Written By: - Date published: 4:13 pm, July 7th, 2008 - 94 comments
Categories: national, same old national, workers' rights -
Tags: 90 day bill
In perhaps the most unsurprising announcement of the year, National has let slip it’s going to maintain its 90 day no rights policy, which basically means your boss can sack you for whatever reason he likes within the first 90 days of your employment.
Don’t be fooled by the spin there’s already a provision for probationary employment in the law provided there is a fair process. National simply wants to remove the fair process.
They’ve softened it a little
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there are going to be some safety mechanisms to ‘prevent exploitation’, but as usual there’s nothing on their website outlining what this would mean in practice or how a sacked minimum wage worker would enforce their rights.
It’s also been restricted to small businesses with fewer than 20 staff, which are ironically some of the worst employers and where workplace protections are needed the most. This would also apply to seemingly large employers like Subway, whose smaller individual franchisees would be free for example to sack an autistic worker for taking a sip of a free cup of coke. I guess that’s what National means when they talk about ‘giving opportunities to those at the margins of the labour market’.
It must be remembered that while all you hear from National these days is criticisms about how hard it is for average Kiwis to buy cheese and pay for petrol, the one workplace policy they’ve come out with would make it harder for workers to improve their pay.
We tried this path before and for most workers it meant wages failed to keep up with the cost of living because their rights at work had been stripped away from them. The result was our low wage economy, our lagging productivity and the opening up of the 30% wage gap with Australia. I’d be interested to hear why National thinks it would be any different this time.
Word is the Nats are going to release some more workplace relations policy over the next couple of weeks while Parliament is in recess. If the past is anything to go by they’ll be nothing more than bullet points filled with say-nothing words like ‘flexibility’ and ‘choice’. Call me old-fashioned, but I think working people deserve a little better than that.
[Oh and for anyone tempted to whinge about the personal grievance 'gravy train' have a read of this DoL report (PDF). Turns out it's a myth.]
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What? Burt? We’ve been through this before you say? Well you were obviously not listening – I don’t frequent fast food outlets for a variety of reasons. Not least their treatment of staff. But if you think anything can be solved by shopping then you’re kidding yourself. I know you can’t bear the thought of it Burt but the answer to this kind of employer behaviour is good old fashioned work rights. I assume you have kids from comments you’ve made in the past. Would you be happy for them to be treated like the fast food workers I’ve described? Would you be pleased to know they had no legal redress? ‘Cos it’s pretty hard to stand up for your rights when you don’t have any…
Oh and burt? What makes you think I haven’t protested outside of fast food stores? And having done so why should I not also highlight the situation many Fast Food workers face on the standard? Jeez bro – we don’t all confine our activism to the web…
Robinsod. Telling absolute fuckwits to “fuck off” is one thing, people like burt who merely agree with you another. It’s your blog, but things like that leave a bitter taste in my mouth.
Burt, I’d rather change the law. Boycotts are pretty ineffective unless the people doing it have enough monetary power to withdraw – the first were community led rent strikes, and worked because they crippled the landlords.
Lew
I did read that, I don’t see how you say it creates a ‘rolling 89 day’ employment situation.
I also noticed we are one of only 2 countries in the OECD that don’t have this provision and that 3 months is the most common length of time. I also noted that the duration of the probation could be mutually agreed between the parties for a shorter term. Perhaps if the job has a two day ‘up to speed’ cycle then the period could be one week. Surely it’s up to the unions to help sort this out. I’m sure they know how to work with this, it’s the norm in the OECD countries.
I find it interesting that the majority of the objections to this policy seem to be based on a fear of what might happen, but offer no substantial backing for that position. Smacks of a fear of the big bad bogeyman employer more than anything else (reds under the bed anyone?). The current system has been described within as “cumbersome” which is a fairly charitable description. More like unworkable, but thats ok I suspect, as the only measure really required is fairness to the employee, good or bad…right….
Billy – Ok, so human rights act would protect against overt discrimination, but what about slightly more covert discrimination?
In any event, I’m abandoning my “dismissal by a petty boss” objection in favour of the much stronger arguments made by others here on the potential for abuse as a matter of procedure.
—
David – What? First off, it’s not unworkable, clearly. As to fear of what might happen – why would you remove a protection against something that might happen? I’m not convinced the cost is significant. Do you refuse to wear a seatbelt on the basis that you only might crash? Do you get vaccinated against measels? Afterall, you might not catch it.
