The nature of the reforms announced by the Minister of Labour yesterday are encapsulated in the proposal for "Removing the 30-day rule that forces non-union members to take union terms and conditions". This piece of dissimulation typifies these reforms-one's heart bleeds for those workers "forced" to accept inferior working conditions. But opps doesn't the Act actually allow such workers to also agree to any terms not inconsistent with the collective agreement - such as higher wages. Silly me, it appears that workers are to be freed from the obligation to accept decent conditions to that they can immediately be put on to whatever inferior conditions the employer determines.
What is quite clear is that the National Government and its Parliamentary allies are launching an attack on the most vulnerable groups of workers, the young and the precariously employed. The reduction in the minimum wage for under 18 year olds signaled an opening shot of this new campaign and yesterday's announcement carries on the offensive. I will look at the reforms in more detail later but some points might be highlighted:
(a) the 6A exemption for SMEs of course leaves the employees of such firms even more vulnerable to employment insecurity and cuts in working conditions. No doubt also many larger firms will be restructuring to take advantage of the SME exception. It also seems likely that the implied warranty against unreasonably increasing employee entitlements will have a chilling effect on improving employee terms and conditions as existing employers seek to avoid legal risk.
(b)The changes to collective bargaining laws are likely to further undermine collective bargaining and provide employers with options to walk away from bargaining. How these changes will affect the bargaining facilitation and determination provisions of the Act is not explained but is unlikely to be in a positive way. One suspects that these changes may have some impact in the state sector by enabling state sector employers to stonewall bargaining with the still large state sector unions and then to seek a declaration that bargaining has ended. It was after all a state sector case that prevented an employer's attempt to declare that bargaining had ended.
(c) The rest and meal break provisions, one might recall, were introduced into Parliament some years ago to prevent the countries airports grinding to a halt along with other overstated and over-hyped consequences of allowing workers proper rests. The country has got along well without these reforms so the motive for them is obscure. Unless, possibly, it is the provisions in the Bill that effectively allow employers to effectively eliminate breaks or to require employees to remain at work during breaks that the Government wishes to advance.
Showing posts with label industrial relations. Show all posts
Showing posts with label industrial relations. Show all posts
Wednesday, October 31, 2012
Friday, August 26, 2011
Employment Law and the Election
Apparently today is the first day of the three month 'regulated period' during which political parties are required to spend their own money on electioneering. With a little imagination that makes today a good day to begin commenting on the implications of the election for the future of employment law.
Three years ago all seemed reasonably quiet on the employment front. National's minimal employment policy fitted onto a single, generously spaced, A4 page. Business New Zealand were making much of how change was not required and a period of legal stability was required. Labour had, on employment policy as much else, run out of steam. I was even rash enough to suggest that some broad degree of consensus might have emerged on the structure of employment law. This opinion was based on the fact that the ERA had changed little and that the ECA labour market reforms remained firmly in place. Indeed, from an industrial relations perspective, the ECA changes had been further entrenched.
Rash I might have been, but not stupid. As a good lawyer and an academic I was careful to qualify this view with a few "perhaps" and "it may be"s and so on. While my prediction did look justifiable for a while, it soon became apparent that I had allowed my natural optimism to override my cynical common sense. One likes to think law reform is based on evidence and reasoned opinion. I had of course temporarily overlooked that this is politics where evidence and common sense always take second place to ideology, the prejudice of a party's supporters and short term expediency. Hence of course the 90 day trial periods were quickly extended to all workplaces and s103A amended to favour employers in personal grievance cases to an even greater degree than was previously the case. In what can only have been a purely instinctual kneejerk response, union access to employees was limited.
In the case of all three reforms there was no evidence of any 'mischief' that needed reform. Indeed the law was working perfectly satisfactorily in all cases. That is if you believe that employees are citizens and that they should enjoy basic protections in their employment. Sort of like the owners of businesses, only considerably less! Of course, if you take the view that employees are commodities and disposable, the perspective is different. However in a democracy there should be a balance of rights and the ERA had achieved that, but in a manner that was both cautious and conservative. The New Zealand labour market, since 1991,has been, and remains, one of the least regulated among the OECD countries. In 2008 we had the 4th least restrictive level of employment protection, not that one would know it given the cries of woe from business lobbyists.
This election promises to be more interesting. National's far right and ACT clearly wish to return employment law to their rather strange vision of a 19th century utopia, the mainstream of National seem to base its policy on small town Chamber of Commerce anecdotes, and Labour shows signs of recovering the soul it sold in the 1980s!
All in all it should be interesting and further blogs will emerge when policies are announced.
Three years ago all seemed reasonably quiet on the employment front. National's minimal employment policy fitted onto a single, generously spaced, A4 page. Business New Zealand were making much of how change was not required and a period of legal stability was required. Labour had, on employment policy as much else, run out of steam. I was even rash enough to suggest that some broad degree of consensus might have emerged on the structure of employment law. This opinion was based on the fact that the ERA had changed little and that the ECA labour market reforms remained firmly in place. Indeed, from an industrial relations perspective, the ECA changes had been further entrenched.
