Employment Relations Amendment Act “helps restore fairness to New Zealand workplaces”

The Employment Relations Amendment Act has passed into law, Minister Iain Lees-Galloway claims it will help “lift New Zealand into a high wage, high skill economy with thriving region”, but doesn’t explain how that will happen.

Restoring balance to the workplace

The passage into law of the Employment Relations Amendment Act helps restore fairness to New Zealand workplaces and restore fundamental rights for workers, says Workplace Relations and Safety Minister Iain Lees-Galloway.

“The Government is determined to lift New Zealand into a high wage, high skill economy with thriving regions. The Employment Relations Amendment Act is one piece of our plan to do this, by restoring a better workplace relations framework for New Zealand workers.

“The Act restores many of the conditions that existed during the previous Labour-led Government, at time when the economy enjoyed record-low unemployment and unprecedented economic growth.

He doesn’t mention the fact that New Zealand was heading into recession at the end of the tenure of the previous Labour-led Government.

Nor does he mention that New Zealand survived the Global Financial Crisis and the economy recovered to a state of thriving when the current Labour-led Government took over – this revival happened under the conditions that the Government has now repealed.

“The Coalition Government believes everyone deserves a fair day’s pay for a fair day’s work. This Act helps achieve that by bringing back protections for workers, especially vulnerable workers, and strengthening the role of collective bargaining.” 

The key changes under the Employment Relations Amendment Act include:

  • reinstating prescribed meal and rest breaks
  • strengthening collective bargaining and union rights
  • restoring protections for vulnerable workers, such as those in the cleaning and catering industries, regardless of the size of their employer
  • limiting 90-day trials to business with fewer than 20 employees. 

“These are fair and familiar protections that strike the right balance for employers and workers, and mainly restores worker protections which were in place as recently as 2015,” says Iain Lees-Galloway.

The majority of the provisions in the Act will come into force on Monday 6 May 2019. Further information on the changes will be available at www.employment.govt.nz.

NZ First moderated the changes, insisting on the 90 day trials remain for small businesses.

Newshub: 90-day trials scrapped for medium, large firms

Small businesses get to keep the trial period thanks to New Zealand First, Prime Minister Jacinda Ardern said in January.

National called the Act “one of this Government’s biggest economic mistakes” and said it would repeal it, should it win the 2020 election.

“The cumulative impact of changes to workplace relations in this Bill will choke economic growth, further hurt business confidence, stifle job opportunities for vulnerable employees, return us to 1970s-style adversarial union activity and be bad for employees and employers,” said workplace relations spokesperson Scott Simpson.

“It seeks to grow trade union membership and influence, and reinforces the political, historic and financial relationships between the union movement and the NZ Labour Party.”

Unions are happy, but want more.

Council of Trade Unions: Victory for working people in New Zealand

The Council of Trade Unions Secretary Sam Huggard says that tonight’s passing of the Employment Relations Amendment Bill will be a victory for working people over an expensive lobbying campaign run by big business. “This law allows Kiwis to access their basic rights at work, to make more informed choices about their employment, and help each other get a fairer deal,” he said.

We congratulate the Coalition Government for helping working people get ahead and win some decency at work with this law. We look forward to further progress soon, including women in paid work being able to access equal pay, and Fair Pay Agreements for our vulnerable Kiwi industries.”

Tertiary Education Union:  Changes to employment law are a first step

“MPs took a step forward this week, which is welcome. However we are still a long way from the changes we need to ensure New Zealand is country that protects and enhances the right of people to come together to make their workplaces safe, rewarding, and fulfilling places to be,” Sharn Riggs, TEU national secretary said.

Decisions made by successive governments over recent decades have made it harder and harder for working people to come together to address issues like low wages, inadequate meal breaks, and a lack of protection from arbitrary dismissal within their first 90 days of employment. National in particular made it more difficult for people to access help and advice from their union.

They would obviously like more from a Labour-led government, but with NZ First having a say this may be the limit of what unions will get this term.

Opposition remains to TPP

While Jacinda Ardern is happy with progress made with the now renamed CPTPP trade agreement that continued to be negotiated parallel to the APEC, but opponents in New Zealand remain opponents. This is no surprise.

Vernon Small:  Jacinda Ardern passes Apec summit test

Now it is back on track – albeit now delayed until the next time leaders can gather – and Ardern has set New Zealand up to sign the agreement formally known as the Trans-Pacific Partnership.

It transmogrified into the TPP-11 when President Donald Trump pulled the United States out in favour of bilateral trade deals – where New Zealand is vanishing far down the queue.

Perhaps fearing a countdown – TPP-10, 9, 8 – and apparently at the request of Canada, it has emerged from the crystalised emphasising its comprehensiveness and progressiveness.

It might be near unpronounceable as the CPTPP (Comprehensive and Progressive Agreement for the Trans-Pacific Partnership), and loom on paper like an abbreviation of something from the former Soviet Union, but apparently the rebranding will help Trudeau sell it to his voters.

