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90 Day No Rights policy, why?

Written By: - Date published: 4:14 pm, July 15th, 2008 - 139 comments
Categories: national, workers' rights - Tags:

Why does National want to remove the right of workers to appeal against unjustifiable dismissal in the first 90 days of employment?

The reason National gives us is that workers having the right to sue for unjustified dismissal has a chilling effect on small businesses. Supposedly, they are afraid to hire workers because if they find they want to get rid of the worker they will have to go through a proper process and have a justifiable reason for dismissal. Employers avoid this risk by not hiring people. And that, we’re told, leads to less employment than would otherwise be the case.

First, employment is at record levels and the cry from employers is always ‘we want more workers’ not ‘I’m scared to hire people’. There is no evidence that the right to fair process and justified dismissal dissuades employers from hiring. The policy would not increase employment.

Secondly, a study shows there are 1.5 employment related problems per 100 workers a year in the private sector (2.9 for small businesses). The median cost was $5000 ($3,900 for small businesses). Of these ERPs, most were handled quickly and cheaply by agreements between the employer and the employee; only 5% went on to become personal grievance cases. Only 10% of disputes involved employees who had been employed for less than 3 months.

Personal disputes are rare, in most cases the employee is found to have a good claim and gets a settlement, the payouts are small, and very few involve employees employed for less than 3 months. Workers’ rights are not overly burdensome on employers and when they are used employers are usually in the wrong. Removing these rights would only give free rein to the few bad employers to threaten any workers who don’t ‘behave’ (eg work unpaid overtime, work in unsafe conditions, not join the union) with instant dismissal. Do we really want to reform the law to advantage bad employers?

National might believe its policy is good for employment and reduces a heavy burden on employers but it doesn’t. All it does is give power to coerce workers with the threat of dismissal, which some bad employers will exploit. The law ain’t broke, and that’s no reason to fix it.

139 comments on “90 Day No Rights policy, why? ”

  1. roger nome 1

    Excellent post Steve. National’s oficial rationale for this legislation truely is dead in the water.

    Just to add a little more detail on the employment situation:

    Unemployment is currently at 3.6%, and most of that is due to the work turnover that a modern economy creates. We know this because, of the 3.6% unemployed only 20% at any one time will have been unemployed for 6 months or more. That means that only 0.7% of the workforce (unemployed plus employed) are out of work because no employer will take them on.

    What in fact National is doing with this legislation is taking away hundreds of thousands of people’s employment rights (as they did in the 1990s) to fix a problem that doesn’t exist.

  2. Mike Collins 2

    One thing you haven’t really acknowledged SP is the effect of the economy going sour.

    I concede that when unemployment is running at low levels and small businesses are “crying out for more employees” then such a policy loses value.

    However the current climate amongst small businesses is one of overwhelming pessimism and negative outlook. It is exactly this sort of policy which will give confidence to small businesses that they will not be burdened with poor performing employees. To get out of recession requires making it easier for the economic generators to take risks, pursue ideas and hire new staff.

    Hunkering down and avoiding risks (and hiring new staff can be risky), only exacerbates recession.

  3. Tane 3

    Y’know Mike, taking a new job can be risky too. Workers have commitments like families, mortgages and bills to pay, which means losing your job without notice or redundancy can be pretty catastrophic. A person’s job isn’t just a huge part of their identity, it’s their means of economic survival.

    But aside from the moral issues around being able to throw a person out on their arse with no notice and for no reason, there’s a good economic case against it too, because removing rights against unfair dismissal is likely to have a chilling effect on the mobility of labour between jobs.

    Why would you take a new job if it meant risking economic catastrophe for yourself and your family if your new employer decided to take a dislike to you?

    I know the right are big on the efficient allocation of labour, well don’t you think removing rights for the first three months in a new job would create perverse incentives in our labour market?

    I’d certainly think twice if changing jobs meant giving up all my employment rights for three months.

  4. roger nome 4

    “I’d certainly think twice if changing jobs meant giving up all my employment rights for three months.”

    Indeed, and doesn’t this run contrary to National’s “flexible labour market” rhetoric – i.e. if people are discouraged from advancing themselves in the Labour market through seeking higher paid jobs (because of the risk that carries), then you’re dampening productive incentives and stifling the “allocative efficiency” of the market. The end result is you have lower productivity growth and lower economic growth.

  5. roger nome 5

    oops – looks like tane alread said that…

  6. Tane 6

    I edited my comment bro, guess we wrote the same thing at the same time. Like minds, etc.

  7. Mike Collins 7

    Tane,

    I never said taking on a new job is an undaunting prospect for new employees.

    The point I was making was that SPs reasoning was based, in part, on an argument that small employers are crying out for more employees so this policy was not needed. I don’t think that is necessarily a valid observation with a recession looming (indeed we may already be in the thick of it).

    That said a worker can leave at two weeks notice. This can place considerable stress on a small employer. To follow your moral compass, we should bring in legislation that protects employers from employees being able to resign. After all we wouldn’t want their business falling over and them not being able to pay their mortgages now would we?

    Ok tongue in cheek aside. I think it is fair to say that a considerable amount of resources can go into training a new employee. I hardly think it is likely that there will be wholesale sackings as it is just not economic to hire and fire at will. Small business owners are typically not economically illiterate.

    In fact small business owners are grateful for good employees – why would they want to fire them?

  8. Anita 8

    90 Days No Rights skews the power dynamic between the employer and the employee during the formation of the employment relationship; setting a foundation where the employer has all the power and the worker none.

    Why would the business lobby want that? 😉

  9. Mike. we’ll have a post tomorrow wherein everyone can contribute reasons that people may be dismissed under National’s no rights policy which are currently ‘unjustified’ grounds in law.

  10. ants 10

    Steven, enough with the lame Strawman arguments – it makes you look like a dirty sneak. No where was it claimed that the reason National wants this is so that workers can be fired without your “proper process”.

    The sole reason for this is because it is near impossible to fire workers who have bullshitted/weasled their way into jobs or are not doing their jobs and costing the company thousands of dollars, without a costly legal battle, which often ends up in favour of the employee anyway (and yes, I have firsthand experience of this multiple times).

    If you had some real-world experience in an SME you would realise this – you apparently don’t, so we get you dressing Nationals position up as the complete opposite of what it actually is.

    How many of you morons actually have first hand experience of working in an SME and having to deal with such people?

    [ants. “No where was it claimed that the reason National wants this is so that workers can be fired without your ‘proper process'”. That’s what the Bill does, it removes the right to proper process and justifible reasons for dismissal. Your tone and the fact that you state you’ve personally lost multiple personal grievance cases suggests you are one of the bad employers that National’s policy would give free licence. We shouldn’t be making policy to help out bad employers. If you want to call people morons, go to Kiwiblog. SP]

  11. Billy 11

    …in most cases the employee is found to have a good claim and gets a settlement…

    I couldn’t see where the report concluded that? Or is there another link, Steve?

    Settlement does not mean the employee has a good claim. It means there is an ongoing cost to the employer in maintaining the dispute. When your $400 an hour lawyer tells you it’ll take $10k (an alot of your time and resource) to give you an 80% chance of success or you can write out a cheque now for $5k it’s no wonder what employers choose.

    The blind focus on the process and elevating it to the same level as the substantive reason for dismissal is the problem. This is why you guys can look forward to having a wife-beater reading your news or the state broadcaster giving him a big cheque not to.

    There is no evidence that the right to fair process and justified dismissal dissuades employers from hiring.

    Ballocks. Any employer will tell you you are better off having no-one rather than the wrong person. And how can you really know what a person is like before you have worked with him or her?

  12. roger nome 12

    Mike:

    “That said a worker can leave at two weeks notice. This can place considerable stress on a small employer.”

    Actually that depends on the employment agreement. Sometimes it’s up to 4-5 weeks.