Risk = Probability * consequence.
Consequence – vulnerable workers getting screwed over without recourse
Probability – given the arguments expressed above and the past history of some of the employers in question, I’d say reasonably high.
Result? Keep the protection, might’s and all
Steve P: I think you are diddling the stats; fine form as per usual.
Doesn’t wash. 16% overall increase does not mean squat in real terms. Our population has increased and unemployment has decreased; so overall output has increased. Our productivity per hour however has been all over the place.
Change(%)
Year GDP/Hour
1996 0.7
1.7
0.8
2.9
0.9
1.8
1.7
1.3
-0.5
0.2
2006 1.1
Source: OECD. No stats available for 2007 yet.
Protecting slack lazy wankers who think everything should be handed on a silver platter does no one any favours. Small business should be able to drop these type of workers as soon as it becomes apparent the worker is a lay about. By not allowing small business this right; it impacts harder working more productive staff because too much productivity and money is lost on the fuckwits. It prevents wage rises for those who deserve them.
Due process can take 2-6 months and cost a small business thousands of dollars. One mistake and they get screwed by the employment court or are forced to settle out of court. Been there, done that. The employee can make many more than one mistake and can cripple a small business.
Complaints about dropping wages shows a complete lack of understanding of the small business model this proposed change is targeted at. We can’t raise wages if we have slack and unproductive staff. New Zealand can’t climb the ranking of productivity and become a rich country again until our workforce become more productive.
Why do people insist on protecting laziness. It is not hard to work at an acceptable and productive level. If you work hard, have a good work ethic and have even half a brain you are safe.
Yeah, there are *some* bad employers who will take advantage of this; but wake up – they already get around labour laws. The rest of us employers who treat out staff well are the ones that get screwed.
The OECD countries that far exceed our productivity output all have better wages and probationary periods. So the argument that it will hurt NZ workers is a crock of shit.
It may need tweaking; for instance a formal termination meeting or independent arbitrator. Still cost a lot less than taking months to go through due process and wipe the lazy buggers arse. Mean while they are hurting the business and affecting overall morale.
In my experience; a bad employee is usually a lazy employee, and their attitude generally sucks. This can’t be picked up in an interview, and if it is their first job; references wont help.
["16% overall increase does not mean squat in real terms. Our population has increased and unemployment has decreased; so overall output has increased. Our productivity per hour however has been all over the place." - you don't understand what the productivity statistic measures. It's not overall output, it's output per hour of labour input that has increased 16% since 1999 (and that's after inflation, of course) SP]
George – it’s not my blog. My blog is a much more robust affair and can be found here: http://www.robinsod.wordpress.com
Oh and me and Burt go back a long way – he’d be most disappointed if I didn’t tell him to f*ck off at least once in a thread!
David – I have substantial evidence of how the current law is abused and have written about it up the thread. I can’t see how removing rights could do anything other than exacerbate the situation…
Karl – if I had a wanker like you for a boss I wouldn’t work too hard either. Given your attitude here I can only imagine how poorly you manage staff. Perhaps you need to exercise the freedom to fail. If only for the poor bastards yet to cross your path…
Its pretty obvious that none of you have ever run your own small business (a successful one that is). For a small company, even one bad apple can be financially crippling.
I went and read your blog once Robinsod – it was absolute pants mate. Amateur presentation and the writing looked like it was done by a 14 year old kid. Don’t give up your day job pal.
Karl – I agree you should be allowed to get rid of lazy people. However, I think you should also be required to (if requested) illustrate why you think they’re lazy, and demonstrate that you tried something (perhaps saying “oi, stop being lazy”) to get them to be unlazy.
If you’re not prepared to make that effort to allow those employees who AREN’T lazy the right to fair treatment then I don’t think you’re in any position to call others lazy.
Highly likely the system requires some tweaks. National isn’t proposing tweaking, it’s proposing abandonment.
Karl: “Yeah, there are *some* bad employers who will take advantage of this; but wake up – they already get around labour laws.”
Yes, and currently those employers are (occasionally) taken to task for those breaches, which has a normative effect on the overall treatment of staff. Once they’re able to act with impunity that normative effect disappears.
