National's 2008 Industrial Relations Policy. A return to the Employment Contracts Act?

Well National, in acknowledgment of its potential unpopularity, has with little fanfare, released its industrial relations policy. Predictably, they're trying to paint it as moderate by equating it with the current "Employment Relations Act", but a closer look reveals that this is far from the case.

As a policy statement it's very bare bones (another of their "one page wonders"), and the devil of course would be in the detail of the eventual legislation.

It does however contain several noteworthy features:

1) Ostensibly the worst aspects of the Probationary Employment Bill have been done away with (mediation is to be available to workers who have been unlawfully treated).

However, it's difficult to say just how useful mediation would be under this proposed regime.

For instance:

During the trial period, either party may terminate the employment relationship for performance without a personal grievance claim being brought.

So a worker may be ostensibly fired for "under performance", but because there is no requirement for due process (official written warnings, based on valid reasons like persistent lateness), an employee may be fired for having the wrong sexuality, the wrong religion, the wrong fashion sense, or refusing to carry out unpaid overtime or unsafe tasks. There will, in practice, be no protection against arbitrary dismissal.

In a recent post I showed that this aspect of the Nat's IR policy will mostly impact on the poorest and most vulnerable workers. I also explained how the lack of enforceable employment rights would lead to "downward wage pressure" for the same workers who were hammered last time National were in power.

2) National will allow union access to workplaces with an employer's consent, which cannot be unreasonably withheld.

This is where the detail will really count, as a union's access to a workplace, will be entirely dependant on what National defines as "unreasonably withheld". My bet is that, in practice, an employer would be able to deny unions access under the flimsiest of pretexts (i.e. Employment Contracts Act 1990s). This of course is aimed at making it harder for workers to improve their wages and conditions of employment through organising collectively. The net result will be lower wages and higher profits for foreign businesses - which will mean more of New Zealand's wealth disappearing overseas.

3) Restore workers' rights to bargain collectively without having to belong to a union.

This will mean a return to the bargaining arrangements of the 1990s - where an employer could arrange a lawyer (or another representative) to draw up a collective agreement. Here's an extract from my thesis which show's what this meant, and may mean in practice:

that the trade union role in negotiating employment contracts was not recognised with no provisions for the registration of unions as the legitimate representatives of workers (Deeks et al., 1994: 100). As such employers weren’t required to bargain with their employee’s union if they chose not to. Employers were able to appoint independent representatives such as lawyers, as bargaining agents for employees, and there were many instances where employers would just pressure employees into revoking the authorisation of their chosen representatives by way of a lockout (Danin, 1997: 202). Furthermore, an employer could legally prohibit a barging agent from seeking authorisation to represent any employee through disallowing them access to the workplace (Danin, 1997: 222). Also, unless the employer allowed it, unions weren’t able to enter workplaces in order to police the contract, so being a member of a union simply became pointless for many employees (Dannin, 1997: 223).

So in practice this will likely mean that employers will be able to force employees to accept the terms of employment drawn up by a representative of their choosing.

4) Require the Employment Relations Authority to act judicially in accordance with the principles of natural justice, including the right to be heard, and the right to cross examine before an impartial referee.

National wants to turn the Employment Relations Authority into an expensive, lawyer driven court, making it harder for employees to have their rights enforced, and easier for employers to deny the rights of workers through a war of financial attrition. The provision which will ....

Allow injunctions and important legal questions to be heard in the first instance in the Employment Court, and allow a general right of appeal to the Court of Appeal....

.....will have the same effect. It was this expensive, lawyer-driven approach to dispute resolution which meant that only half as many employment disputes were received and disposed of every year during the late 1990s compared to now. So in practice this will mean that employment rights become a privilege of the wealthy.

The Standard covers the rest of this issue excellently (as usual) and Jafa Pete has also completed a comprehensive analysis.