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EEO Commissioner blasts employment law changes

Written By: - Date published: 7:33 am, November 1st, 2014 - 43 comments
Categories: business, capitalism, class war, workers' rights - Tags: , , ,

A sad day for New Zealand workers on Thursday:

Right to smoko removed

A law change bringing in far-reaching workplace reforms, including the removal of the statutory right to meal breaks and smokos, has passed its final hurdle in Parliament today.

Equal Employment Opportunities (EEO) Commissioner Jackie Blue – who happens to be an ex Nat MP – posted yesterday on the Human Rights Commission Website. Blue saw some positive aspects to the law change (e.g. “the right for all to request flexible work hours”) but was highly critical over all:

“Unfortunately this Act is a step backward from New Zealand’s compliance with international human rights obligations to protect worker’s rights. New Zealand regularly emerges as one of the least regulated labour markets in the world. It is difficult to understand the justification for even further deregulation,” Dr Blue said.

“The Act weakens the ability of unions to negotiate on behalf of workers. This is likely to be detrimental to the role of unions in advancing fairness and equity.

“The Act now enables employers to walk away from collective bargaining. Such a change undermines New Zealand’s longstanding commitment to the rights to freedom of association and collective bargaining.

The result could be a less collaborative and productive workplace where mutually beneficial agreements can no longer be freely negotiated, invariably impacting on economic development and prosperity.

I think Blue has done an excellent job of summarising the consequences (there’s more in the full piece). This is the choice that National has made, as the first legislation of their new term, to trade off these consequences for the few extra pennies that unscrupulous employers can screw out of mistreating their workers.

43 comments on “EEO Commissioner blasts employment law changes”

  1. Skinny 1

    Blue is giving opposition MP’s a good platform here to get some publicity. I see nothing as yet on Facebook which is disappointing. Come on Little, Roche, NZF ( whoever is the spokesperson these days). With National indicating further changes are coming we need our MP’s kicking up merry hell.

  2. One Anonymous Bloke 2

    Time for a shakeup at the EEO Commission to bring it into line with neo-flexibility.

  3. tc 3

    What does Jackie know that makes her feel protected as she went very quietly from parliament to this sinecure.

    Its just noise the govt will shrug off while the sheeple could mis interpret it as genuine criticism when its more of the 2 track strategy that is working so well.

  4. Paul 4

    What did she say about this when she was an MP?

  5. sgthree 5

    Why do people persist with the lie that the legislation removed the statutory right to tea breaks? The clause relating to rest and meal breaks opens with the words “An employee is entitled to, and an employer must provide the employee with, rest breaks and meal breaks ….” The regular readers and contributors to this blog may not like the fact that some exceptions have been introduced, but why not be honest about it. Why not say that the statutory right to a meal / rest break has been modified, instead of lying and saying it has been abolished. It hasn’t been abolished any more than the 100kph open road speed limit was abolished when parliament passed legislation permitting emergency services to travel faster in limited circumstances.

    • Skinny 5.1

      Cause most people would relate a meal break to a lunch or if working nights a dinner break. They are ‘workers time’ not paid by the boss. Make no mistake the employment law changes is an attack on workers wages, driving down incomes in other words. It is a softening up for trade agreements like the TTPA.

      The Tories in the UK are on their way out the door and have implemented similar nasty attacks on workers over there. Recently large groups of workers walked off the job, ignoring the Law. This is what needs to happen here, Unions can’t exactly promote this as National would love nothing more than for this. Workers need to make an individual choice to say Fuck You John Key and walk off the job!

    • Tracey 5.2

      cos some peo
      le understand the power difference between some employers and employees and that employees”agree” with something that they dont want to keep a job.

    • ghostwhowalksnz 5.3

      Then why change anything with the law if as you say ‘nothing is changing’

      Its the agenda stupid !

    • Clemgeopin 5.4

      So, why was the NEED to change the law as the previous arrangement under the Employment Relations Act was working just fine? The new law simply makes the employers all powerful and puts the lowly employees on the back foot. Don’t you see that?

    • It’s not a lie, sgthree, and you yourself are lying by omission when you quote one clause and leave out the next one, which says:

      “An employer is exempt from the requirement to provide rest breaks and meal breaks …”

      … and goes on to explain the exceptions (all of which anyone with a modicum of cunning can figure out how to exploit.)

