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Home > EmploymentWorks! > Articles & Research > Most Vulnerable Won't Get Fair Go

Most vulnerable wont get fair go under work trial


5:30 AM Monday Sep 13, 2010

Dr Judy McGregor, Equal Employment Opportunities Commissioner for the Human Rights Commission.


New Zealand has a proud record in improving equal employment opportunities and therefore progressively realising economic, social and cultural rights under the International Covenant on Economic, Social and Cultural Rights and International Labour Organisation's core labour standards.

It also has a strong reputation for its commitment to the ILO-mandated Decent Work agenda. These are threatened by the proposed legislation to extend the 90-day trial period to all businesses and New Zealand risks regressing in terms of its commitment to, and the reality of, equal employment opportunities.

The proposed legislation, which allows an employer to dismiss staff without explanation, offends against natural justice, the presumption of the law in favour of procedural fairness, and a commitment to a fair go for employees. While the New Zealand courts have imported the rules of natural justice into the common law contract of employment since 1985, the proposed legislation, with its "fire-without-redress" measures, runs counter to this.

It is unusual for Parliament to take away rights, particularly such a fundamental right as the right of access to a hearing.

Denial of redress in something as basic as employment has profound human rights implications.

Recognition of the right for procedural fairness when dismissing an employee took time to develop. The recognition of that right by Parliament and by the courts should not be lightly swept aside given the paucity of evidence to support the proposal. To use the language of the New Zealand Bill of Rights Act, rights and freedoms should only be subject to reasonable limits that can be demonstrably justified in a free and democratic society. The proposal does not meet this test as there is insufficient evidence to demonstrably justify the measure.

Young people and other vulnerable groups such as Maori, Pacific and the disabled will be most at risk of being let go under the 90-day trial at a time when the unemployment rate for 15 to 19-year-olds is 24.7 per cent (37,800 people) and for 20 to 24-year-olds it is 13.7 per cent (30,400 people). They have had less time in the workplace to develop competencies and increase their employability. Many employers will not invest in staff development and training during the 90-day trial period.

There is no evidence the 90-day trial will increase employment. The Department of Labour's evaluation of the first year of operation of trial employment periods indicates it cannot be stated categorically that trial periods have created extra job opportunities. Internationally, trial-period legislation has increased hiring and firing but has had an unclear overall impact on employment. In the trial period few employers gave a chance to disadvantaged job-seekers.

The idea that the proposed legislation rests on contract and agreement and cannot be imposed on employees is unrealistic at a time of high unemployment and job scarcity. An employee, desperate for work, faced with a "take it or leave it" offer by an employer is in no position to negotiate "opting out" and has no real choice. Given that women historically have a poor history of negotiating their workplace conditions they are likely to be disadvantaged in such processes. This was noted in the first Employment Court decision on the 90-day trial period when Chief Judge Colgan stated that the plaintiff "was not about to jeopardise the security of her ongoing employment by resisting agreeing to such parts [of the employment agreement] as the trial provision".

The trial period extension to medium and large businesses reduces the imperative to have fair recruitment practices as good employers. Some will use it as a proxy for investment in effective human resource management. This is likely to impede the progress being made by a majority of medium to large New Zealand businesses in ensuring pre-employment processes are not discriminatory and in developing recruitment practices that acknowledge equal employment opportunities.

Not all employers are good employers and some will behave badly. Trial-period employees may feel compelled to work excessive hours, tolerate poor conditions, or perform functions that they were not hired for and are unacceptable, simply because they are "on trial" and want to keep their jobs.

The 90-day trial period will extend casualisation in New Zealand's labour market at a time of increased concern at the country's poor labour productivity. Further casualisation of the labour market will not address the critical issue of labour productivity, a point well made by an expert in this field, Professor Nigel Haworth of the University of Auckland's School of Business.

The 90-day trial period appears to be based on increased employer power and a view of employees as disposable assets. This runs counter to the conclusions of the commission's largest work-based project, the National Conversation about Work, which demonstrated that New Zealand's workplaces were overwhelmingly cultures based on trust, engagement and performance.

There was a genuine acceptance by employers and employees that decent work underpins a fair society.