    “I hardly think it is likely that there will be wholesale sackings as it is just not economic to hire and fire at will. Small business owners are typically not economically illiterate.”

    It’s a myth that business owners always act in their own economic interest. In fact studies have found that many employers hamstring themselves by being too authoritarian (power matters to employers more than money in some cases) in their management practices – resulting in higher staff turnover and lower output.

    “I don’t think that is necessarily a valid observation with a recession looming (indeed we may already be in the thick of it).”

    I also think that wage restraint can be necessary during a recession, so as to ensure reasonable employment figures. Having said that, the highly decentralised labour market that we currently have allows a lot of wage flexibility. We don’t need any more.

    This Bill would allow nasty employers to get away without any censure (i.e. the legal institution to enforce human rights violations under this Bill would be the civil court, which will be too expensive for most employees).

    So we may be back to the 1990s, when employers could literally get away without paying employees for weeks, and not face any consequences – i.e. it wasn’t economically rational for the employee to seek legal redress.

  13. MacDoctor 13

    Steve, here is your main reason why National propose this:

    From the DOL report you quoted.

    Even so, costs in the range of $3000-4000 could still have a large relative impact on a small business.

    i.e. It’s expensive to dismiss employees. You might be rich enough to dismiss 4 grand as trivial, but I, for one, am not.

    And I should point out that the statistic that only 10% are fired within the first 3 months is much more to do with the fact that it is still too hard to dismiss an employee for anything except major misdemeanors (such as theft or absenteeism). Small businesses tend to hang on to poor employees hoping they will improve, but, the reality is, if an employee is not satisfactory within a couple of weeks (barring simple mistakes from inexperience), he or she is unlikely ever to be.

  14. Billy 14

    So we may be back to the 1990s, when employers could literally get away without paying employees for weeks, and not face any consequences – i.e. it wasn’t economically rational for the employee to seek legal redress.

    What are you on about ‘nome? There is really no practical difference between the dismissal regimes under the ECA and the ERA.

  15. roger nome 15

    MacDoctor – And even with this evil socialist government the world bank still says that NZ is the second easiest place to do business in the world. Who would have thought?

  16. Macdoctor. Yes a $3000-$4000 claim might be large for some employers but the average small employer experiences less than one a decade(less than 20 employees/ 2.9 ERPS a year). Most ERPs are concerntrated among a few bad employers, and most go no further than an inhouse process.

    Remember too, the employee usually wins. Don’t you want to see justice done?

  17. Billy, in the report on mediations it says 60% found in favour of the employee (a large part of the rest there was no finding) and 50% had a payout.

    Macdoctor. The 10% figure applies to Employment Related Problems, not sackings.

  18. IrishBill 18

    “There is really no practical difference between the dismissal regimes under the ECA and the ERA.”

    Yes there is Billy, under the ECA avenues for doing it cheaply were not available. Under the ERA most issues are dealt with in mediation. That means no lawyers are needed and settlements are generally confidential. IMHO a lot of employers are scared of what is simple and liberal employment law. I suspect that self-interested employer lobby groups have done a good job of scaring their members out of a sensible position on this law and other perfectly manageable facets of IR law.

  19. Draco TB 19

    Why would you take a new job if it meant risking economic catastrophe for yourself and your family if your new employer decided to take a dislike to you?

    This could actually be one of the reasons that National are pursuing this policy. Employees that are freely able to move to a new job are detrimental to employers. Staff turnover costs a huge amount and most businesses want to retain the staff that they have (especially the good ones). This would become a disincentive for employees to move to a better job.

  20. burt 20

    Jobs are for life and the only employer worth working for is the govt.

    There I have said it – do I get my “I love CorruptionLabour” badge now?

  21. Ironically, the problems were caused by the ECA. In the old days (before 1991), only union members had the right to take personal grievances, but the unions took the cases and filtered out those lacking merit. The ECA widened coverage to all employees, including senior managers. This had two bad effects.

    Because payments for lost wages and entitlements, and for loss of dignity, injury to feeling, etc, were related to pay rates, there were some spectacular decisions involving senior managers, which were widely reported. This led to perceptions that personal grievance actions are a goldmine for employees.

    Worse still, lawyers got involved. Do lawyers care whether a case has merit? Maybe, but they get paid anyway (unless they’re one of the few on commission) so there’s less incentive to filter out poor cases. So, the number of PGs going to the Employment Tribunal, now Employment Relations Authority, exploded.

  22. MacDoctor 22

    Roger: NZ is the second easiest place to do business in the world. Who would have thought?

    Actually, I agree with you, it is quite easy to run a business in this country. I don’t even have much problem with company tax. But I have had friends driven almost to bankruptcy by bad employees. The ERP payout was actually the least of their problems, quite frankly. It would have been better for both employee and employer if they could have said “sorry, mate, but it’s just not working out, is it?”, given them two weeks severance and go.

    Steve: Remember too, the employee usually wins. Don’t you want to see justice done?

    The employee usually gets paid out – this is a far cry from “wins” and has much more to do with expediency than justice.

  23. burt 23

    Draco TB

    This would become a disincentive for employees to move to a better job.

    A good employee has nothing to fear from this policy, a hopeless lying cheat who pretends they are something they are not in the interview has everything to fear. I note there is a lot of fear about it on this site.

  24. IrishBill 24

    Welcome back Burt.

  25. Billy 25

    IB,

    I was addressing ‘nome’s apparent suggestion that the ECA allowed an employer to not pay his or her employees and there be no sanction. Patent nonsense.

  26. Tane 26

    Damn, lost my post in response to Mike, though ‘nome has largely covered it.

    My point is basically that workers should not have to rely on the whims of their employer to know whether they’ll have a job tomorrow. There’s a subtext going on about how it’s really hard to fire bad workers and good workers have nothing to worry about.

    I’d point out that ‘bad’ workers can already be fired, you just need to go through a fair process. It’s the fair process that National wants to scrap. And it’s in removing the fair process that ‘good’ workers with malicious employers will get caught up.

    Under National’s law, being a good employee will mean nothing. If your boss takes a dislike to you then you’re out the door.

    [Oh and Billy, don’t bring Veitch into this. If his employers were too stupid to put a clause in his contract about bringing the network into disrepute then it’s their own fault for failing to do so. Don’t think you can exploit public disgust with his behaviour to try and take rights off minimum wage workers.]

  27. What IrishBill said at 5.33pm

    It’s not that hard to dismiss a worker who is not performing. If the job’s relatively simple — more likely to be the case in the SME sector I’m guessing — then the period for improvement after a warning could be as little as a few weeks.

    PS Someone send Burt a Labour Party badge quick.

  28. Typical sexist cartoon. What else would I expect over here in leftyland.

  29. Tane seems to have it nailed. This isn’t about new employees. It’s about putting fear into the ones already in jobs that they may find themselves up the creek without a paddle if they change jobs.

    Also, a popular trick in the corporate world is to lure away a competitor’s key personnel asset(s)….even if you have no particular use for them. This law change would effectively let you sabotage a competitors business….and then cut your new hires loose after the damage has been done. Maybe they go back…maybe they don’t…..but you know you only have to pay them for 89 days. Period.

  30. Tane 30

    I think it’s meant to be ironic Dad. You might want to ask the PSA.

    Good to see your newfound concern for feminism though, keep it up.

  31. What gets me is that the policy aims to strip these protections from the workers who most need them, and who have fewest alternatives.

    Overwhelmingly it’s the lower paid and lower skilled. They’re the same workers who got hammered by the ECA. Lost their union membership and suffered pay cuts, forced to work longer hours, etc. National’s proposals just open these most vulnerable workers to further abuse.

    And one study showed that these workers are the ones most likely to say that they would join a union if they could. They should be able to depend on the law providing the same protections that workers in larger organisations get, at least.

