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Sacked

Written By: - Date published: 4:13 pm, July 7th, 2008 - 94 comments
Categories: national, same old national, workers' rights - Tags:

In perhaps the most unsurprising announcement of the year, National has let slip it’s going to maintain its 90 day no rights policy, which basically means your boss can sack you for whatever reason he likes within the first 90 days of your employment.

Don’t be fooled by the spin there’s already a provision for probationary employment in the law provided there is a fair process. National simply wants to remove the fair process.

They’ve softened it a little apparently there are going to be some safety mechanisms to ‘prevent exploitation’, but as usual there’s nothing on their website outlining what this would mean in practice or how a sacked minimum wage worker would enforce their rights.

It’s also been restricted to small businesses with fewer than 20 staff, which are ironically some of the worst employers and where workplace protections are needed the most. This would also apply to seemingly large employers like Subway, whose smaller individual franchisees would be free for example to sack an autistic worker for taking a sip of a free cup of coke. I guess that’s what National means when they talk about ‘giving opportunities to those at the margins of the labour market’.

It must be remembered that while all you hear from National these days is criticisms about how hard it is for average Kiwis to buy cheese and pay for petrol, the one workplace policy they’ve come out with would make it harder for workers to improve their pay.

We tried this path before and for most workers it meant wages failed to keep up with the cost of living because their rights at work had been stripped away from them. The result was our low wage economy, our lagging productivity and the opening up of the 30% wage gap with Australia. I’d be interested to hear why National thinks it would be any different this time.

Word is the Nats are going to release some more workplace relations policy over the next couple of weeks while Parliament is in recess. If the past is anything to go by they’ll be nothing more than bullet points filled with say-nothing words like ‘flexibility’ and ‘choice’. Call me old-fashioned, but I think working people deserve a little better than that.

[Oh and for anyone tempted to whinge about the personal grievance ‘gravy train’ have a read of this DoL report (PDF). Turns out it’s a myth.]

94 comments on “Sacked”

  1. “I warned you about that tie mate. You’re sacked. Get out!”

    So National will be legalizing THAT?

  2. Tane 2

    As I understand it, yes. Similar things happened in Australia under WorkChoices.

    [Captcha: Magnificient comrades]

  3. burt 3

    Tane

    Don’t be fooled by the spin there’s already a provision for probationary employment in the law provided there is a fair process. National simply wants to remove the fair process.

    The current process that most seem to use today is as follows;

    1) Advertise for a temp, when you interview the temp ask them if they would consider a permanent job if one were offered – explaining that there are no positions available today but there might be in the future.

    2) Hire the temp that best fits the role and who might consider a permanent job. If they are any good – offer them a full time job. If they are not – go back to step (1).

    Perhaps that’s not the probationary period that you were thinking about, but hey 1-2 weeks of hiring a temp beats waiting 90 days…

  4. Monty 4

    Looks like that while you guys whinge and want to stop people even having the prospect of a job and being able to prove themselves, John Key has yet again hit “paydirt” and understtod what the people out there beyond the beltway really want. Yes a staggering 77% according the the unscientific Herald poll support this policy. The other 23% don’t support the policy.

    So John Key again proves he understands the people on NZ and what makes them tick, while Labour can only sit back and cry., Oh well you still have 3 months to try and turnaround the worst defeat in Labour History, but as long as Labour avoids releasing policy, they have no chance at all.

  5. Tane 5

    Monty, you know the bit where you say “according the the unscientific Herald poll”?

    Well, right there you kind of discredit your entire argument.

  6. bill brown 6

    “We interviewed five small business owners with an axe to grind…”

  7. burt. My understanding is that what you’re describing is illegal (and I know it happens a lot but it’s still illegal). If you hire someone to do a job on a fixed term basis and that job still exists at the end of the term you can’t let them go and replace them with someone else, they have a right to continue in the job if it stills exists. Otherwise, we could all be employed on successive one month temporary contracts.

  8. coge 8

    It’s the absence of laws like this that have prevented many small businesses from hiring more workers. Unless you have a warped view of what small employers realities actually are. Strangely enough unions have a hard time enlisting small business staff. Remember not all employees are saints either.

  9. Not to mention those this bill would effect are either:

    a) At work now.
    b) Are busy with other things like raising their families.

    Online polls are never accurate and are open to stacking (as I’ve pointed out on NewZBlog many a time).

  10. burt 10

    Steve P.

    I don’t do it myself so I can’t be sure if it’s illegal or not. If I were doing it I would check it out more carefully.

    But hey, if lots of people are doing it and the law is a little confusing then surely nobody can be expected to follow it… It wouldn’t be fair to single out one offender and clearly it needs to be changed to match the way things are being done… the status quo as defined and managed by the law of common sense – and applied to alleged indiscretions of electoral funding laws… Good enough for the people who write the law – good enough for all people who need to follow it…

  11. Tane: “The result was our low wage economy, our lagging productivity and the opening up of the 30% wage gap with Australia.”

