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