if a notification is allowed, collectively try to pursue efficiency gains provided that the collective does not seek to exercise any muscle. Groups with existing market power, however theoretical, cannot combine.”
McCrystal's article can be downloaded without charge from the Social Science Research Network Electronic Library at: http://ssrn.com/abstract=1491855.]
Shae McCrystal of Sydney Law School, suggests that in Australia independent contractors are increasingly seen as a distinct class of small business actors deserving their own regulatory attention. The Howard government for example passed an Independent Contractors Act, mainly to limit the ability of the states to apply employment-like protection to contractors, but the Act which is still in force does allow contractors covered by it (don’t even ask about Australian constitutional complications) to challenge unfair contracts – in a recent case contracts with owner-drivers were held to be unfair when they allowed the principal to require upgrades to trucks (from singletrailers to B-doubles) where there was no provision for reasonable compensation for the extra expense. The new Fair Work Act 2009 provides some limited protection by prohibiting misrepresenting employment as an independent contracting arrangement and dismissing an employee in order to re-engage them as a contractor.
Nevertheless, as in New Zealand, dependent contractors are caught between a rock and a hard place. They are excluded from the protective coverage of labour legislation, including the right to form unions and to bargain collectively, while trade practices legislation generally regards any efforts to collectively improve conditions of work as unlawful. In a recent article, “Is there a 'Public Benefit' in Improving Working Conditions for Independent Contractors? Collective Bargaining and the Trade Practices Act 1974 (Cth)”, McCrystal looks in some detail at the position of contractors under Australia’s trade practices legislation. Groups of contractors may apply for permission to engage in conduct that might otherwise breach Act but for an application to be successful the Commission needs to be satisfied that any public benefit from the conduct is outweighed by the likely public detriment. Such applications have almost always failed.
McCrystal summarises the position as follows: “The public benefit test does not accommodate the argument that improved control over working conditions can be a public benefit in and of itself, especially where it ultimately increases the cost of service provision. Additionally, the competition regulators appear unable to conceive of countervailing bargaining power as a public good of itself. Potentially coercive collective action operating in opposition to strong market power is considered too great an anti-competitive risk to be allowed. Parties with no market power may, if a notification is allowed, collectively try to pursue efficiency gains provided that the collective does not seek to exercise any muscle. Groups with existing market power, however theoretical, cannot combine.”
McCrystal's article can be downloaded without charge from the Social Science Research Network Electronic Library at: http://ssrn.com/abstract=1491855.]
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