      Comparisons of the previous law and the new one are screencapped on Helen Kelly’s Twitter. I suggest you withdraw your spin.

      • sgthree 5.5.1

        I disagree Stephanie.

        For a start, I did not lie by omission. If you look at 7.1.1 you will see I mentioned the exclusion clause. In fact not only did I mention it, I actually summarised it using the words from the Bill, rather than describing the exception inaccurately as a “unless the employer finds it inconvenient” rider as Psycho Milt did.

        The starting point in the legislation is that every employee is entitled to rest / meal breaks, and the employer is obliged to provide them. The Act then details situations where that is not the case. There are only two, where employer and employee agree, and where it is unreasonable given the nature of the employees work. The second exception is prefixed by the words “only to the extent that”, which indicate that the exemption is to be interpreted narrowly.

        Just because there is an exception does not mean that the right to a rest / meal break has been abolished.

        A parallel can be drawn to the Land Transport rules which provides for speed limits on our roads. The rules also provide for exceptions, where those limits can be broken. Just because there are exceptions does not mean there are no limits, and it would be completely wrong to say that the Land Transport rules have abolished speed limits.
        No doubt it suits the left’s narrative to over dramatise the changes. The simple fact remains though that workers in New Zealand still have a statutory right to meal / rest breaks. You can not disagree with that unless you can establish that no New Zealand worker has the right to rest / meal break, and the legislation simply does not support that assertion!

        • Murray Rawshark 5.5.1.1

          You are a blatant liar. We can all read what you wrote. 5.1 comes before 7.1.1. It’s still there. Your original post didn’t mention anything about exemptions. Do you think we’re all as stupid as the young NActs you’d find at a princess party?

          • sgthree 5.5.1.1.1

            Sorry Murray, I am not, and not one of you have understood a single thing that I have said. The simple fact is that just because an exception has been introduced does not mean that the underlying right has been abolished. It hasn’t. The underlying right to a tea break is still there, but there is an exception. There is nothing inconsistent with what I have said. I never said nothing had changed.
            For the vast majority of New Zealand workers the change will have no effect. They still have rights to rest / meal breaks, and to tell them that right has been abolished is just scaremongering.

            • Lanthanide 5.5.1.1.1.1

              No, they don’t have *a right* to a teabreak. It goes like this:

              A) In 2008 you start a job, and the employment contract outlines the tea and meal breaks that must be given to you under law. Everything is fine.

              B) In 2015, you start *exactly the same job for the same employers*, and the employment contract says that you agree not to take tea breaks and meal breaks, and that the compensation is built into the base pay rate of the job. When you question this with your new employer, they tell you “if you don’t agree to this provision, then we’ll give the job to someone else”.

              Under A you have a right to a tea break. Under B there is no right to the tea break, because if you refuse to agree, you don’t have a job at all.

              Now, B is not the default position, and many employers wouldn’t act that way, and in some industries (skilled, white-collar, or heavily unionised ones) it won’t really be possible. But this will be reality in low-skilled industries where employees have little bargaining power.

  6. Aerobubble 6

    In reply, they argue that nothing much has changed, as all negotiations will be done in a good faith way. After listening to a employer negotiator on NZ, as he cited how we need free markets, how much he love the invisible hand of AdamSmith, and how our minimum wage is higher than most. If that’s good faith bargaining then there isn’t any in NZ. Its called a risk premium, its has positive and negatives. Its positive in a GFC in that we pay higher interest and so are more likely to get bailed than those who can’t even pay lower repayments. Negative in that funny enough we don’t regard risks as we are already paying a premium. A risk premium thus make our business class lazier about risk, buffered. Now a risk premium does not just appear out of nowhere, its legislated. Distortions with the tax regime of Oz, no CGT, so much for the invisible hand the iron glove of big government more like. A distortion in the market introduces a risk premium that creates a higher demand for our dollar, making imports cheaper and exporters having to do better, but also makes our minimum wage look higher. So low paid minimum wage workers, living hand to mouth, who if they could afford imported goods, have to pay more in overheads of retailers who live wita risk premium.
    So what goog with bargaining, they say they are free marketeers, they rejoice in the invisible hand, and they make the poorest carry them, and to add to it argue the poorest have it better!

