90 Day Trial legislation author joins debate

Author of the 90 Day Trial legislation, Wayne Mapp, says that Andrew Little’s attempt to clarify his stance after appearing to backtrack on a personal and Party commitment to scrap 90 Day Trials is ambiguous.

Little has emailed Labour branch and LEC office holders with a ‘clarification’ of his stance on 90 Day Trials – see Little privately tries to clarify his 90 Day Trial stance. .

Someone who is presumably a branch or LEC office holder has published this at The Standard, presumably with approval from Little or Labour. Party members claim it wasn’t circulated to them.

“During the press conference that followed I was asked about our position on the 90 day trial period. Labour has not, and does not, support the 90 day law as it stands. It is unfair and needs to change. As part of our overall policy review we are working with businesses, workers and their unions about how fair trial periods will work.

Labour is not opposed to trial periods where they provide opportunities for those who might not otherwise get them and where they are applied fairly. That kind of trial period has been provided for in our law for many decades, but the law National brought in is unfair and we will change it.”

Mapp, ex National MP (retired 2011) who claims to be the author of the 90 Day Trial legislation, joined the ensuing discussion at The Standard. saying he thought Little’s statement was ambiguous.

As the author of the 90 day trial periods, I have a particular interest in this issue. In my view, Andrew Little’s words are ambiguous.

He knows that every OECD nation has trial periods where the full adjudication rights are not available for employees. In short an employer can say to the employee “it has not worked out”, in the knowledge they cannot be taken to court to contest the decision (except for racial discrimination or similar).

In some countries the trial period is as long as two years, which seems far too long. I chose 90 days because it is about the shortest period of any OECD country. I did so on the basis that it would seen by most New Zealanders as a reasonable period for the employer to make a fair judgement about the employee, On this basis I considered the law would be able to survive a change of government, particularly if it was not seen to have been abused. In my view it has generally worked as intended, and there are no real scandals about widespread abuse.

Of course I know Standardnistas will dispute that claim, but by and large Standardnista’s political views are well to the left of middle New Zealand, so that will be no surprise.

Coming back to the ambiguity. Andrew Little says a trial period “has been provided for in our law for many decades, but the law National bought in is unfair and we will change it.”

On one interpretation of his words he is proposing no change at all from the law that was in force prior to 2009. On this basis he envisages the full personal grievance procedure being available from day one, which defeats the entire purpose of a trial period. That is why the pre-2009 law for trial periods was never used. There was no difference at all with any other employment contract, so there was no point in having a trial period.

But did he really say that Labour would go back to the pre-2009 law? As I read it the first part of the statement is more of an observation about the pre-2009 law. When he says “the law that National bought in is unfair and we will change it”, he is not necessarily saying he will go back to the pre-2009 law. He could be saying that the changes will be something between what the law is now and what is was prior to 2009.

Certainly the impression that he apparently intended to give to the audience was that he was not simply going to reinstate the pre-2009 law.

Possible changes that would be less than the reinstatement of the full personal grievance procedure, could include the employer be required to provide a written statement as to why the trial period is being terminated. It might include a period of 2 weeks or so whereby an employee could rectify the issue that is causing the employer to end the trial period.

Given the ambiguity, Andrew Little will need to clarify what he actually meant.

‘Red-blooded’ responded:

The fact that he has acknowledged that some form of trial period can be useful but said that the current law is unfair and any protocols around termination of employment need to be fair seems to be a pretty clear statement of intent.

If you are the author of the current law, your viewpoint is just as extreme as any being represented by commenters here; it’s just extreme in the opposite direction. You are certainly not a disinterested commentator and have your own reasons for trying to muddy the waters around Little’s comments.

Wayne Mapp:

Given that every OECD country has trial periods and 90 days is among the shortest, you cannot seriously argue I am an extremist on this issue. In fact on the basis of the range of law in the OECD nations, l am left of centre!

A right wing extremist would propose the ACT approach on employment law, which is pretty much employment at will (or whatever the parties agree) across all employment contracts.

I am certainly not a disinterested commentator on this issue. But it is hardly “trying to muddy the waters around Little’s comments” to suggest that Mr Little needs to clarify what he meant. This whole post exists because there is some confusion about what he meant.

Not just confusion, there’s serious consternation from a number of people on the left who still want to see the legislation scrapped, as previously promised by Labour and by Little himself.

Currently there is no public clarification from Little on this on the Labour Party website. There is no recent mention of 90 Day Trials on Little’s Facebook or Twitter.

From Labour’s currently published policy: Click here for our full Work and Wages policy

First hundred days programme of action

Labour’s ‘hundred days’ programme of action will roll back National’s anti-worker employment law changes and make positive changes.

