July 2010

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The new changes - where to from here?

July 27, 2010 in Legislation

afekyefca5t14frcauhdbj6cagychgpcasgl0yacal0qowecajqf52dca61q5i9ca551i91cafucigpcamkszpdca0ri6u2cay562zvcagv041yca3o35o1cai8s1iccaqme82ucab460ttcaku344qca8va071It wasn’t difficult to decide on the topic for this week’s lead post:  the changes proposed to New Zealand’s employment laws are significant – and have given rise to a good amount of comment (and a bit of gossip as well!). 

Being fair, I think that most of the proposed changes announced by the Prime Minister had been foreshadowed – such that they could not truly be described as any surprise at all. 

Others were, however, more of a surprise – and they tend to be the ones that are more controversial. 

I have had a careful think about a couple of the particular proposals – and they are the subject of my posts below. 

As always, I hope you enjoy the read.

 

Sickies and mental health - end of days?

July 27, 2010 in Health and Safety, Workplace policies

104px-doctors_stethoscope_2One of the more controversial aspects of the proposed change to employment law concerns the prospect of an employer asking an employee for a sick note after an absence of one day. 

Kate Wilkinson, the Minister of Labour, says that the suggestion that every employee will be asked to provide a medical certificate whenever they are sick is ridiculous.  Amongst other things, the Minister rightfully points out that employers simply won’t want to waste time and money requiring every worker to go and see a doctor (at the employer’s expense) when they have a day off for sickness. 

In contrast, Andrew Little (National Secretary of the EPMU and Labour Party President) says that the measure is impractical, and that “the cuddly nanny state has given way to school ma’am finger-wagging”. 

Rather than being a legal issue, this is probably something of a political question – and one of perception.  You may have your own views about the practicalities of the proposed change. 

What I did think I could offer to the debate, however, is a reflection upon developments in the UK around the presentation of sick notes.  Have a look here to see the way in which legislative amendments have resulted in doctors in the UK being significantly constrained in the information they may provide to employers by way of sick notes – to the point that they are now only allowed to indicate whether a worker is “fit” or “unfit” for work. 

One would think that the obligation of good faith (especially the need to be open and communicative about workplace matters) would require both employees and their doctors alike to be a little bit more forthcoming in the information provided – even where an absence is only for one day.

 

 

Employment advocates - time to regulate?

July 27, 2010 in Courts and tribunals, Mediation and settlement

120px-ivy_mike_-_mushroom_cloudAs least in the minds of some, the announcement that the Government will be taking steps to regulate employee advocates came as something of a surprise.  Not so much to members of the employment law community, however. 

In distinction to most other jurisdictions, employment law allows – people who are not qualified as lawyers to act as counsel in a legal forum.  The practice probably has its origins in the union movement several decades ago – where union advocates were legitimately skilled in advancing points on behalf of their unions – but weren’t necessarily legally qualified. 

What has arisen over the last decade, however, is a more concerning practice – where non-legally qualified advocates act for employee complainants – often on a “no win no fee” basis. 

Lawyers are constrained in their ability to act on contingency fee arrangements – and, amongst other things, are ethically prevented from drumming up litigation where to do so is irresponsible. 

The same constraints are not placed upon advocates, however, and there is a view (at least held by a number of lawyers) that, in this way, advocates are bad for the employment law system. 

In my view, advocates have a legitimate place to play in the employment law jurisdiction – and those of them who act responsibly should have no fear about the introduction of regulation to control their behaviour. 

It would seem, however, that the Government has a view that the actions of some require limitation and control. 

Proposed changes to employment law

July 19, 2010 in Courts and tribunals

the-two-bobsA quick update for those interested in the potential changes to New Zealand’s employment laws.

 

Here is a succinct summary of the proposed changes announced by the Prime Minister:

 

1.       Extending 90 day trial period to all workplaces.

 

2.       Employers will be able to communicate directly with workers during collective bargaining.

 

3.       Union access will require employer consent, which ‘cannot be unreasonably withheld’.

 

4.       Reduced focus on procedural fairness in personal grievance cases. The Government will ‘ensure that an employer’s processes are not the subject of pedantic scrutiny’.

 

5.       The Employment Court will have less ability to question the reason for dismissal as the test is changed from what a reasonable employer ‘would’ do, to ‘could’ do.

 

6.       Removing reinstatement as the primary remedy in dismissal cases.

 

7.       The Employment Relations Authority will be able to ‘filter out vexatious or frivolous claims at an early stage’.

 

8.       There will be penalties for delaying behaviour at the Authority.

 

9.       Up to one week’s annual holidays can be traded for cash.

 

10.   For those workers whose hours of work and pay are irregular, their payment for sick leave, bereavement leave, public holidays and alternative holidays will be calculated by averaging gross earnings for the preceding 52 weeks or whatever lesser period the employee has been with that employer.

 

11.   Workers can agree to transfer the observance of public holidays to another (identified) working day.

 

12.   Employers will be able to ‘ask for proof of sickness or injury within three consecutive days of an employee taking sick leave, but will have to cover the employee’s reasonable costs in obtaining proof’.

 

13.   The maximum penalties for non-compliance with the Holidays Act will double from $5,000 to $10,000 if the employer is an individual, and from $10,000 to $20,000 if the employer is a company or other body corporate.

 

14.   Early mediation services without representation, prior to any formal mediation.

 

15.   The Government intends to make some other changes ‘to improve the way the Employment Relations Authority works, including moving to a more judicial mode of operation, with the right to cross-examine witnesses’.

16.   A code of ethics for employment advocates.

 

17.   Formal definition of the role of Labour Inspector.

 

18.   Allowing Labour Inspectors to issue improvement notices.

 

Also, click here to have a look at the Department of Labour’s evaluation of the first year of operation of the 90 day trial period.

 

 

Child labour : a new frontier for addressing the scourge?

July 16, 2010 in Human Rights

120px-child_labourer_wasimChild labour is a curse upon the world that has, of course, existed for many centuries.  That it still exists at all, however, is a blight upon the world. 

What has changed, however, is society’s recognition of the issue – and its condemnation of it.  And, as a story in the New Zealand Herald illustrated this week, a child labour issue in one country – in which there may be no breach of law – can cause repercussions in others.  The story is about the tobacco company, Phillip Morris – which was forced to admit that child workers as young as 10 have been subjected to long hours working for it in Kazakhstan. 

What is interesting about the story is how – as a result of technology – the company could lose face in the Western world.  And – on a philosophical level – maybe it is this type of commercial and peer pressure that is more likely to redress the problem of child labour, rather than by attempting to legislate in those different countries against its existence. 

Also, this week, on a similar note – a story about Chinese labourers, and the increased pressure upon factories to recruit (and, correspondingly, the need to offer better terms and conditions for employees).  Perhaps the market has turned in favour of the Chinese labourer as well. 

Employee behaviour - and the way it influences client perception, behaviour and workplace “culture”

July 16, 2010 in Workplace quandaries

91px-asian_flight_attendantsA writer called China Gorman has started a blog this week – which was profiled on the always-readable HR Capitalist. 

China’s first blog post is an interesting one – and got me thinking about a number of different things. 

Have a read:  it is about the way in which employees behave in their workplace – and the way in which it can affect the attitudes of those who utilise the employee’s services. 

You may sympathise with the story (although I hope not so directly).

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