  32. Oliver 32

    Having actually worked under a probationary period in Dublin I can say that it was fantastic. In a country that is screaming out for workers like Ireland is I worked for a small family owned business. I only got the job because of the probationary period. I was a foreigner with no industry experience so the boss said that I had 90 days to prove myself. It worked a treat. When a delivery driver turned out to be a dud we were able to get rid of him when he had only lost us one customer. My colleagues there included refugees, immigrants with almost no English and a mother returning to the workplace; just the sort of people struggling to find work in NZ today. The boss was able to take a chance on these people because of the probtionary period. He wold not have hired them otherwise. If we had not been able to get rid of the delivery driver so quickly he could have cost us a quarter of our customers.

  33. “Good to see your newfound concern for feminism though, keep it up.”

    Sorry I read that Tane, as I feel rather ill now. I just brought me tea up.

  34. James Kearney 34

    “we were able to get rid of him”

    “If we had not been able to”

    “he could have cost us a quarter of our”

    Someone’s a house slave.
    http://www.youtube.com/watch?v=znQe9nUKzvQ

  35. burt 35

    Steve Withers

    Tane seems to have it nailed. This isn’t about new employees. It’s about putting fear into the ones already in jobs that they may find themselves up the creek without a paddle if the change jobs.

    I think that is complete bollocks, good staff move for a combination of reasons;

    * Because they can
    * Because they are offered more money
    * Because they want a change
    * add more reasons here as you think of them….

    We need to separate this homogenised thing called staff. There are staff and there are staff. Highly trained people earning lots of money, highly trained people earning stuff all (public sector health for example), there are low paid people doing mundane jobs that nobody has build a machine to do and everything in between.

    The key problem I see is trying to make a “one size fits all” way to deal with them. Irrespective of how the ECA fits with your own ideology, it did provide a framework to allow the employer/employee relationship to be managed in a way that suited the particular situation.

  36. burt 36

    Oliver

    Interesting to hear that perspective. I can see how that works. But you seem to have missed a key point to get along with the anon authors of the standard.

    Employers are evil, they are nasty and they like spending most of their time trying to find new and exciting ways to ruin the lives of the people they hire.

  37. Tane 37

    It’s also worth noting that this isn’t just about money. Where unions are involved and where the circumstances make it viable, the preference is usually for reinstatement over a big cash payout.

    Personal grievances are about putting right an injustice, not about screwing money out of small businesspeople. As Jafapete points out, the opportunistic ‘no-win, no-fee’ agents are largely a hangover from the ECA.

  38. burt 38

    Tane

    I disagree, with your perspective on the preference being for reinstatement over a big cash payout.

    Usually once either party reaches for the contract to see what provisions there are to cover a grievance the damage has been done. Often in employment situations trouble stems from personality clashes and/or peoples (employer or employee) inability to tolerate each others way or methods. When staff who do not have the skills are involved then reinstatement may be the preference, but this will typically be driven by fear of being unable to get another job. I don’t see why an employer suddenly becomes liable for a employees state of mind for ever.

  39. Tane 39

    Burt, do you have any experience in this or research to back up your assertions, are you just riffing off what you reckon might happen?

    I can tell you for a fact that union advocates try for reinstatement where possible. It isn’t always, but that’s often due to the employer’s pride getting in the way of his or her economic self-interest.

  40. Billy 40

    But, Tane, Veitch is absolutely relevant. He is an employee who appears to have something reprehensible. And despite that, because his employer tripped up on an entirely procedural point, it’s looking like the only way to get rid of him is to write him a big fat cheque so he can profit from his wrongdoing.

    This is the trap you fall into when you assume all employees are good and all meployers are bad.

  41. burt 41

    Tane

    A significant portion of “our companies” revenue comes from employment disputes. God bless the ERA 🙂

  42. Mike Collins 42

    “employer’s pride getting in the way of his or her economic self-interest.”

    Lucky we have union hacks telling employers what’s in their economic self interest. The fact that they have managed to create and sustain a business, when the union hack couldn’t is just an unimportant detail.

  43. Oliver 43

    Steve Kearney,

    Your comment is actually quite offensive. Understanding that staff prosper when a business prospers and taking a bit of ownership in how things progress in your workplace are not negative qualities. Having some pride in your work, your achievements and the quality of your performance are not negative qualities. Showing a bit of loyalty to an employer that gives you a chance and helps you out when you are down is not a negative quality. Understanding that if the lousy employee had cost us a quarter of our customers then the whole business would have gone under costing all 13 other employees their jobs is not a negative quality. Understanding that if the business had gone under that not only would the employees lose their incomes but that the family that started the business would have been bankrupt is not a negative quality.

    Identifying anyone that wishes the best for their employer as a house slave is a very negative quality that smacks of the worst kind close-minded hatred for anyone that is an employer rather than an employee or beneficiary. It is a negative quality that precludes rational constructive debate. It is a negative quality that shows a contempt for the entrepeneurs that have done so much to provide an income for us all and build our standard of living to the relatively high position that we enjoy in the world today.

  44. Billy 44

    Damn those evil meployers, meploying about the place!

  45. Mike Collins 45

    Well put Oliver!

  46. MacDoctor 46

    Steve: This law change would effectively let you sabotage a competitors business

    Oh, come on, Steve. Any employer that tried anything like that would never be able to hire anyone again. Who would be stupid enough to work for them?

  47. IrishBill 47

    Billy, while most employers are fair there are still a lot who are not. Why are you advocating a law that rewards the poor ones (and would provide little gain to the good ones)?

    On your point about TVNZ I would say that if there has been a failure to put a proper disrepute clause in Veitch’s agreement then he should be paid out and the HR manager who failed to properly negotiate the contract should be disciplined.

    As with you “meployer” comment you seem to think that the answer to poor management should be relaxed law. That’s an answer that sends no market signal for managerial failure and rewards a lack of personal responsibility on the part of the manager/employer. In fact I would argue that there should be more responsibility for these people as they are the ones who are being particularly rewarded to “manage”. Are you sure you are a right winger?

    Oliver, I would assume that the delivery driver in question was properly interviewed and had his/her references checked before s/he was employed. Or was s/he brought on without proper checks and balances based on the idea that if s/he didn’t work out then s/he could simply be sacked? If the latter is the case then the lost revenue that came from the short time that person drove for your company is the fault of your manager and a classic example of why no-rights laws damage productivity by protecting managers from the repercussions of their own bad hiring/HR behaviours.

  48. Oliver 48

    Irish Bill,

    The driver was interviewed and references were checked, he blagged his way through the interview and the referees lied through their teeth to help out a mate.

  49. Billy 49

    Why are you advocating a law that rewards the poor ones (and would provide little gain to the good ones)?

    I am not. I think the proposal is 180 degrees in the other direction to what you suggest. The gain to the small employer would be huge. The plumber without a dedicated manager or HR person can find out if the proposed employee is up to it. Under the present law, if the employee’s not and the plumber gets the procedure slightly wrong it will cost him or her (assuming there to be female plumbers) the “mere” $5k Steve has scoffed off. And it will probably mean he or she is less inclined to take a chance on the next potential employee.

    I still doubt there is any real advantage to a bad employer employing a series of employees on 90 day trials. In my not inconsiderable experience in these matters employers are emotionally and economically invested in getting someone to actually do the job. Having found someone it’s just a pain in the arse to find someone else.

    A great many employers are not managers and HR departments who need to be punished. They are plumbers, builders, farmers and shop keepers trying to get by like everyone else.

  50. randal 50

    does anyone remember the case in ashburton where the employer thought that the employment contracts act allowed him to beat up his workers because there was no provision in the bill against it?

  51. burt 51

    IrishBill

    Billy, while most employers are fair there are still a lot who are not. Why are you advocating a law that rewards the poor ones (and would provide little gain to the good ones)?

    This is back to the “one size fits all” mentality again. If most employers are fair then why do you want to create employment laws that work against them?