    Productivity decline has occurred under 9 years of Labour so clearly what Labour has done isn’t working.

    [Bryan. Leave the lies at interest.co.nz, productivity has risen in the last 9 years. Labour productivity is up 16%, despite our bouyant labour market pulling in a lot of lower producitivty workers over that period. SP]

  12. It’s the absence of laws like this that have prevented many small businesses from hiring more workers.

    If they can do their taxes they can follow employment law. It ain’t hard. If they can’t then they should ask themselves if they should really be in business – after all, as Roger Kerr points out, “The greatest freedom of the free market is the freedom to fail.”

    If these chumps are too dumb to negotiate some of the most liberal employment law in the OECD it’s time they went back to working for the man…

  13. djp 13

    I guess the guts of it is two opposing viewpoints.

    1) Employment is a right

    2) Employment is a privilege

    I just dont see how anyone can subscribe to viewpoint #1.

    Imagine if you hired a plumber and they totally screwed up your plumbing. You want to get rid of the plumber and hire someone else to fix the mess but the govt forces you to keep the old plumber and continue paying him.

    This to me seems to be the end if if viewpoint #1 is followed to its logical conclusion.

    Frédéric Bastiat: ‘If you want to know something about the moral status of a state action, you have to think, “What would we think about it if a private person did the same thing?”

  14. Tane 14

    It’s the absence of laws like this that have prevented many small businesses from hiring more workers.

    Odd then that unemployment’s at 3.6%, effectively as low as it’s ever been in the history of New Zealand.

    Strangely enough unions have a hard time enlisting small business staff

    It’s not that they can’t recruit workers in small businesses, it’s that the enterprise bargaining model the ERA encourages makes it uneconomic for unions to recruit there. I’ve covered this in other posts, including one linked in the article.

  15. burt. from the DoL: “Note, however, that employers must have genuine reasons for the fixed term. An employee cannot have a fixed-term arrangement when the job is really a permanent one” “An employer may not employ someone on a fixed-term agreement where the job is really a permanent one and the employer really wants to avoid having to go through a fair disciplinary or dismissal procedure if there are problems.” http://ers.govt.nz/relationships/fixed.html

  16. Productivity decline has occurred under 9 years of Labour so clearly what Labour has done isn’t working.

    Bryan you retard – productivity is a ratio of inputs to outputs. Nothing more, nothing less. If you continue to argue it the way you do the last of your, already meager, economic credibility will go down the toilet.

  17. djp. get away from wooly principles for a moment and think about the realities of workers. They need to work to earn a living income, there are lots of them compared to the number of employers. that means they are in perfect competition with each other and subject to an unequal power relationship with the bosses. National’s bill would tip that balance more in fovur of the bosses and expose workers to abuse.

  18. T-rex 18

    Not quite DJP, the two perspectives are more like:

    1) Fair treatment by your employer is a right
    or
    2) Fair treatment by your employer is a privaledge

  19. djp – is property ownership a right or a privilege?

  20. Tane 20

    Productivity decline has occurred under 9 years of Labour so clearly what Labour has done isn’t working.

    Productivity has not declined. Its growth hasn’t been as high as I’d like to see though. Part of that’s because we have a low wage economy and no incentive to invest in improving productivity, part of it’s because a large number of relatively unproductive workers have been absorbed into the labour force.

    Of course, you could try the method National used in the 1990s – cut the cost of inputs (like labour) so the ratio to outputs improves, but the reality is it’s unsustainable because you can only cut inputs so far. It’s also hard to advocate that course of action while claiming you want to raise wages rather than see them drop.

  21. djp 21

    T-rex, no employer can force any employee to do anything. An employee can quit any time they like so in that respect it is hard to argue about “fair treatment”

  22. burt 22

    Steve P.

    You could drive a bus through that…. But that wouldn’t be required because as I said above: If the law isn’t aligned to the current practice then the current practice is more important. Labour’s behaviour with the ’05 election spending debacle proved that, the law was unclear and didn’t match what people were doing – Validate the current actions…

  23. djp 23

    Robinsod: not sure if that makes sense, in terms of the abstract concept of property ownership yes.

    Would you be displeased if a bunch of people walked into your home and “terminated” your property ownership privilege?

  24. oh and Frédéric Bastiat is an idiot – ‘If you want to know something about the moral status of a state action, you have to think, “What would we think about it if a private person did the same thing?”

    if we adopted that reasoning we wouldn’t have a judicial system, a military, a tax system. There are clearly times when we collectively do things that it would be inappropriate for individuals to do. Because we are giving up individual soveriegnity and giving powers to society through the State in the interests of having a functioning economy and civilised society, it’s important that the State is answerable to us, which is why we have the rule of law and democracy.

  25. burt: “If the law isn’t aligned to the current practice then the current practice is more important.” Because some people break the law now we should alter the law? Why apply that reasoning to abuses of employees’ rights but not to, say, white collar crime or arson?