    Now add to how dirty politics has shown their sociopathic economics is reinforced, stood over, dissidents and you have proof. There is no such thing as good faith bargaining in NZ. When the base line norm for what passes for economics is lies.

  7. sgthree 7

    Skinny, I am wondering whether you misunderstood my question. I am not expressing a view on the merit of the change to the legislation, I am puzzled as to why commentators lie about the effect of the legislation. Everywhere you read that the statutory right to meal / rest breaks, smoko, call it what you will, has been abolished when in fact the legislation does not abolish that right.
    So either you misunderstood my point, or you are saying that it is ok to lie about the effect of the legislation because you disagree with it. I don’t have a problem with people disagreeing with the legislation, but I do have a problem with lying and false reporting.

    • The commentators are not lying, because the Bill does abolish the right to meal/rest breaks. The Act will still proclaim a right to meal/rest breaks, but the Bill introduces an “unless the employer finds it inconvenient” rider, which makes the term ‘right’ incorrect.

      The summary of changes doc is quite clear about the conditions under which your “entitlement” to breaks the employer “must provide” simply disappears. The employer “may impose certain restrictions” if they believe the “nature of the work” justifies it. In the absence of agreement on times/durations of breaks, the “employer may specify” times/durations that suit them. There is no “right” or “entitlement” left in there.

      • sgthree 7.1.1

        and there you go doing exactly the same thing. The bill did not introduce an “unless the employer finds it inconvenient” rider. It says that the employer is exempt from providing breaks if, given the nature of the employees work, employer cannot reasonably provide the employee with rest breaks and meal breaks. The way it is worded, this is an objective test. It has nothing to do with whether the employer is inconvenienced or not, it has everything to do with whether, looking at the situation objectively, it is reasonable or not.

        • Tracey 7.1.1.1

          if its an objective test can you list the criteria to measure it?

          is “nature of employees work” and “reasonable” defined in the Act?

          is access to legal services to test it free to employees?

          • sgthree 7.1.1.1.1

            Tracey – you are departing from my point, which is the accuracy of the reporting, and moving into the area of trying to criticise the actual change to the law. None of the three questions you have asked have any bearing whatsoever on the issue as to whether it is correct to say that the legislation abolished the statutory right to smoko, or whether Psycho was correct in saying that the legislation had an “employer finds it inconvenient rider”. I get it that you, and just about everyone else here, don’t like the change. What I don’t get is why you have to misrepresent the change.

            • Tracey 7.1.1.1.1.1

              you dont set the parameters of the discussion. as part of proving your point you suggested an objective test. i am asking simple questions about your belief that an objective test is the yardstick. if you dont know say so.

              you put forward this

              “. It says that the employer is exempt from providing breaks if, given the nature of the employees work, employer cannot reasonably provide the employee with rest breaks and meal breaks. The way it is worded, this is an objective test. It has nothing to do with whether the employer is inconvenienced or not, it has everything to do with whether, looking at the situation objectively, it is reasonable or not.”

              i chose to comment on it and you decided the point you made was irrelevant to the point you are trying to make so decided to not answer. cool, but you dont get to determine what i do or dont write anymore than i can tell you to stop presuming you know how the courts will interpret the changes and if anyone can afford to challenge them.

              go and look back through every employment change this govt has made since late 2008 and at theit “selling” of each change. then you will start to get behind the motivation of some here who dont trust that the practical outcome will be simply what you think the words say.

              • SGThree

                Sorry Tracey, I do get to set the parameters of what I am discussing. You can debate the merits of the change all you like, but don’t think for one moment that debating the merits of the change is addressing the issue I have raised, which is the accuracy with which the change has been described.

                I stand by my view that the amendment act did not abolish the right to meal / rest breaks, and that people who say it did abolish that right are being economical with the truth. If it were true that it did abolish that right, it would be true to say that no employees in New Zealand have any rights under the Employment Relations Act to a rest / meal break. That is clearly not the case.

                • Lanthanide

                  “it would be true to say that no employees in New Zealand have any rights under the Employment Relations Act to a rest / meal break.”

                  Nope, because the way the law is written, there are certain things that an employment contract cannot overrule.