I hire a lot of people, and yes, I agree that it’s a difficult pain in the arse to get rid of crappy staff. The solution is having strong workplace policies – firm expectations, good disciplinary structures, good communication between management and staff and owners. Currently there already exist provisions to hire staff on casual contracts, which effectively gives an employer the right to roster staff for 0 hours per week, effectively dismissing them. however, the advantage cuts both ways: a casual employee has the right to turn down work with impunity. This is as it should be: employers’ and employees’ rights at equilibrium, forcing both to exercise goodwill.
burt: If Mapp didn’t intend the bill to result in 89-day rolling contracts, why didn’t he explicitly prevent such contracts in his bill? Legalese to the effect of `after 90 days of continuous employment, an employee must be offered permanent status if a job exists for them and their work is satisfactory’? As written the bill does not prevent employers from enforcing rolling 89-day contracts, so why would they not avail themselves of this facility where it provides them an advantage?
L
Robinsod; you are pretty clueless in this respec.
1. complete flexi-time as long as work is getting done
2. unlimited sick leave
3. own, spouse and children’s b/days off (or other agreed day)
4. 2.5% training budget per annum (not required to be a work related course. All skills are valuable)
5. if appropriate – free broadband at home
6. fully subsidised health insurance
7. regular reviews – input into processes – they are doing the work – they should be listened to
8. ongoing trust through responsibility (and associated remuneration)
9. non-monitored use of internet at work
10. a “reasonable” approach to taking time off for religious holidays – e.g. Hanukkah Ramadan
So sorry – if consider that to be a wanker; you are someone I would never consider hiring.
I can even show you the employment agreement we use.
If, under the current law, it is “to scary for small businesses to hire people” or words to that effect, is unemployment at an historic low?
http://www.stuff.co.nz/0a17217.html
For shame Mike – you couldn’t have made it a RIGHT turn?
Otherwise gold star. The “I just think it’s time for a change” thinking is possibly the laziest ever.
Karl – I think the contractual rights you describe above are excellent. I doubt that you’re the type of employer employees need protection from. I’m not the kind of person we have laws against rape to protect women from, but I’m still glad we have laws against rape.
Laws like this are there for when good faith leaves.
I think what should be changed is the rhetoric on the topic – Small business owners quite often seem to be demonised when, as usual, it’s a minority who offend.
That’d piss me off. I think it’d be much better to acknowledge that most small business owners are nice people, like pretty much everyone else in the country. Divisive politics only screw everyone. I doubt the nice employers have any more time for the bad employers than anyone else. If the bad ones had their peers cursing them as well rather than drawing together in common cause against persecution it’d be a lot better.
T-rex: “Small business owners quite often seem to be demonised when, as usual, it’s a minority who offend.”
Absolutely right. I think it needs to be made clear that laws aren’t so much intended to keep reasonable people reasonable as they are for preventing unreasonable people from taking the piss.
KR: Given your obviously excellent workplace relations, how is it that you as an employer would benefit from this scheme?
L
Hay Karl! Where do I sign up?
Lew:
Here is a story; from one of my businesses. I won’t mention the guy’s name; but he will know I am talking about him if he reads this.
I hired a sales man for a start-up I am running. His job was to build brand and market and of course bring in sales.
I found out he was not really doing much; in fact when asked for call sheets and various other matters; he produced something that looked like he had chucked them together that morning.
He presented himself as a person who was good at what he did; his references “checked out”; all from overseas. But he just did not deliver and was fundamentally lazy and expected it all before he had delivered anything.
After eight months he still hadn’t made any sales so the company pretty much ran out of money a few months later because we were completely behind the eight ball.
To cut a long story short – due process took 2 months starting around month 6 when it became so apparent he was not doing his job I had no alternative but to start due process. And I made a single mistake and he walked away close to $12,000; as well as his salary and “expenses” and as part of his package was share I had to buy them back at face value not the actually value of the company.
I acted in good faith and had a fellow shareholder at the meeting. He brought an employment lawyer who documented the mistake that sunk us.
The thing is; it was obvious I had made a bad call on this guy very early on and I should have basically got rid of him around month 2 or 3. However I was too concerned about due process and delayed longer than I should have. The “It will get better; he’s just finding his feet.” mantra of most small business owners. But it never did.