    Do you really think that it is valid to make the process of employing staff so difficult that only large companies have the resources to risk it?

  52. randal, I remember that one matey, something in the water down there, I think they call it nitrates. Talk about Joe 90 and a dry well.

  53. IrishBill 53

    “A great many employers are not managers and HR departments who need to be punished. They are plumbers, builders, farmers and shop keepers trying to get by like everyone else.”

    Billy, if these people take the same care hiring workers that they would investing in tools, vehicles, stock or store frontage then they probably won’t have any worries. When you say “slightly wrong” you are being disingenuous. The mediation process is remarkable fluid and to get a payout based on a “process” error the error has to substantial and relevant to the grievance. If a small business person cannot follow the law as it stands (and it’s a very basic law) then they should consider whether they are cut out to run a business or not.

    Or do you suggest we make allowances for failure to follow other basic laws? Should small grocers who can’t manage gst get released from the obligation? What about builders who find building regulations too tiresome? Or farmers who can’t manage to care for their stock or respect their neighbors’ boundaries? How about the small car sales yard owner who finds it too difficult to get his cars properly warrented? Or the electrician who wires your house but isn’t sure how to do so safely?

    All of these small businesspeople have to deal with a whole lot of stuff in their businesses that is more complicated than the very simple employment law we currently have.

    Oliver, if a worker is hired on false references they can be sacked already. Why do we need this law again?

  54. Billy 54

    If a small business person cannot follow the law as it stands (and it’s a very basic law) then they should consider whether they are cut out to run a business or not.

    Remind me what Steve said about the percentage of mediations which ended in a payout? Are you sure it is as simple as you suggest, IB?

  55. Oliver 55

    The referees weren’t fake, it was what they chose to say. Also in the time it would have taken to sack him for that we would have lost more customers. Then, in Nz at least, if you put so much as a finger-nail wrong in the manner of sacking someone you can get burnt regardless of what the employee did.

    But my first point was still valid, people were given a chance that normally would not have been given a chance, the sort of people who remain marginalised now.

  56. Billy 56

    And IB, if you want to make it hard for people to pay tax or get warrants of fitness that’s one thing. I’m just not sure what the benefit is of making it hard to employ people.

  57. IrishBill 57

    “Remind me what Steve said about the percentage of mediations which ended in a payout? Are you sure it is as simple as you suggest, IB?”

    2.9% is a very low number Billy, I’d be surprised if the number of failures to follow other laws (such as builders breaching building regulations or shopkeepers failing to complete proper IRD returns) were that low. The truth is that businesses lose money in all sorts of ways due to poor management because some people are not cut out to run them. Why should workers bear the burden of their employer’s inability to practice business properly.

    Edit: my point is that it is no harder to employ people properly than it is to pay taxes or invest sensibly in a work vehicle. You seem to think that it is an abomination that someone should have to pay a lawyer for employment advice (a very rare occurrence) but I doubt you would consider the same employer paying an accountant the same sort of rate to do their taxes a similar abomination. Are workers really worth less to a business than a tax return?

    The problem is that the (irrational) HR behaviour of a lot of employers implies the answer is “yes”. I’ve know many small business people that would spend hours investigating and deciding on a work vehicle that might cost them $20k but spend bugger all time employing someone they might pay $40k to over a year. That’s bad management and a no-rights period will only concrete poor HR practice like that into place. That’s bad news for their productivity and our economy.

  58. burt 58

    IrishBill

    If a small business person cannot follow the law as it stands (and it’s a very basic law) then they should consider whether they are cut out to run a business or not.

    To that I would say:

    If people in parliament can’t follow the electoral funding laws written by parliament/themselves then they should consider whether they are cut out to be in parliament.

    Sadly employers can’t pass validations when they claim to have not understood the law, they live by it’s consequences.

    It is a lot harder to employ people than pay taxes or invest sensibly.

  59. Draco TB 59

    Burt:

    A good employee working for a good employer has nothing to fear from this policy,. Not all employers are good and this policy removes the protections people need from bad employers. After 3 years as a manager at McDs I know how frustrating it is when you can’t immediately get rid of a bad employee but I’ve also met managers that would fire people because the employee managed to show them up rather than because the employee did something wrong.

    Innocent until proven Guilty – It’s an old custom we have but it’s one we put in place for a reason.

  60. burt 60

    Oliver

    But my first point was still valid, people were given a chance that normally would not have been given a chance, the sort of people who remain marginalised now.

    You are correct, having some ability to negotiate a trial period provides chances for employers to take some ‘risks’ in who they employ. Some candidates who don’t stack up well on paper but show ability and desire to work…

    That’s the problem with one size fits all, no room for the ones who drop through the cracks.

  61. “Innocent until proven Guilty ”

    Ever experienced the Family Court and done 90 days locked up in a cell Draco TV? Any drop kick can see Helen is not up to the job and in 90 hours she can expire. Oops.

  62. Why won’t Labour let a hard working New Zealander who owns a business fire someone who is not working hard enough and costing them money.

  63. Anita 63

    Somewhere in all of this, there is a reasonable problem for SMEs; not everyone knows how to hire, manage, develop and exit staff. There are plenty of great business people out there who just don’t have either the skills or the confidence to do a great job of the people stuff.

    National’s solution appears to be to put all the risk on the worker and destabilise them as much as possible in their first 90 days, but to make no substantive changes to anything else to actually help the SME get the best out of their staff.

    So, what should the government do? What would the right policy look like?

    All of us – union and employer, public and private sector – would like to see SMEs doing better at managing their staff. What would help them do that without screwing over the workers?

  64. Anita 64

    So, what should the government do? What would the right policy look like?

    To answer my own question I’m going to set off the small-government brigade 🙂

    1) Up the amount of effort put into small business mentoring schemes, and make sure there are mentors with good staff management skills. The existing business mentoring schemes seem to put a lot of effort into the business planning and marketing areas – but putting your business plan into action almost always means growth, and that usually means hiring new staff at a really risky time for the business.

    2) Set up a SME employment law service (probably tendered out to private sector providers?) which provides some level of subsidised employment law services to SMEs – probably a few hours a year free of charge, and the rest at low cost. Perhaps tie it into the mentoring schemes, so if a mentor recognises an SME needs real help the amount of free services can be increased.

    3) Provide basic employment law skills courses to SMEs (perhaps provided by either tertiary education providers or local business associations) the courses short be targeted at basic employment law safety skills for SME owners, and basic employment processes for admin staff (in lots of SMEs whoever balances the books does the employment contracts). As well as the nuts and bolts this should model good practices.

    4) Create local SME employment forums where SME owners can come together (lunches or after work drinks) and maybe have a presentation about some aspect of employing staff and talk about it. This would be a good opportunity to occasionally get SME owners and unions in the same room – lots of the time they’re trying to solve the same problems (e.g. how to handle demand peaks and troughs when a business is experiencing new growth).

  65. burt 65

    Anita

    I disagree that the National policy puts all the risk on the worker and destabilise them as much as possible in their first 90 days. However that’s my opinion vs yours.

    However to address the possibility of rolling ‘probation’ periods it would be easy enough to modify the definition of probation period slightly. Wayne Mapp’s bill already said ‘up to 90 days or a period lesser agreed between the parties’ or something to that effect. So 90 days is the maximum.

    Perhaps a simple requirement would be that during the ‘probation period’ a 10% loading is added to the salary/wage of the employee to cater for the ‘risk’ they face of being fired with no explanation. This would have a two fold effect, it would encourage employers to keep the period short and it would make it an advantage for workers to be on rolling probations.

  66. Draco TB 66

    So, what should the government do? What would the right policy look like?

