Lord Wedderburn of Charlton: born 13 April 1927; died 9 March 2012

Lord Wedderburn, one of the great British labour law academics, has died aged 84.  Bill Wedderburn would have been well known to all labour lawyers. His work was immensely infuential particularly for those of us who were educated in labour law in the first decade or so when the subject was first formally recognised and taught in law schools.  His book, The Worker and the Law (1965), was a classic of labour law scholarship and one of the foundational texts of the subject. Bill's contribution was not only academic, at a level that most of us can only dream of achieving, but he also made major political and practical contributions to labour law. As with all the greatest labour lawyers his work reflected a strong sense of social justice.

Bill's achievements are best described by others but on a personal note I would mention that I met Bill several times. He was always hospitable and welcoming and prepared to assist to open the odd doorway in Britain.

A full obituary may be read at The Guardian

I've Been Publishing

A must have item for those interested in New Zealand labour and employment law  Reconstructing New Zealand's Labour Law: Consensus or Divergence has been recently published.  It can be purchased from Victoria University Press

New Zealand’s first labour law system, the conciliation and arbitration system was a stable and balanced model that served New Zealand well for most of the twentieth century.  However from the mid-1960s this system slowly collapsed under the weight of political and economic pressures.  In 1991, after a two decades of attempted reform, a new era in labour law was heralded by the Employment Contracts Act 1991.  This Act, strongly influenced by neo-liberal ideology, was unashamedly anti-union and anti-pluralist.  It was intended to deunionise workplaces and replace the arbitration system’s pluralist ethos with the individualised and subordinate employment relationship common law.  A decade later these reforms were in turn modified by the Employment Relations Act 2000 which attempted a return to a more pluralist legal  model centred on a statutory duty of good faith applicable to both individual and collective employment relationships.  A little more than a decade later,

including one term of National government, there appears to be at least some consensus on the broad structure of labour law and therefore a new period of labour law stability may have developed.

The first part of this book traces the evolution of New Zealand labour law from colonisation to the present day and in particular the turbulent period between 1970 and 2000 when our contemporary system of labour law developed.  In the second part it describes that system of law and asks whether a new consensus has developed or whether there is merely a lull before a new storm.

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

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:

• 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 is particularly broad and goes well beyond that in the New Zealand Bill of Rights Act 1990.  The scope of the compatibility report will in turn need to be much broader than that provided under s 7 of the New Zealand Act. It also appears that in Australia an assessment will be required for all legislation, not just where there is an apparent inconsistency.

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

This should lead to some interesting reading in the assessment statements.  It would have been interesting to see such statements in New Zealand and readers might care to contemplate those on recent labour law changes in the light of the extracts below.The interesting bit  from a labour law perspective is  articles 6 -8  of the International Covenant on Economic, Social and Cultural Rights.

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.

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):

1. Cooperation in labour-employer relations  (13th)
2. Flexibility of wage determination  (26th)
3. Rigidity of employment index (10th)
4. Hiring and firing costs (86th)
5. Redundancy costs measured by weeks of salary required to be paid (1st)
6. Pay and productivity (34th)
7. Reliance on professional management (2nd)
8. Brain drain (82nd)
9. Woman in labour force: ration to men (43rd)

Those items in bold are derived from the Forum's Executive Opinion Survey (in the case of New Zealand apparently 51 "business leaders" according to the New Zealand Institute commentary),  All other figures come from the World Bank's 2010 Doing Business report except for 9 which is from ILO figures.

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

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.

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.