That is why I think the rules for the probation period need to change. Maybe a strict criteria for a single warning without full due process. e.g. “You are not providing the services to the company that you said you were capable of providing. You have 10 days to rectify it.”
We aren’t even allowed to say “If you don’t improve your performance; you will not have a job.” Why? Because it might be construed that the employer has already made up their mind and the employee can lay a grievance that the employer never intended on giving them a chance.
You have to say “If you don’t improve [specific thing]; it may result in your employment being terminated.” If they do something different to the [specific thing] you have to provide another warning for that.
I am still running the business; but also had to make another staff member redundant. It is now “bootstrapping” in the hopes it can get that first sale to make it fly.
The people who invested in this were fiends and family. None of them “rich”; and for most this was their first adventure into small business. I suspect that it will be their last.
KR: Ok. The question is: is it worth the significant expense and hassle of this rare situation to allow the employers of tens of thousands of poorly-paid employees to dismiss them or keep them on rolling contracts on stagnant wages more or less in perpetuity?
Sure; it’s worth it to you in an immediate sense; you’ve been burned and don’t want to be burned again. But looking larger than that – is it worth it in the long term? To the economy? For the social health of NZ?
L
Steve: Thanks for the new link, it works now.
“Burt, seeing conspiracies where there are none is a sure sign of paranoia.”
There is an old saying, “Just because you are paranoid doesn’t mean they are not out to get you “.
The problem is it’s not rare. I have worked with small business for 15 years now; probably been into close to 200 businesses in that time. In almost all cases the business owner has had a horror story about trying to get rid of a bad apple.
Karl – That is precisely the kind of situation that should be changed. The question is how to change it without putting the employees Lew refers to at risk.
Clean up the legislation, remove the loopholes for whingers and bludgers. But don’t unduly compromise protection for the vulnerable.
The advantage you have with good workplace relations is that, over time, you’ll attract and retain good staff.
Lew: the rolling 89-day contract you mention would indeed be a worry if it were to eventuate. However I’d say it would be unlikely. In order to exploit the probational employment period in this manner one would have to fire the worker on day 90 (or 89), calculate and dispense final pay and PAYE, leave entitlement, etc, then re-hire them the next day. If any of this wasn’t done correctly then the employer would be in trouble.
A simple ‘rolling contract’ without the fire/hire would be deemed continuous employment. In any case I suspect that this type of obvious abuse could be handled in law without too much complication.
How about taking a step back and looking at the wider effects (NZ-wide employment). Do you think it would result in small businesses taking on more or less employees on average?
Karl:
Yeah and I can give you chapter and verse. I used to run factories and other businesses (and a lot of the family still does).
On the other hand I can also point you in the direction of many arsehole employers that I’ve worked for or whom friends and family have worked for. Billy ascribed the traditional economic motive to employers. Most managers do operate in a manner that is consistent with that. However there are always the jumped up little dickheads who do not operate in any rational way. If you happen to run across one of them, where they do not have strong constraints, then anything can happen.
If you want looser worker rights, then the penalties for being an arsehole manager should be made MUCH more severe. Say, just for instance, mandatory execution for a conviction in the employment court. Then at least they will think twice
After having a couple in my working career, I really dislike lousy managers. Since I come from a management family, I’d be really interested in having their bad habits removed from the genepool.
But readers here will have already noticed my draconian tendencies.
To add to the debate, I know a couple living in Australia, both in reasonably skilled jobs. They went to buy their first home and during their mortgage application discovered that only one of them was eligible because the other was on probation in a new job. So imagine if both of them were on probation. Is National proposing to make it even harder for young people to get into their first homes?
Most underperforming workers would consider receiving a written warning enough of a shock to inspire them to lift their game.
Great idea – so long as it applies both ways. That’ll also make people think twice before making frivolous claims.
One employment story I recall from a long standing small business operator (in the family, and no, never had a negative judgement) was the employment court judge (or whatever they are called) warning the employee that he wished he could make her pay for the trouble she had caused in making her claim. Unfortunately it is always at the employers expense.
Perhaps I’m just lucky but I have never had an asshole employer in 25 years of employment; including 5 years of varied service/labour jobs (retail, warehouse, supermarket, bar, restaurant, gorse spraying, drilling, etc)
I have experienced plenty of “bad apple” co-workers though. One even prompting my first 111 call.