Signing the deal, but with some victories, would have been one of Ardern’s key aims. Not being blamed for its failure was probably another.

Critics in New Zealand were wishing for it to fail, but to no avail.

So it is no surprise her team have pushed hard to the media both messages; that any hold-ups are not of New Zealand’s making and that there have been significant wins on investor- state disputes settlement (ISDS) clauses. A “damned sight better” than it was, Ardern stressed as her crafted sound bite.

The TPP’s opponents at home have labelled it spin and are clearly disappointed Labour’s strong rhetoric did not see it reject the deal in its entirety.

Some aspects of the ISDS clauses have been narrowed and those “suspensions” have been put on ice, pending a possible US return.

In theory, New Zealand could veto them returning if the US insisted on the resurrection of the ISDS clauses and if our Government was prepared to stare down a post-Trump US and the other 10 CPTPP nations.

The incoming Government has managed to brush some fleas off the clauses, which Ardern called “a dog”, but she will be hoping the shift against them internationally will continue and that they will stay impounded when they are reviewed in three years time.

Ardern says it is now “a damn sight better than what we had when we started” and obviously wants it to happen. Not so the TPP opponents.

RNZ: TPP critics unmoved by new negotiation wins

The Council of Trade Unions (CTU) is still opposed to the Trans Pacific Partnership, despite the government claiming significant wins at the talks at APEC.

CTU secretary Sam Huggard said the agreement was still not good enough on labour laws or transparency.

He said he was keen to talk to the government about negotiating different types of trade deals in the future.

“Certainly the New Zealand Council of Trade Unions has shown a strong interest in its opposition to the TPPA for some years now, and that will continue.

“I guess what we’d like to do though is be part of a conversation with government about what a better agenda for trade could look like for working people.”

He said the TPP was structurally biased towards the commercial sector and downplayed issues such as health, safety and human rights.

And Jane Kelsey is also unsurprisingly still opposed – there is less chance of her supporting the TPP than there is of John Key making a political comeback or Andrew Little taking back the Labour leadership from Ardern.

On Saturday when there appeared to be a hiccup in the TPP negotiations Kelsey tried to start a campaign to pressure Canadian PM Justin Trudeau to ditch the deal: Help kill TPPA today by tweeting PM Trudeau

It’s not over yet. I don’t want to jump the gun. There will be more attempts to pull it off today.

The Japanese PM Abe is now trying to pressure Canada to finalise the agreement whilst they are in Vietnam. Can you please help us in tweeting PM Trudeau, Canadian Trade Minister and the Canadian Foreign Minister.

Canada refused to sign on at the last minute due to concerns around labour rights, Indigenous rights, cultural issues and gender equality.

Asking them to maintain their position on the #TPP and put culture, indigenous rights, women’s rights, and labour rights ahead of corporate interests.

That failed. Kelsey also posted yesterday: Labour largely endorses National’s TPPA, but it’s not all over. What now?

The bad news is that the Labour government has endorsed the Trans-Pacific Partnership Agreement, with the suspension of a limited range of items, at the ministerial and leaders’ meetings in Da Nang, Viet Nam.

The ministerial statement released by the TPPA-11 has a catchy new branding for the deal: the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP).  No easy slogans there! But isn’t it interesting how something so toxic can simply be relabelled ‘progressive’?

I suspect Kelsey would see any sort of trade deal as toxic.

So, what happens now? There is no timeline for the next meeting of the CPTPP parties. That means there is now time for the new government to conduct in-depth consultations over its proposal to adopt the deal. It also needs to commission the robust analysis that Labour called for in opposition, independent of MFAT and consultants like the NZIER who basically rubber stamped the previous shonky modelling.

They need to make sure it uses realistic models that also cover the broader economic implications, especially for jobs and income distribution. If the economics don’t stack up, as Labour said they didn’t with the original TPPA-12, then they have no basis for arguing that the CPTPP should proceed.

Their independent review also needs to include non-economic impacts on environment, health, human rights and the Treaty of Waitangi.

But before it does that work to advance a deal they previously refused to ratify, the new government needs to give priority to its proposed full and participatory review of trade policy. All existing and future negotiations must be frozen until that is done.

As far as Kelsey is concerned it needs to be her way or no way.

However both Labour and National support the CPTPP largely as it is – that’s 102 seats out of the 120 in Parliament.

Minister of Trade David Parker is speaking on RNZ now, dismissing Kelsey’s criticisms.

Concerns and opposition dominate at The Standard: The TPP11 negotiations: ISDS provisions are gone – almost

Holiday legislation is too complicated

Businesses are still complaining about the complexities of the 2003 Holidays Act, with good reason.

The Act was well intentioned and is fine for employees with regular work patterns, but it can be horrible dealing people who have variable or changed work patterns and payments.