    Government should do what they’re already doing and the policy would look a lot like the one we already have. If the SMEs are having difficulty hiring good people because of their own lack of skills and losing money perhaps they should look at what’s available in the market:

    http://www.finda.co.nz/business/c/employment-agencies/

    EDIT: Ok, I’m going to say that I like your suggestions as well.

    dad4justice:
    Yes, I’m aware of the discrepancies in the Family Court. I have a friend who has been separated from his children for many years because of them but I still believe that it is better to have those laws there than not even if they’re imperfect and handled by a bunch of sexist bigots. The imperfections will get ironed out over time and the sexist bigots will eventually get fired.

  67. burt 67

    Draco TB

    The imperfections will get ironed out over time and the sexist bigots will eventually get fired.

    Not once they are hired… they are there for life and they hire more of the same sort of people as themselves. The cycle continues, no probation period is going to see a sexist bigot decide that another sexist bigot just like themselves shouldn’t work there.

  68. burt 68

    Anita

    To answer my own question I’m going to set off the small-government brigade

    Yes indeed. The small govt brigade solution was if employers want increased flexibility with a probation period then it has a small overhead for them when they exercise that flexibility. With direct benefit to the employee.

    The big govt is good govt solution is to create an entire industry to support and control what should be a very simple process – pay somebody to do some work.

  69. Draco TB ,yes the “sexist bigots” on the Family Court gravy train don’t have to worry about a thing as the truth doesn’t matter in the insidious court of lies. They are well paid and skilled in making male clients feel gobsmacked and poleaxed.Talk about NO RIGHTS for SEVEN YEARS, join up the fractured family business Ms Judge Maggot Brain.

  70. Anita 70

    burt,

    Probation periods address a very very small amount of the employment related problems SMEs have. How do you propose the address the rest?

  71. Bill 71

    So why not have the power to fire invested in the workers?

  72. burt 72

    Anita

    As I said earlier in this thread, the company I part own derives significant revenue for employment disputes, the gravy train that is the ERA. I understand this stuff quite well. I think the laws that we currently have are shit and although they provide personal benefits I think they should change. If my companies income is reliant on laws that are easily manipulated and misused then my companies imcome is not sustainable. Luckily it’s only a significant portion of the company revenue not the entire revenue stream. We (the directors) will utilise the opportunity while it exists but will be very happy to turn our mixture of skills to something more productive when it’s not available.

    So what did you think of the idea of a salary/wage loading during a probation period – bit left field for a ‘right wing nut job’ eh?

  73. johndoe 73

    So let’s drop the probationary period to 30 days. That’s about how long it takes to train a McDonald’s worker. And having been in a lot of lines that were crippled by poorly functioning McDonald’s workers, if I were a franchisee I certainly would cherish the ability to give the job to someone who could actually perform it.

  74. Anita 74

    burt,

    Do you think all the employment related issues SMEs have are related to the ERA? Personally I reckon there are a whole bunch of others to do with people who are not skilled at managing staff taking on risky staff management tasks at the most fragile times for their businesses.

    So what did you think of the idea of a salary/wage loading during a probation period – bit left field for a ‘right wing nut job’ eh?

    It’s not dissimilar to the contracts-for-service used in many high skilled jobs. I think high skilled jobs would continue to use contracts for service, and for low skilled low cost jobs I can’t see employers being willing to pay 10% extra to new staff, even to contract out.

    I also think it creates moral hazard problems and would make it very tempting to use this as a temping process while one tries to find a more perfect employeer (again a contracting model).

  75. randal 75

    cut to the chase… it is nationals policy to confuse and intimidate workers. a confused person is most controllable because as Kafka found out it is impossible to tell what the hell is going on when nobody is accountable or the rules are never made clear.

  76. burt 76

    randal

    Are you are talking about our current govt or employment laws?

  77. I think randal dropped his silly sandal again burt.

  78. Ari 78

    A good employee has nothing to fear from this policy, a hopeless lying cheat who pretends they are something they are not in the interview has everything to fear. I note there is a lot of fear about it on this site.

    Right, and good employers have nothing to fear if they lose all their rights under some hypothetical Radical Socialist Greens government. The point is that IR disputes should be low-cost affairs that don’t unfairly favour either party.

    Removing people’s rights to challenge their dismissal for a reason that can’t be described as “extraordinary” is exactly the sort of thing that unfairly favours one of the parties involved in the dispute.

    Trial periods are well and good, but they should be contracted as such, and should last a short time- say, a couple weeks. Three months is pretty ridiculous- there are many jobs that don’t last that long, let alone need that long to establish competency.

  79. Very simple solution, leave the law how it is. Currently the law allows for a probationary period, what is it with this National party, always trying to fix things with new laws! gosh youd think they were communists or something.

    As the law stands if both the employee and the employer agree they can have a probationary period, why does this need changing? if a potential employee doesnt want a probationary period, they can go somewhere else, and the employer can hire some one else.

    I coudl understand it being made compulsary if it was in wide spread use currently but its not.

    I do ask for one consession on the proposal though, that employees under nationals proposed 90 day probationary period who are fired at the end of the 90 days are allowed to go to court for unpaid wages, as I understand under the current policy they are not.

  80. Billy 80

    randal,

    Weed can be fun. I like smoking it then talking shit while eating french vanilla ice cream and dark chocolate. But seriously, you need to smoke a lot less. Or at least, stay off the blogs once you have indulged.

  81. Remember what we’re talking about here – removing rights of hundreds of thousands of New Zealanders, allowing bad employers to use the threat of the sack to stand over vulnerable workers, and why? because of some anacedotal evidence of a few marginal cases of employers having trouble getting rid of bad employees.

    Two basics of policy

    – you don’t make policy for the exceptional case or the anacedote, you make it to work well for most people most of the time and based on real evdince. If there are marginal problems, you make policy targeted specifically at those problems.

    – you don’t make policy that primarily advantages the bad actors.

  82. Leftie 82

    What about the workers? What do they want? This is just catering to a minority group.

  83. Billy 83

    killinginthenameof,

    The current probationary period is utterly meaningless. At the end of the “probationary period” the employer must still have a good substantive reason to terminate the employment and must still follow the same procedure he or she would have had to follow after the probationary period. Whether the employment is being terminated within or outside the probationary period makes no difference.

  84. burt 84

    Anita

    Do you think all the employment related issues SMEs have are related to the ERA? Personally I reckon there are a whole bunch of others to do with people who are not skilled at managing staff taking on risky staff management tasks at the most fragile times for their businesses.

    I agree with you here, the ERA has produced a larger volume of work for employment lawyers than the ECA did but it’s not the cause of the problem. The issues could easily be much like you say but building an industry around managing the interaction of the unions and the employers is IMHO bureaucracy for bureaucracy sake.

    If the unions want to increase their membership then they need to add more value for their members. Not be supported by additional assistance/programs to help them achieve what they say they are good at. Personally I’m not a union guy, I was a youth rate compulsory union member when I first started work and these great things called ‘unions’ I had been told about were hopeless when I had my first employment dispute. I reckon when it was normal for 400 men to go down a mine and only 395 would came out – unions were excellent at making sure that changed. I don’t see how they can expect to have employment laws changed to accommodate their inability to provide value to their customers.

    Employment laws need to be fair and reasonable and address to some degree the power balance between the employer and the employee. However they still need to recognise the golden rule. He (or She) who has the gold makes the rules. It can’t be the only rule, but we cannot forget it exists.

  85. Saying that ‘good employees’ have nothing to fear from having to work without rights is premised on the idea that all employers are always fair in their dealings with all workers.

    Hell, why do we need Police to have a search warrent to search your house? Only bad people need to fear getting searched, because the Police are always fair and always that their facts right.

    Why do we need any rights at all? Rights only protect bad people because those actors that are restrained by rights are always behave correctly, have their facts right, and always behave fairly.

  86. Leftie 86

    One other thing. The employers here talk like they pay workers good money…such good money they can demand the best out of their workers or goodbye, meanwhile the debate rages about the wage gap between us and Australia.