                  Meal breaks can now be specifically overruled in any employment agreement under the figleaf of “mutual agreement”. It used to be that you had irrevocable right to meal and tea breaks no matter what your job was. Now, it is possible to agree not to have meal breaks and tea breaks, so they go from irrevocable rights to merely negotiable conditions of employment.

                  Also the counter-argument to your silly point about emergency vehicles going faster than the speed limit doesn’t mean we don’t have any speed limits:
                  Do you agree that employees have the right to a company car? I suspect you would *not* agree with that statement. Company cars can be negotiated as part of an employee agreement, they are not automatically a right of employment. Which is exactly the situation that meal breaks are now in – they are a negotiable item of an employee agreement, not an automatic irrevocable right.

        • Psycho Milt 7.1.1.2

          The way it is worded, this is an objective test.

          That is straightforwardly wrong – no objective test is described.

          It has nothing to do with whether the employer is inconvenienced or not, it has everything to do with whether, looking at the situation objectively, it is reasonable or not.

          Who is the supposed objective observer who decides what’s reasonable? There are three possible candidates: the employer; the employee, who gets to agree to the employer’s terms or do without a job; or, various external agencies such as courts, which can be engaged only at considerable expense of finance, time and effort to the parties involved. Effectively, what’s reasonable will be determined by the employer in almost all cases, and the employer’s convenience will loom large in that determination.

          • sgthree 7.1.1.2.1

            perhaps you misunderstand what I mean by objective. By objective, I mean that it has to be reasonable from the point of view of an outsider looking in, rather than subjective, which is seen through the eyes of the employer. The test is not whether the employer things it is reasonable, but whether it IS reasonable.
            As with all things, the ultimate arbiters are the courts.
            Your argument that an employee is disadvantaged if they have to incur expense going to court for a ruling as to what is reasonable holds no water. Exactly the same situation applies if meal breaks are mandatory, but an employer refuses to give them.

            Edited to add – and for the record, yes the objective test is described – it is ‘having regard to the nature of the employees work”

            • Tracey 7.1.1.2.1.1

              and is that defined by the Act? you are dancing on the head of a pin.

              the law is a bunch of words which until tested in court have whatever meaning an employer wants to give them. the test is which employees can afford to legally challenge their employers interpretation and that in a low skilled job the power imbalance is enormous, as is the ” i can replace you easily ” threat.

              intellectualise the meaning YOU put on the words, play word games all you like but it is the practice of the change that is important and that is why its been made, to CHANGE tea break entitlements and for some it is likely to mean they get fewer or none.

              • Wayne

                Tracey,

                It is not correct to say “the law is a bunch of words which until tested in court have whatever meaning the employers wants to give them.”

                The law will also be interpreted by the employers lawyers and the employees (in most cases union) lawyers well before the issue ever gets to a Court.

                We don’t really live in an Alice in Wonderland word where words have whatever meaning you want to give them

        • MrSmith 7.1.1.3

          Actually sgthree framing the argument around the loss of tea breaks is a great start for the left, whether it’s true or not, about time the left started to play the game the Nacts have been playing all along, remember Nanny State! or the Fart Tax! the hysteria over Light Bulbs and shower heads, how about the Loopy Greens! all of these are untrue but that’s not what the general public here.

          So yes it needs to be shouted out, the first thing National did when re-elected was ‘steal our tea breaks’ that should be the mantra from the left for the next three years!

          • fisiani 7.1.1.3.1

            Please let that be the mantra. Everyone will still have tea breaks and it will be seen yet again to be crying wolf. WOLF

            • MrSmith 7.1.1.3.1.1

              Simple you then just twist the chant a little ‘the first thing National tried when re-elected was attempt to steal our tea breaks’. Anyway you won’t need to, because it’s all about perception and the fact everyone doesn’t know everyone else, but I’m not telling you anything you don’t already know.

      • PM – I didn’t see you comment when I left mine up at 5.5! Nice to see others smacking down the spin. 😀

  8. RedBaronCV 8

    This sort of legislation also further lowers the quality of our managers. If you can be as lazy and selfish as you like as a manager then the rest of the world starts getting treated in the same way.It also gives lazy selfish people an advantage when manager appointments are made.

    So if people like this can’t/won’t can’t organise a break for their workers then they are almost certainly cutting corners elsewhere which ultimately threatens the business survival.

    • KJT 8.1

      Our management and investors are already low quality. When you can increase profits simply by screwing your workers a bit more, there is no incentive for better management or more capital investment.