In our first hundred days, Labour will:

• increase the minimum wage to $15 an hour, with a further increase to $16.25 an hour in early 2015;

• introduce 26 weeks paid parental leave;

• set a course to raise the minimum wage to two-thirds of the average wage by the end of our second term, as economic conditions allow;

restore workers’ right to contest dismissals during the first 90 days of employment by abolishing the current government’s Fire At Will law;

Little appears to have signalled a change to this policy.

Little privately tries to clarify his 90 Day Trial stance

Apparently Andrew Little has tried to clarify his stance on 90 Day Trials in an internal Labour email.

As posted this morning:

Stuff reports: Labour would retain 90-day trial periods, but make them fairer – Little

Andrew Little appears to have made an about turn on labour law reform, ruling out abolishing the 90-day trial period for workers.

The Council of Trade Unions (CTU) has called on Labour to clarify its position and the Government is accusing Little of “weasel words”.

At a breakfast in Upper Hutt on Friday, Little was asked about Labour’s position on 90 day trial period, in which employers can dismiss workers.

“Our policy is to add a fairness requirement,” Little said.

The question frequently came up from employers, Little said, with every employer indicating they already gave feedback to any worker they let go, so they would not be affected under Labour’s policy.

“We just want to make a requirement to give feedback so the person knows whether they’re on track to make the grade or not.”

Asked afterwards if that meant that the trial periods would certainly stay, Little said: “Well we wouldn’t be talking about making the 90 day trial periods fairer if we were going to get rid of it.”

Any changes would not have a significant impact on employers, Little said.

“There won’t be any new onerous obligations in that regard, but it will make it fairer and we will write that into law.”

This was regarded as quite vague by some, including Labour supporters.

At The Standard Anthony Robins posted Labour on fire at will and commented:

I hope we get some clarity on this today. I would not be surprised if the original report of a change in policy turns out to be correct, the quotes from Little seem pretty specific. I think that Labour has to “swallow some dead rats” to get traction again, and this may be one of them.

After discussion and some strong criticism Labour Party member Te Reo Putake revealed Little has sent out an email to some in Labour. He first commented:

Andrew Little comments:

“During the press conference that followed I was asked about our position on the 90 day trial period. Labour has not, and does not, support the 90 day law as it stands. It is unfair and needs to change. As part of our overall policy review we are working with businesses, workers and their unions about how fair trial periods will work.

Labour is not opposed to trial periods where they provide opportunities for those who might not otherwise get them and where they are applied fairly. That kind of trial period has been provided for in our law for many decades, but the law National brought in is unfair and we will change it.”

Weka asked:

Where’s that from trp? Would love to see it up as a post (Notices and Features?) just so there is a clear statment that is highly visible.

Te reo Putake replied:

An internal email this morning, weka. I’ll add it to the post (assuming r0b doesn’t mind?).

That confirms that he is privy to internal Labour correspondence (and is an author at The Standard).

Another party member Colonial Viper responded:

I don’t understand, who did Andrew Little issue this clarification to?

Why has it not been put out as a standard press release – is there a reason Little won’t stand behind this statement in public?

And that suggests it was a limited circulation. Presumably Te Reo Putake had clearance from Little or Labour to publicise internal correspondence.

As following comments reveal not all party members got this email – TRP seems to have privileged contact with Little. Interesting that TRP is helping defend the backflip, putting his party interests ahead of his union interests.

It’s worth re-posting these quotes here:

”We don’t need the 90-day law and under Labour it will go.”
Source – https://www.labour.org.nz/media/90-day-law-sees-more-workers-shown-door

“Labour would, however, not back away from its plans to change employment law, including scrapping the 90-day trial period for new employees.”

– Radio NZ

Following comments claim that this clarifier is still quite ambiguous – more on this in the next post from the architect of the law.

UPDATE: Author of 90 Day Trials Wayne Mapp says that Little’s clarification is ambiguous – 90 Day Trial legislation author joins debate

Labour diversion #2 – they won’t ditch the 90 Day Trial

Labour have long criticised the 90 Day Trial employment legislation. Andrew Little has spoken strongly against it, as detailed by James at The Standard:

“”We don’t need the 90-day law and under Labour it will go.”
Source – https://www.labour.org.nz/media/90-day-law-sees-more-workers-shown-door

“Labour would, however, not back away from its plans to change employment law, including scrapping the 90-day trial period for new employees.”

– Radio NZ

“Later Little told reporters Labour still opposed the 90 day trial, which many small businesses liked …..”

– Interest.co.nz

So it surprised many when Andrew Little said that Labour would leave the 90 Day Trial legislation apart from tweaking it a bit.

Stuff reports: Labour would retain 90-day trial periods, but make them fairer – Little

Andrew Little appears to have made an about turn on labour law reform, ruling out abolishing the 90-day trial period for workers.