  87. Billy 87

    Two basics of policy

    – you don’t make policy for the exceptional case or the anacedote [sic], you make it to work well for most people most of the time and based on real evdince. If there are marginal problems, you make policy targeted specifically at those problems.

    – you don’t make policy that primarily advantages the bad actors.

    My point exactly.

    I guess Steve thinks good employers are the “exceptional case”. Or is he suggesting that “most” employers would abuse the 90 day trial “most” of the time. If some marginal employers abused the 90 day trial policy, why could we not “make policy targeted specifically at those problems”?

    And, once again, this policy would advantage the 98.9% of good employers and the employees who would not otherwise have been given a chance.

  88. burt 88

    Steve Pierson

    I think you are getting confused. Where you say

    Hell, why do we need Police to have a search warrent to search your house? Only bad people need to fear getting searched, because the Police are always fair and always that their facts right.

    The sort of thing that seems to be being suggested is that Police should be given a search warrant for every house and every person because they need it for a few.

    Of course police need that power, but only after some bad behaviour has been brought to their attention. We don’t all walk around with an arrest warrant pinned to our backs just incase one of us stuff up and breaks the law.

  89. National is meant to be releasing its industrial and labour policy this week or next – the 90 Day No Work Rights policy will be the centrepiece of it… what are the odds, do you reckon, that the interests of workers will be ignored in every aspect of the policies (apart from a cursory mention) and everything will be to weaken the position of workers and give more power to employers (that power balance is central to whether workers get decent wages or not)?

  90. Billy. Don’t be silly and don’t purposely misinterpret me. I’m saying National’s policy will only help out the few bad employers. The current situation works just fine, the vast majority or employees have no trouble and the few disputes there are are resolved cheap and quickly.. if it’s not always perfect every time that’s no reason to throw the baby out with the bathwater.

  91. Billy 91

    I’m saying National’s policy will only help out the few bad employers.

    And I’m saying the proposed law will help good employers and employees who are presently less likely to have a risk taken on them. At what I consider to be the unlikely risk of bad employers arbitrarily sacking employees who can do the job in the expectation that they’ll be able to find another.

  92. burt. you’ve confused the notion of rights in my examples.

    Workers have the right to a fair process and justified reason for dismissal

    People have the right to not have their property searched by the Police without warrant.

    We don’t take away the right to be free from unreasonable search by arguing that only bad people will get searched. So, why would we take away the rights of workers to fair process by arguing that only bad employees have anything to fear?

  93. Billy 93

    And why does everyone delight in using “Billy” and “silly” together all the time? It’s not even my real name.

  94. burt 94

    Steve Pierson

    Are you willing to address the question of why this needs to be a one size fits all scenario.

    Why can’t employers acting in good faith employing skilled people deploy a probation period. Why should a business owner/manager not be able to consult existing staff and see how they feel about the suitability of the ‘new guy’ they now need to work with?

    One of the most difficult situations I have had to deal with in a team leadership role was an existing excellent employee telling me she would leave if we didn’t get rid of the new guy who was rude and incompetent. I was powerless, senior management were powerless and a great team member resigned. Loose/loose

  95. Anita 95

    burt,

    I agree with you here, the ERA has produced a larger volume of work for employment lawyers than the ECA did but it’s not the cause of the problem. The issues could easily be much like you say but building an industry around managing the interaction of the unions and the employers is IMHO bureaucracy for bureaucracy sake.

    I wasn’t suggesting building an industry around managing the interaction of unions and employers. In fact I wasn’t suggesting building an industry (use existing providers and schemes) or managing the interactions of unions and employers at all.

    I was suggesting that the government should invest in providing both support services and training to SMEs so that they can do the best possible job of managing their staff.

    Help SMEs be effective employers, make the staff as productive as they can be, make New Zealand’s economy boom. What could be better?

  96. burt. I’m just dealing with the policy that National has proposed, which is a one size fits all. All workers trying to get jobs in small businesses will have to accept a 90 day period where they could be fired for no good reason.

    If there was some sophisicated approach that wouldn’t disadvantage most workers and give unwarranted power to bad employers, that would be different, but that’s not what National’s policy does.

  97. burt 97

    Steve Pierson

    burt. you’ve confused the notion of rights in my examples.

    I think it’s still you who is confused although I agree my point was not clearly made.

    Not allowing a probation period fullstop is like saying all people will need to be arrested one day so print an arrest warrant and attach it to them now. It will be handy when we need it later.

    Allowing a probation period is not comparable to not needing a search warrant, it’s comparable to presumption of innocence.

  98. Billy.
    “And I’m saying the proposed law will help good employers and employees who are presently less likely to have a risk taken on them”

    any actual evidence (not stories – stats or studies) that the current law discourages employment? Doesn’t seem to be doing us any harm.

  99. Anita 99

    burt,

    Why can’t employers acting in good faith employing skilled people deploy a probation period.

    They can now, as you know.

    Why should a business owner/manager not be able to consult existing staff and see how they feel about the suitability of the ‘new guy’ they now need to work with?

    They can now, as you know.

  100. burt 100

    Anita

    I like the idea, I don’t see it as a govt function. However be it govt or private it will have significant benefits so therefore the ownership of the scheme is inconsequential to it’s value as a concept.

    Why do you think it needs to be govt?

  101. Anita 101

    burt,

    Because the problem exists now and the private sector doesn’t seem to be dealing with it.

    I think one of the roles of government is to see the gaps where things are needed and make sure the gaps are filled. You will note I was suggesting that government use/encourage existing (largely private) providers to fill the gap, not that central government do it.

    Ideally the private sector would take over and the government would quietly back out.

  102. burt. the current law is not akin to arresting everyone and taking their fingerprints. The hypothetical you describe is not a right, it’s a restriction on freedom of individuals, forcing them to be fingerprinted.

    What rights do is protect the weaker party from unreasonable use of power against them (in fact, the whole of the law can be seen as a restriction of the unreasonable use of power by the powerful to empower the rest of us) – the public is protected from unreasonable exercise of power by the Policy, the employeee is protected from unreasonable exercise of power by the employer. When you take away rights, you are opening the door for unreasonable use of power by those in powerful positions against those with less power – you should only do that with good reason.

  103. burt 103

    Anita

    Why should a business owner/manager not be able to consult existing staff and see how they feel about the suitability of the ‘new guy’ they now need to work with?

    They can now, as you know.

    No I don’t know, how is this achieved without a messy process when there is no probation period?

  104. Anita 104

    burt,

    Involve existing staff heavily in the recruitment process. Make sure the recruitment process is effective at checking how the potential employee would interact with existing staff. Do recruitment properly!

    (This is part of my point about why SMEs need support with employment processes, these things are entirely possible you just have to have the knowledge and the confidence)

    Which reminds me, I’ve exited a staff member for incompetence – it’s entirely possible under the current law. I think it sucks that your organisation couldn’t work out how – again good training and support gets you a long way!!

  105. Billy 105

    Anita,

    They can now, as you know.

    This is just plain wrong. You can employ someone and say they are employed on a probationary period. But there is no difference to the procedure or practice when terminating an employee’s employment during or after a probationary period under the current law. If you have a 60 day probationary period, whether the employment is terminated on day 58 or day 62 makes no difference. A probationary period is utterly meaningless under the present law.

    Steve, sorry, I haven’t had time to conduct any surveys into this. In fairness, I’ve been too busy managing my staff. I know quite a few employers. We talk. No one is desperate for a 90 day trial period so they have an opportunity to screw their staff. Sometimes, however, they say they’ve decided not to employ someone because they are worried they are not the right person. Maybe they were wrong. Guess we’ll never know.

  106. burt 106

    Anita

    Involve existing staff heavily in the recruitment process.

    Yes yes, great… everybody, stop what you are doing and come and have a chat with Jo Blogs, Jo wants to work here and we need an extra staff member because we are busy. Can you all stop what you are doing and socialise with Jo for a while. Sign-off sheets are over here once you have made an assessment.

