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.

What now for Labour and Little?

The Labour Party and Andrew Little are in a difficult position – partly due to National’s strengths and the Northland opportunity that Winston Peters whipped out from under their feet, but made substantially worse by their own efforts which at times border on abysmal.

Peters outmanoeuvred Labour in the Northland by-election, but Labour and Little compounded the problems by rolling over and opted out of Opposition leadership.

National have outmanoeuvred Labour with their policies announced in last week’s budget.

Again Labour and Little compounded the problems with an awful response – the criticisms have come from everywhere, most notably (and widely) from the left.

So what now for Labour and Little?

Changing leader again shouldn’t be an option. They are onto their fourth leader since Helen Clark. Labour’s problems are wider and deeper than at the top. Getting a new leader seems to just repeat the same mistakes.

So the time has come for Andrew Little to show whether he the ability to become a leader. He showed some raw glimpses of this capability last year when he took over but this year so far looks like an accumulating train wreck for him.

One of Little’s biggest problems is that he seems to have been taken over by a Labour remodelling committee and has become no more than a puppet – with incompetent string pullers. Really, it’s starting to look that bad. Little’s budget speech last week was awful.

David Shearer in particular – remember him? He was three leaders ago. David Shearer in particular seemed to follow the same path as Little – initial raw promise of being something different but quickly becoming a bumbling follower of foolish strategy.

David Cunliffe did similar but he also had inherent problems that put off voters.

So can Little recognise the problems and rise above them and become a leader of Labour rather than languish as a limp Labour lackey?

It looks like Little needs some fresh advice from outside the waning whining party mindset.

And he needs to lead. Become himself at the head of the party, look like himself.

The only way Labour will look better than National is by looking better than National. They are a long way from this.

They seem to have resigned themselves to trying to make National worse – which they have overdone incessantly for the last seven years with no success.

And they seem to have resigned themselves to trying to fool voters into thinking that they can somehow look better despite relying on either NZ First or Greens (or both) to take them over the line.

One major problem with this is that Russel Norman and Winston Peters have both looked stronger opposition leaders than the procession of Labour attempts.

Their situation looks as dire as it has during the post-Clark era.

The Labour Party badly needs to reinvent itself and look like a competent alternative. Their recent track record is of repeat failures.

Andrew Little has to step up and present himself as a leader and carry a revitalised Labour with him. This year he seems to have taken the opposite approach.

So can Little reverse his slump? If he’s learned lessons he could, he has time to do it but he really needs to come alive and lead soon.

If that’s possible.