      It is most obvious in cleaning and aged care businesses. The winner is the one who can cut costs the most.

  9. Andrew Welsh 9

    National Party Election Policy 2014:

    7. Complete the passage of the Employment Relations Bill to ensure flexible labour markets that create more jobs for Kiwis.

    Its not the choice National made (as described by Anthony Robbins) but the choice the voters made. Looks like the minority lefties will spend the next 3 years trying to lever the giant chip off their shoulders and anyone who dissents is described by readers to this site as lazy, selfish, liar, Tory etc.

    • Tracey 9.1

      yup, removing tea breaks from some will create a landslide of new jobs. it bothers me how stupid 47% of voters are and that they may be breeding.

  10. Sable 10

    Keys is an incompetent fool hell bent on the ugly Americanization of every aspect of our lives. He might as well have put a placard in the ground with an arrow: “Airport and Australia this way.” Best he hopes the global economy does not pick up anytime soon or there will be no one left to fund him and the other parasitical turncoats in Parliament.

  11. Observer (Tokoroa) 11

    To sgthree

    It is very good of you to explain that in your opinion there has been no significant change to the Employment Legislation.

    You keep saying that all employees will have the long established rights to Meal breaks and Tea breaks, including rest breaks. Your actual words are:

    “The starting point in the legislation is that every employee is entitled to rest / meal breaks, and the employer is obliged to provide them. The Act then details situations where that is not the case.”

    Are you always comfortable with outright Contradictions? You have, out of political loyalty, completely broken the First law of Logic. refer Logica, Aristotle.

    It seems to me, either there is a right to Rest breaks, Meal and Tea breaks or there is no right. Could you clarify what you actually mean? You seem to be tied up in knots.

    Do you mean, there is a possibility of having a right to the said Rights above? Or do you mean that for an unknown number of employees, there is no such entitlement?

    Do you always get tied up in difficulties when reading the output of your political party Sgthree ? It is certainly strange of you to be tut tutting about other commenters, when you seem rather far up the creek yourself.

    Keep paddling for the Party sgthree.

    • sgthree 11.1

      Observer, where did I express an opinion that there had not been any significant change? I may have said that the left over dramatise the change, and I may have said that the change will not have much effect on the vast majority of workers, but nowhere have I said that I don’t think the changes are significant.

      You have referred to my comment that started with the words “The starting point in the legislation…..” and you ask me to clarify what I mean. The easiest way to do that is to reproduce here the words of the Bill, for that is where I am getting my information – not from any political party, but from the actual legislation.
      The sections in the act dealing with meal and rest breaks start at section 69ZC.
      The current section 69ZC is replaced with a new interpretation section, and then a new 69ZD is inserted reading:

      “69ZD Employee’s entitlement to rest breaks and meal breaks
      (1) An employee is entitled to, and an employer must provide the employee with, rest breaks and meal breaks that—
      “(a) provide the employee with a reasonable opportunity, during the employee’s work period, for rest, refreshment, and attention to personal matters; and
      “(b) are appropriate for the duration of the employee’s work
      period.

      That is my starting point. That is the legislation’s starting point. Employees are entitled to, and employers must provide, rest and meal breaks. It is there in black and white. No spin.

      Tell me, did you read the actual legislation before commenting, or are you basing your understanding of the law change on other peoples comments?

  12. Observer (Tokoroa) 12

    To sgthree

    It is a great step forward for you to acknowledge that the change to the Employment legislation is a real change.

    I asked you to clarify the nonsense you wrote, namely:

    “The starting point in the legislation is that every employee is entitled to rest / meal breaks, and the employer is obliged to provide them. The Act then details situations where that is not the case.”

    They are your words. Explain them.

    This may be stretching our cordiality a little far, but in a situation of negotiation between an employer and and an employee, who is holding the most goodies and exercising the most power Sgthree?

    If you find this a difficult question don’t bother answering it.

    Thank You

  13. sgthree 13

    To Observer

    If you read what I wrote, and read section 69ZD, you will see that I did not write nonsense, I wrote a succinct summary of the section. I am not going to explain my words, for they need no explanation. My statement is written in plain simple english and if you can’t understand what I am saying, then I am at a loss to know what further help I can provide to you.

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