    Yep – that will work in all cases (one size fits all) – NOT!

  107. Anita 107

    Billy,

    So what do you want from your probationary period if the one you’ve got now isn’t good enough?

    must … go … to … bed! 🙂

  108. Draco TB 108

    However they still need to recognise the golden rule. He (or She) who has the gold makes the rules. It can’t be the only rule, but we cannot forget it exists.

    That rule was outlawed 800 years ago.

  109. burt 109

    Draco TB

    I like this bit….

    “It required the King to renounce certain rights, respect certain legal procedures and accept that his will could be bound by the law.”

    Makes me think of Darnton Vs Clark. 🙂

    But seriously, do you think that the Magna Carta removes the inherent right of a person spending their own (or their companies) money to decide who should work for them and that it denies them some form of ‘testing period’ when they are spending that money?

  110. Anita 110

    burt,

    “Hi, this is Jo, as you know we’re looking for a new and Jo’s our final candidate at this stage. Jenny, Shane and I think Jo’s great, but we’re not quite sure yet, and Jo’s pretty keen to work here, but she’s not sure yet either.

    She’s come in for the afternoon so she can get a feel for the job, and you all can get a feel for her. She’ll be spending a while with Bill talking about the job and having a look at the workspace and running through some of the spreadsheets and the tasks she’ll need to do. Then I want her to spend maybe 15 minutes with each of you, have a chat about what you do, what you think her job will be like, and ask her anything you’d like to check out.

    Could whichever of you she’s with at afternoon tea time make sure she gets a cuppa and show her the break area.

    Afterwards I’ll catch up with each of you about how it went, then Jo and I will meet tomorrow lunchtime for coffee and see how we want to proceed from here.”

    It’d take 20 mins from each staff member and would be a robust, fair, effective process that would be far less work than hiring her then dismissing her.

    Sure it’s not going to work in a big call centre, but the problem we’re supposed to be trying to solve is an SME hiring a new employee and being concerned about making sure they perfect.

  111. burt 111

    Anita

    I have interviewed like that, I have been interviewed like that.

    Yes it sorts out a lot of things. But what about the guy who after he has been there a week still hasn’t had a shower since the day of the interview three weeks ago? There is still no way to get past the ‘first impression” in 20 minutes. This is the issue, if it were as simple as this in all cases it would be the norm. It might be commonplace in higher paid roles but as you say it won’t work for the call centers etc, which if I’m not mistaken is where workers rights are a bigger issue.

    One size will not fit all, why must we try and work around a law that tries to make that so?

  112. RedLogix 112

    “One size fits all”… that IS kind of how most laws work.

    The moment you start to make up exceptions, or complex gradations of application is the same moment the sharp men in sharp suits start working the angles.

  113. J Mex 113

    At the heart of The standard’s arguement is an absurdity…

    – That an employer would fire a good employee after 89 days (and 89 days of training investment), so they don’t need to give them rights, and then roll the dice in the hope that they get someone as good.

    No recruiters would work with such employers. Recruiters only get paid when the employees stay for 6 months.

    An employee can leave at any time (ever tried to make someone, who didn’t want to, work out their two weeks notice?), but employers are currently locked in to employees to a large extent.

    Most developed countries have this law and the sky hasn’t fallen in those countries.

    This is just patch protection from the EPMU and their bloggers.

    [lprent: I wearily point out yet again. You are attributing an opinion to a lump of software running on some hardware. Now I realise this may come as a shock to you, but software doesn’t think.

    Direct your criticism to the writer of the post, and I’d suggest that you read the About and Policy sections at the top of the site. It appears you are ignorant about how this site runs.]

  114. Oliver 114

    Has anybody else commenting on this thread acutally worked somewhere overseas with a probationary period written into employment law??

  115. Anita 115

    burt,

    Yes it sorts out a lot of things. But what about the guy who after he has been there a week still hasn’t had a shower since the day of the interview three weeks ago?

    Then you talk to him, and if that doesn’t work you run a nice short tight process and fire him if he doesn’t sort himself out. I’ve had personal hygiene conversations with staff I’ve managed; they’ve all sorted themselves out without a lot of effort on my part, they would have been gone if they hadn’t.

    It might be commonplace in higher paid roles but as you say it won’t work for the call centers etc, which if I’m not mistaken is where workers rights are a bigger issue.

    National’s proposal does nothing to address the issues of call centres it is explicitly about small employers. My suggested approach would work fine for them, and it would give far better outcomes than try-and-fire alone would.

  116. Anita 116

    lprent,

    Now I realise this may come as a shock to you, but software doesn’t think.

    Now, as a professional coder, you know that’s just not true. Late at night code is a devious and vicious opponent!

  117. The legislation, when passed in 2009, will allow more opportunity to employers and employees alike.

    Labour’s attack on employers, under the current system, make them afraid to hire new staff.

  118. RedLogix 118

    Labour’s attack on employers, under the current system, make them afraid to hire new staff.

    A speculation that flies in the face of the measurable FACT that under the current Labour laws New Zealand employers have employed so many of us that our unemployment rate is at a record low.

    You employ a person because you hope to benefit from their efforts. This obliges the employer to meet a number of socially and professionally accepted minimum standards and codes of behaviour; exactly as is required in every other aspect of their business.

    Why should the vast majority of decent New Zealanders who do an honest day’s work be placed at such an enormous power disadvantage during the first three months of working for a new employer? In my experience the first six months of ANY new role has been a learning curve; a period of heightened vulnerability while I learn not only the job, but unravel all the unwritten, unspoken politics about the place. The last thing most of us need during that initial period is the feeling that our manager could unilaterally sack us on a whim.

    While this proposal might protect a minority of employers from a minority of bad employees; for the rest of us it’s bad news. (And so much for ‘one size fits all’.)

  119. Phil 119

    “One size fits all’ that IS kind of how most laws work.

    The moment you start to make up exceptions, or complex gradations of application is the same moment the sharp men in sharp suits start working the angles.”

    For once, I actually agree with RedLogix. But s/he needs to remember that not all of us in sharp suits are ‘working an angle’. I just wear the suit ‘cos I make it look good.

  120. Draco TB 120

    But seriously, do you think that the Magna Carta removes the inherent right of a person spending their own (or their companies) money to decide who should work for them and that it denies them some form of ‘testing period’ when they are spending that money?

    The Magna Carta is the base of most of our laws and it doesn’t prevent people from hiring or firing. What it does is ensure that those doing the hiring and firing do so under some rules that help ensure consistency.

  121. slightlyrighty 121

    Question:

    Why not regard the notion of a probationary period as part of the recruitment process?

    Lets be honest. There are those out there who interview terribly. the idea that you can accurately predict who is going to be a good candidate for a given role is great if you have a large, well resourced HR department at your disposal.

    Most small businesses do not. The idea that you can take a chance on an employee and that if it doesn’t work out, then no harm, no foul would be of great benefit to many small businesses looking to grow their business.

    I am sure that such a trial would not, nor should not, remove the obligation of an employer to ensure that any employee, even probationary, is given every reasonable assitance to perform to the required level.

    In all of this I am still reminded of my own employer, who is the most fair minded employer that I have ever worked for, having to take time out of his business, costing him money to engage legal representation, to defend himself in a PG case after he had dismissed a recently hired part time worker who had verbally abused a customer with various four letter words.

    Either through settlements or legal fees, employers get nailed. Larger employers can absorb these costs. $3900 to settle a PG case for a small business could be the difference in a loss or profit situation.

  122. roger nome 122

    Billy:

    “I was addressing ‘nome’s apparent suggestion that the ECA allowed an employer to not pay his or her employees and there be no sanction. Patent nonsense.”

    It did. Some facts that you don’t appear to know.