The Council of Trade Unions (CTU) has called on Labour to clarify its position and the Government is accusing Little of “weasel words”.

At a breakfast in Upper Hutt on Friday, Little was asked about Labour’s position on 90 day trial period, in which employers can dismiss workers.

“Our policy is to add a fairness requirement,” Little said.

The question frequently came up from employers, Little said, with every employer indicating they already gave feedback to any worker they let go, so they would not be affected under Labour’s policy.

“We just want to make a requirement to give feedback so the person knows whether they’re on track to make the grade or not.”

Asked afterwards if that meant that the trial periods would certainly stay, Little said: “Well we wouldn’t be talking about making the 90 day trial periods fairer if we were going to get rid of it.”

Any changes would not have a significant impact on employers, Little said.

“There won’t be any new onerous obligations in that regard, but it will make it fairer and we will write that into law.”

Helen Kelly was carefully critical:

CTU president Helen Kelly called for clarification.

“Making it fairer gets rid of it, right? He needs to clarify that,” Kelly said.

“We would expect them to effectively get rid of them by making unfair dismissals unlawful.”

Kelly said the 90-day trial periods allowed workers to be dismissed for reasons which would otherwise not be fair, without giving the worker the option of taking a personal grievance claim.

If Labour introduced “just cause” provisions to the trials to allow personal grievances, the CTU could accept that, as this returned to the earlier rules in existing laws covering probationary periods.

“But if what they’re saying is modifying [the trials] to simply allow unfair dismissal, but you’ve got to give reasons, then that certainly, as far as I’m aware, is totally against their [Labour’s] position in the past and would be unacceptable to us, totally unacceptable,” Kelly said.

Reaction wasn’t pretty from some at The Standard.

Charles:

This is pretty amazing. I thought there was no way they’d try to go right, because, well, they couldn’t. But no, no hurdle is too impossible, they are actually going to try to become the National Party while National still exist. I can imagine Key leaning over to Nathan Guy and saying, “They… they can see us here, right?”

So, let’s talk about the Green Party. hahaa

Rosie:

I know. Absolutely f-ing unbelievable.

I did not become a Labour Party member to support anti worker bullshit like the 90 day law.

Karen:

Please send this post (at 20.3) to Little, Rosie.

Everybody who is enraged at this needs to start lobbying now.

Etc.

And there’s flip-flop reaction from Young Labour and Young Nats:

Young Labour on Facebook:

We think the 90-day trial period is unfair, and it needs to go. Do you?

And on Twitter:

We are deeply concerned by ‘s comments that he will keep the 90-day trial period.

Meanwhile Young Nats were quick to respond:

Sometimes we end up agreeing on things and it isn’t so bad, .

Embedded image permalink

Labour have had a remarkable week.

And all may not be well inside.

Darien Fenton

Um : the policy says : “Labour will restore workers’ right to contest dismissals during the first 90 days of employment by abolishing the current government’s Fire At Will law” I think the ambiguity surrounding Andrew’s comments today are a PR problem that needs sorting quick smart.

90 day trial on The Standard

There were some interesting and perhaps suroprising discussions at The Standard on Andrew Little’s speech and the lack of a mention of 90 day trials given the Standard is a ‘labour left’ blog.

Gosman:

I suggest the 90 day trial is quite popular with small businesses. It will be interesting if Labour drops their objection to it.

McFlock:

Why would they?
The 90-day trial is only popular with incompetent employers. How many small business owners are incompetent, do you think?

Skinny:

There is enough antidotal evidence that has been gathered which points to the ‘fire at will legislation’ is not being used as prescribed (spun) or a cynic would say used to an advantage by a scumbag employer.

Expected responses, albeit with nothing provided to back up claims like “enough antidotal evidence “.

But another thread was less anti.

Undecided:

Interesting he mentioned removing the zero hour contracts which is a safe announcement but nothing about the 90 day bill

Colonial Rawshark:

Even though most will not use it, small/medium business owners generally like the 90 day right to fire, a lot.

Undecided:

I guess the question is does the positives of the 90 day bill outweigh the negatives

Colonial Rawshark:

All I know is there are too many people out there who can’t be bothered turning up to work on time, every day, day after day, in a fit to work state.

tricledown:

I know alot of small business owners with the same story workers not turning up turning up late turning up stoned or hung over not willing to do a fair days work with the minimum fuss.

Olwyn:

It is possible to give reasons for not keeping people on in those cases. The problem is not so much the 90 day trial period per se, but that no reason need be given for firing someone during that period. If no reason needs to be given, there is no room for dispute, which is what the employers like about it. However, it does leave room for bad faith employment practices.

There’s always ‘room for bad faith employment practices’ no matter what the legislation is. The key is whether there is a case that bad practices have significantly oncreased under 90 day trials, and whether that overweighs the benefit of encouiragung employers to take on more staff.