Attempts have been made to address the obvious shortcomings but the National led government put it in the too hard basket, ridiculous for a party that claims to support businesses.

RNZ: Holiday legislation ‘too complicated’

A survey from the law firm Simpson Grierson found nine out of 10 firms placed simplifying the Act at the top of their employment wishlist.

That doesn’t surprise me. I deal with a number of companies running payrolls and holiday payments and accruals are major causes of confusion and difficulties.

David Jenkins from the Payroll Practitioners Association said the legislation was messy, and hard for employers to get their heads around.

“The only way to be compliant with the Act is to constantly watch, monitor and change settings in your payroll system. It’s way over the top in regards to compliance.”

Employers’ main concern is how the Act calculates annual leave, public holidays, sick days, and bereavement leave.

With the rise of part-time and casual work, they say the Act makes it near-impossible to accurately figure out how much workers are owed when they take leave.

It isn’t impossible but it can be very difficult, and it can also come up with some ridiculous calculations, especially with holiday pay.

David Jenkins said there was a lack of clarity, and the legislation – which should help employers – actually hindered them.

The provision in the Act for four weeks holiday after 12 months continuous employment was straightforward for those who work the same hours every week, he said. “But as soon as I get someone that works different hours week after week, when they get to 12 months you get four weeks of…what? That’s the problem – the Act can’t help you define what a week is.”

Some employees don’t work some weeks, and work anywhere from a day to seven days a week at other times. If they take a week holiday how many days should they be paid for?

It’s worse if they take a day off, and some awards and employments allow them to take part days or hours off, and that can be diabolical trying to work out what to pay them.

It’s not just small businesses that have had problems.

Since 2012, the Labour Inspectorate has been investigating some of the country’s biggest employers to make sure they’re complying with the Act.

Of the 118 completed investigations, 37 organisations – about a third – have had to pay arrears, to the tune of at least $43 million.

Prior to that I complained to a major employer who was not calculating holidays correctly, and they had a lawyer supporting their position.

But Council of Trade Unions’ president Richard Wagstaff said it employers should figure out their obligations rather than complain the legislation was flawed.

“The big problem here is the fact that employers haven’t done enough to apply the current Act, and to quickly call for a change to that when they know they’ve been caught short doesn’t seem right to us.”

Wagstaff is either way out of touch, or is deliberately trying to play down the problems.

If calculated ‘correctly’ employees with variable work patterns can be advantaged as they get the highest of two calculations. One of those calculations is their last 4 week average pay rate.

If, for example, an employee works an average of say 10 hours a week for most of the year, then works 40 hours a week for a few weeks over Christmas, the timing of when they take holidays can make a big difference to the calculation.

The holiday pay law is definitely an ass, and this became apparent fairly quickly after it came into force in 2004. Businesses still have trouble with it, because in some situations it is unworkable.

Governments since then have ignored numerous pleas to fix it. That is a disgraceful abrogation of responsibility.

There is a reason people keep complaining about the act – in some respects it is crap.

Helen Kelly right and wrong on Gilmore

Helen Kelly has added to the growing criticisms of Aaron Gilmore – Unions call for Gilmore to resign

New Zealand Council of Trade Unions president Helen Kelly said Gilmore’s behaviour toward the waiter demonstrated his ”completely unacceptable attitude”.

Gilmore had abused a position of power, she said, and shown an ”absolute disregard for the law, and the respect for working people”.

He had also not considered the impact the ordeal would have on the waiter and his livelihood, she said.

”You put yourself in this young person’s position and that’s a very very difficult position to be in.

”In a place like Hanmer where employment is not plentiful it’s a huge threat.”

Kelly believed Gilmore should face serious consequences for his actions.

So far Kelly is right.

”If he won’t resign I think they should kick him out,” she said.

No, Gilmore is a list MP and can’t be kicked out,. That’s why Brendon Horan remains an MP despite Winston’s disapproval of him.

”This issue raises questions on the nature of the National Party.”

Not really, no more than Kelly getting involved in petty political pointscoring would raise questions about the nature of the Council of Trade Unions.

This is clearly the actions of one MP who wouldn’t have been returned to Parliament if Kelly’s Labour Party hadn’t done so badly in the last election.

Whether Gilmore resigns or not his political future looks short. Colin Espiner explains:

There isn’t an awful lot Key can do to Gilmore in the short term, given he has no portfolios to be stripped of and no real responsibility for anything besides his account at Bellamy’s. The Heritage Hotel has said it is unlikely to file a complaint that could trigger disciplinary procedures against him.

But list MPs live or die by the party’s favour, and Gilmore shouldn’t expect a particularly high list ranking next year.

National are most likley going to have less MPs after the election next year anyway, and if Gilmore makes it onto the list it sounds like it will be too low to make the cut.

In 2011 Gilmore was the lowest ranked sitting MP on National’s list at 53.