Rash I might have been, but not stupid. As a good lawyer and an academic I was careful to qualify this view with a few "perhaps" and "it may be"s and so on. While my prediction did look justifiable for a while, it soon became apparent that I had allowed my natural optimism to override my cynical common sense. One likes to think law reform is based on evidence and reasoned opinion. I had of course temporarily overlooked that this is politics where evidence and common sense always take second place to ideology, the prejudice of a party's supporters and short term expediency. Hence of course the 90 day trial periods were quickly extended to all workplaces and s103A amended to favour employers in personal grievance cases to an even greater degree than was previously the case. In what can only have been a purely instinctual kneejerk response, union access to employees was limited.
In the case of all three reforms there was no evidence of any 'mischief' that needed reform. Indeed the law was working perfectly satisfactorily in all cases. That is if you believe that employees are citizens and that they should enjoy basic protections in their employment. Sort of like the owners of businesses, only considerably less! Of course, if you take the view that employees are commodities and disposable, the perspective is different. However in a democracy there should be a balance of rights and the ERA had achieved that, but in a manner that was both cautious and conservative. The New Zealand labour market, since 1991,has been, and remains, one of the least regulated among the OECD countries. In 2008 we had the 4th least restrictive level of employment protection, not that one would know it given the cries of woe from business lobbyists.
This election promises to be more interesting. National's far right and ACT clearly wish to return employment law to their rather strange vision of a 19th century utopia, the mainstream of National seem to base its policy on small town Chamber of Commerce anecdotes, and Labour shows signs of recovering the soul it sold in the 1980s!
All in all it should be interesting and further blogs will emerge when policies are announced.
Tuesday, May 18, 2010
A right to strike in the UK - Yeh right Updated
It seems that the blog below now needs an update. The Court of Appeal (2-1) has overturned the injunction. The aptly named Lord Judge made the point that "Legal processes do not constitute mediation. On the contrary they often serve to inflame rather than mollify the feelings of those involved." The decision means that the law is not a total ass in this case - I haven't read the full case yet but reports suggest a crucial failure by the union was not to report that 11 ballot papers were spoilt!
It appears that the British courts have in effect come to the conclusion that strikes should not be permitted, a conclusion that will surprise no-one familiar with the history of the role of the common law in industrial relations. In the the period from 1870-1906, and again in the 1960s, these courts invented a whole range of economic torts with the clear objective of ensuring that even the mildest form of industrial action was unlawful. It was only with Parliament's intervention through the Trade Disputes Act 1906 that strikes became lawful - an Act which it was claimed to place unions above the law. In fact the argument was that we, the judges have decided unions should be powerless and how dare the elected representatives of Britain interfere with our decisions.
The most recent technique for neutering unions is to use the complex and largely unworkable ballot requirements of the UK legislation (a legacy of New Labour) as the basis for an injunction prohibiting a strike. No matter that the ballot was absolutely clear in its results, and that the alleged deficiency could have made no conceivable difference to the result, an interim injunction will be issued to prohibit the action. The issue of two injunctions in recent months to prevent British Airways staff striking clearly illustrates that the substance of the result is irrelevant. In the first case a very small group on former employees were balloted due to totally understandable problems in maintaining accurate membership lists - a number that would not have had the slightest influence on the result. The latest injunction is even more mind-bogglingly fatuous - the results were not reported to members in sufficient detail. The interim injunction procedure promotes such results - an employer merely has to show that they have an arguable case and that the "balance of convenience" favours the injunction. And if anyone knows of a case where the balance of convenience has not favoured preventing a strike let me know. Of course if the union's legal position is later (a few years down the track) shown to be correct the strike can go ahead. It is not only BA workers (whose vote of over 80% support was negated) who have been affected. The same tactic was recently deployed against rail workers.
The effect of these decisions is that the British judiciary has (again) effectively outlawed the right to strike .
It appears that the British courts have in effect come to the conclusion that strikes should not be permitted, a conclusion that will surprise no-one familiar with the history of the role of the common law in industrial relations. In the the period from 1870-1906, and again in the 1960s, these courts invented a whole range of economic torts with the clear objective of ensuring that even the mildest form of industrial action was unlawful. It was only with Parliament's intervention through the Trade Disputes Act 1906 that strikes became lawful - an Act which it was claimed to place unions above the law. In fact the argument was that we, the judges have decided unions should be powerless and how dare the elected representatives of Britain interfere with our decisions.
The most recent technique for neutering unions is to use the complex and largely unworkable ballot requirements of the UK legislation (a legacy of New Labour) as the basis for an injunction prohibiting a strike. No matter that the ballot was absolutely clear in its results, and that the alleged deficiency could have made no conceivable difference to the result, an interim injunction will be issued to prohibit the action. The issue of two injunctions in recent months to prevent British Airways staff striking clearly illustrates that the substance of the result is irrelevant. In the first case a very small group on former employees were balloted due to totally understandable problems in maintaining accurate membership lists - a number that would not have had the slightest influence on the result. The latest injunction is even more mind-bogglingly fatuous - the results were not reported to members in sufficient detail. The interim injunction procedure promotes such results - an employer merely has to show that they have an arguable case and that the "balance of convenience" favours the injunction. And if anyone knows of a case where the balance of convenience has not favoured preventing a strike let me know. Of course if the union's legal position is later (a few years down the track) shown to be correct the strike can go ahead. It is not only BA workers (whose vote of over 80% support was negated) who have been affected. The same tactic was recently deployed against rail workers.
The effect of these decisions is that the British judiciary has (again) effectively outlawed the right to strike .
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