Karen:

Exactly Olwyn. The big problem with the 90 day rule is that it is open to abuse by employers. If someone is late, comes in stoned , doesn’t do their job properly then give them a warning. If the unacceptable behaviour continues in spite of warnings then the employer is perfectly entitled to sack them.
The “no reason required” 90 day rule means some employers who have no intention of providing a longterm job are able to mislead prospective employees taking on what are actually temporary positions..

This ‘no intention of providing a long term job’ is often brought up. That can be achieved easily without using the 90 day trial.

No evidence provided of how prevalent this might be (or if it happens at all), just a statement that it could happen.

Again this is all very mild discussion about 90 day trials.

Then ‘nadis’ joined the discussion:

As a small business owner, the 90 day rule is very beneficial. I’ve never used it, but I can see the attraction. Whats not recognised by many commentators is the risky nature of most small businesses which run on a week by week basis where meeting the payroll is often a close run thing, and so many small business owners have provided the family home as security.
When viewed through that prism – you can see the attractiveness of the 90 day policy. I’d love to see any stats on how many employees don’t get kept on – does anyone know a number?

If an employer has form in churning, then bring in a rule that takes away their 90 day right for a 2 year period. Define churn as something like more than 10% of employee hours over a financial year or something similar.

Also bring in a rule that says 90 day let go employees get cash compensation – 3 weeks pay or similar.

A couple of rules like that would retain the good for thee employer aspects of the 90 day rule while penalising bad behaviour.

I’d like to see what Little proposes in actuality for boosting SME’s. Some quick ideas:

– retain a 90 day rule though with some protections
– change the provisional tax system to a pay as you go based on monthly cashflow
– streamline the provisions around firing and redundancy, too many confusing areas. A clearer process would be good for both employers and employees
– don’t tax retained earnings for the first 3 years of a business’ life – just tax distributions.
– give businesses (say) 50% of the dole for 2 years when they take on an unemployed worker.
– incentivise businesses to invest in third party provided training

Forget subsidies and funding initiatives – they aren’t necessary and will get siphoned off by unproductive businesses who know how to play the system. A well executed business with proper governance and sound practices can get funding already.

A couple of mild responses only to that.

Another thread:

millsy:

I am actually thinking that Little will probably keep it.

Undecided:

If he keeps to the center and sticks with popular National policies then he’ll probably be the next pm of NZ

Party member and unionist Te Reo Putake:

Current LP policy is for removing the 90 day provision. I don’t see that changing, though I doubt Little is likely to promote the policy when talking to or about small business.

btw, the LP Policy Council has a few vacancies to be filled. I know of some very progressive candidates who are wanting to take the spots to help move the party in a better policy direction.

Hoping for a policiy move to the left.

Karen added:

RNZ are reporting Little confirming that the 90 day rule will be gone under a Labour government. Must have covered it in the Q&A session after the speech.

If Little said that it’s a bit odd as he has said that all party policies are up for review. There’s likely to be a lot of discussion within the party on the 90 day trial.

The result for then 90 day trial may depend on what sort of people are attracted to getting involved in Labour’s rebuilding and policy development.

It was surprising to see on a ‘labour left’ blog more support for the 90 day trial asnd only mild opposition.

A Little challenge on 90 day trial

Andrew Little’s ‘State of the Nation’ speech was big on employment ambition via small businesses but little on detail. He can be excused for being vague at this stage, but he and Labour face some tough decisions. One of those is on the 90 day trial put in place by National. The Labour left is ideologically opposed to it.

Hamish Rutherford at Stuff writes in Big on ambition, little on how to get there:

During last year’s election campaign trail, the 90-day trial legislation came up with frequency and passion usually reserved for socially progressive legislation.

In broad terms, it allows employers to terminate the contracts of employees if it is not working out.

Up and down the country it was repeatedly raised by voters. Support is far from universal, but among the audience Little appears to be pitching to, it is clearly strong.

For the tradesman or the cafe owner looking to take on their first, or even fiftieth employee, the trials are seen by many as cast iron insurance that a lazy worker will not be allowed to undermine their livelihood, even among many Labour-backing businesspeople.

Although core Labour supporters may have a natural aversion to a sweeping right to dismiss employees under almost any circumstances, the sheer number of small businesses means it is an issue that must be addressed by Labour in purely political terms, however difficult that may be.

The ‘labour left’ – union supporters – were instrumental in getting Little into the leadership role. They will be disappointed if there’s no pledge to scrap the 90 day trial. But middle New Zealand, where a lot of small business owners are, will be instrumental in rebuilding Labour’s lost vote share.

Labour might try a compromise, like reducing the trial period to 60 or 30 days. But that risks pleasing no one and/or disappointing everyone.

Amongst many others there will be more than a little challenge getting this one right.