    1) Under the ECA parties could wait a year or more for mediation and two years for an adjudicated hearing. As a result, many people would just move on, not wanting to be bothered with having that worry hanging over their head for years.

    In contrast, under the ERA the process is quick and easy with the average time spent waiting for a hearing being just 3 weeks.

    2) Under the ECA a typical one day hearing would commonly involve legal costs of $5,000 for each party. So unless your claim(s) involved more than $5,000 in wages in arears it wasn’t economically rational for an employee to seek legal redress.

    The result was that employers could get away without paying employees for weeks, and not face any consequences.

    In contrast, under the ERA mediation is free. So that one’s a no brainer.

    A probationary period would take us back to the days of the ERA, as National has stated that the ERA’s employment institutions won’t apply, and employees will have to seek legal redress for grievances through the civil courts. That means lawyers and a lot of money for low-paid workers, who are the ones who are most commonly screwed over.

    If you don’t believe me, go read the following academic article:

    McAndrew, I., Morton, J. and Geare. A. (2004) The Employment Institutions, in: Employment Relationships: New Zealand’s Employment Relations Act, Rasmussen, E. (ed) Auckland University Press, Auckland.

  123. roger nome 123

    SR:

    “Why not regard the notion of a probationary period as part of the recruitment process?”

    Because it could mean being totally screwed over – i.e. not getting the money that you worked for because you employer decides they don’t want to give it to you.

    “$3900 to settle a PG case for a small business could be the difference in a loss or profit situation.”

    But as Steve points out in his post, that’s a very rare situation that law abiding employers don’t have to worry about.

  124. J Mex 124

    “Most developed countries have this law and the sky hasn’t fallen in those countries.

    This is just patch protection from the EPMU and their bloggers.”

    [lprent: I wearily point out yet again. You are attributing an opinion to a lump of software running on some hardware. Now I realise this may come as a shock to you, but software doesn’t think.

    Direct your criticism to the writer of the post, and I’d suggest that you read the About and Policy sections at the top of the site. It appears you are ignorant about how this site runs.]

    Sorry for the lazy typing.

    In my defence, my guesss would that be that every contributer on the standard would buy into the business owners/baby eaters are mainly into this this legislation so they can strip worker of their rights and churn them every 89 days argument.

    My points still stand, and I will direct them at Steve in the first instance…

    1. It is uneconomic to continually churn employees every 3 months. Advertising, Interviewing and Training all cost time and money. I don’t know one employer who likes the interview and recruitment process.

    2. If you churn employees for no good reason you are just as likley to end up with worse employees every time you churn. Your existing employees are going to get very tired of this very quickly, continually “helping the new guy”.

    3. Recruiters are not going to work with you if you churn employees every 89 days.

    4. The sky hasn’t fallen in, in countries where this has been tried. This is a little like a paid internship. My guess is that Steve would reel in horror at the idea of the overseas unpaid intership and proclaim it to be nothing more than slave labour.

    5. Employees can walk away from a job whenever they feel like it (I was just talking to a friend who did that very thing), while employers have far less freedom.

    6. There are large benefits to the long term unemployed and new job starters in this law. They get a chance to prove themselves in the workplace and the employer can take a calculated risk on them.

  125. J mex. in reverse order.

    6. There’s no evidence that people are being barred from the workforce solely by lack of a probationary period in which they can be fired for no reason (probationary periods with protection against unjustified dismissal are already legal). Incidentally, less than 0.3% of the workforce has been on the unemployment benefit for over a year.

    5. Employers innately have the power in the employer/employee relationship – they own the means of production, they are the gatekeepers to employment, workers need to work to make a livable income. Workers rights law only goes some way to balancing the odds.

    4. I’m not a fan of unpaid internships either – they prevent anyone who dons’t have another means of support from getting their foot in the door to many professions. In other countries the probatioanry period is not a no rights period, you still ahve protection against unjustified dismissal.

    1, 2, & 3. I’m not saying that a significant number of workers will be churned every 89 days. Rather, this law gives licence to a few bad employers to exert great power over new employees (you can be fired for joining a union, refusing to do unpaid overtime, refusing unsafe work etc) and will be exploited by the same kind of people currently exploiting triangular employment relationships to avoid the costs of workers’ rights like sick pay.

  126. Oliver 126

    Hsving actuall worked in a country with a probationary period I can assure you that 99% of the negative comments about National’s policy are irrelevant. NZ unions are going to lose a lot of credibility when this becomes law and their dire predictions are shown to be nonsense.

  127. Oliver. In the country you worked in, could a probationary worker be fired for refusing to work in dangerous conditions? Because that’s what the Nats are proposing.

  128. lprent 128

    J Mex: I post here on the odd occasion. I have no idea how I’d feel about trial periods, I can see good and bad points. However I have run across a few crap managers in my time. I had a look at even more case studies when I did my MBA. If you give some crappy managers a position without some redress then they will abuse it. They will do it on the most vunerable, the young elderly, and the people who have a stand-down period.

    I’d be very loath to have this available if there wasn’t any type of comeback on unprofessional idiots that abuse it. For preference make it a criminal act akin to fraud with a mandatory prison sentence if convicted. Some safeguard like that would probably satisfy me.

    Because you are so sure it wouldn’t be a problem, then there would be no real hassle adding abuse of this provision to the crimes act?

  129. Oliver 129

    Steve,

    Bollocks, safety laws will still apply. As I said earlier you’ll look pretty silly in a year or so, just ask people with actual experience of probationary laws.

  130. RedLogix 130

    Oliver,

    Safety laws may well apply; but the useful application of them still requires that both employer and employee act in good faith to make them work.

    The kind of employer that worries me will pressure people to take shortcuts and take risks when they think no-one will notice. 99.99% of the time they get away with it.

    It’s only when Mum or Dad doesn’t come home one night that the penny drops. But then it’s too late isn’t it?

  131. Oliver 131

    Redlogix,

    I’ve been around a few workplace accidents in my time. None of them have come from fundamental safety issues, they’ve all come from worker stupidity or laziness.

    Protections will still apply, if a worker is pressured to take shortcuts they can just contact OSH.

  132. Tane 132

    Oliver, re: safety laws. This is the Australian experience.

  133. RedLogix 133

    Oliver,

    None of them have come from fundamental safety issues, they’ve all come from worker stupidity or laziness.

    If worker ‘laziness and stupidity’ is the SOLE cause of industrial accidents; then why has the workplace death rate dropped over 60% in the last few decades since the introduction of comprehensive H&S systems? If your claim were true, then all those new safety measures and systems put in place by employers in that time would have made very little difference.

    Or are you claiming that workers have gotten less lazy and stupid in that time? And if this is true would you be happy for them to be paid more as a result?

    Protections will still apply, if a worker is pressured to take shortcuts they can just contact OSH.

    And a week later… bye bye job.

  134. burt 134

    RedLogix

    “One size fits all’ that IS kind of how most laws work.

    For a few examples of where you are wrong about ‘how most laws work’ think about tax laws, Shop trading hours (I can buy petrol but not plants or alcohol on Easter Sunday!), speed limits, parking fines, postal rates, freight charges, RUC, assault laws, private property laws, drug laws.

    I agree everybody should be treated equally under the law (I’m an idealist I know) but I don’t agree the law should homogenise the things it controls into as few rules as possible or just one.

    Badly drafted laws or laws drafted to distort ideologically unpleasant natural orders (eg progressive tax laws) is what invites the sharp men in sharp suits to work the angles. Simple identification of different circumstances under the law IS the law reflecting the real world, which is the way it should be. No good will come from attempting to change the real world because political parties haven’t got the balls to back down on a belligerent ideological stance taken years ago to defeat the oppositions policy.

  135. Oliver 135

    Redlogix,

    I didn’t say that laziness and stupidity are the sole cause of all workplace accidents, only the one’s I’ve witnessed.

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