  26. fraser 26

    cant you just hire someone on a trial basis (for 90 days even) and then have the position switch to fulltime after a review of said trial period?

    Im pretty sure that its legal, given our individual contracts system. – tho it could be thorny in unionised workplaces

  27. burt 27

    Steve P.

    Why apply that reasoning to alleged abuses of electoral funding laws but not to, say, abuses of employees’ rights?

    This is the question I’m asking.

  28. Leftie 28

    Why would I, as a worker, vote for that?

    Online polls: I don’t think the average worker has time or access to vote on these polls. These current results would be biased as it would be those hard working managers voting on them all day.

  29. Steve: “Labour productivity is up 16%,” Username & password please for that locked file you have linked to.

    Steve/Tane/Robinsod: I think we need to be using the real productivity figures not the ones that Michael Cullen spins that don’t include the public sector.

    [Tane: I can access it fine.]

  30. vto 30

    I recall a few weeks ago there was an exchange about this on here and we all came to some sort of agreement about how a probationary period could be put in place (which is what employers want) while still being able to cover off those risks that the labour movement worries about (which is what employees want).

    I wouldn’t have a clue (and have no time today) how to find it, but I’m sure we all agreed that this entire problem got solved in that thread. Anyone else recall?

  31. Oliver 31

    I spent 6 months working in Ireland a while ago. I only got my job because of the probation period and a lot of other employees were the same. Essentially we were a range of foreigners with limited relevant experience. Most of us stayed in employment after 90 days but two absolutely useless lazy plonkers got the boot and were replaced with two Chinese immigrants that hadn’t been able to find work until then.

    I left after 6 months to continue travelling but my employer had offered to sponsor me for a more permanant visa (I was on a working holiday visa).

    My boss, who ran the family business founded by his late parents, was absolutely upfront that he wouldn’t have hired any of us without a probationary period.

  32. Draco TB 32

    Yes a staggering 77% according the the unscientific Herald poll support this policy. The other 23% don’t support the policy.

    I’d say that that poll is probably a better reflection of the people who read the NZHerald than what the population as a whole thinks. Basically it’s saying that 77% of the readers of the NZHerald are RWNJ and 23% are reasonably intelligent and thoughtful people.

    😛

  33. Lew 33

    Leftie: “Why would I, as a worker, vote for that?”

    This is precisely the point: if you were rational, you wouldn’t.

    If the electorate (primarily made up of workers, not of managers or hirers) is rational, it won’t.

    What’s needed to ensure a rational reaction is for the labour movement to spell out in no uncertain terms the potential effects of these measures.

    L

    Captcha: `Douglas rations’. This thing is frighteningly good.

  34. vto 34

    Lew “Leftie: “Why would I, as a worker, vote for that?’

    This is precisely the point: if you were rational, you wouldn’t.”

    Isn’t that argument self-defeating. Otherwise the workers would all vote for a party with a 50% pay rise policy every election and business be damned. The tyranny of the majority. No?

  35. Billy 35

    What is it you guys think employers are going to do? Employ a series of people for 90 days and sack them at the end of it? Why? So they get the full benefit of the first 90 days of the employees’ employment (when they don’t know shit and you have to spend half of your own time explaining what they have to do). Then, just at the moment the employee understands how to do the job, the employer will sack them (obviously for wearing the wrong tie) so that the employer can have the joyous experience of going through the same process with another numpty.

    Why would someone do that? I do not understand.

  36. Scribe 36

    Billy,

    Thanks. I thought I was going to get all the way through this thread without someone making that point exactly. It would be idiotic for someone to create this 89-day merry-go-round with employee after employee.

    Anyone who’s had the responsibility of hiring new staff will attest to the fact that it’s a pain in the butt and the last thing anyone wants is more interviews and reference checks.

    I’m sure if you graphed staff retention rates and productivity rates, they correlate quite nicely. Institutional knowledge and all that.

  37. Lew 37

    vto: “the workers would all vote for a party with a 50% pay rise policy every election and business be damned.”

    Reductio ad absurdum. All but the most economically illiterate (or rabidly socialist, amounts to the same thing) workers can see the collateral effects of such huge changes; it’s categorically not the same as resisting a change which, for a small benefit to employers visits significant harm on employees; especially those already most poorly-paid and treated (see below). What I’m talking about isn’t a change: it’s resisting a change. Inertia is on the workers’ sides here.

    Billy/Scribe: “What is it you guys think employers are going to do? Employ a series of people for 90 days and sack them at the end of it?”

    Yes.

    “So they get the full benefit of the first 90 days of the employees’ employment (when they don’t know shit and you have to spend half of your own time explaining what they have to do).”

    Doesn’t follow. You seem to be under a delusion that all jobs are unique, beautiful flowers. In my industry and some others that’s largely true, but there’s plenty of generic work: once you’ve worked 89 days behind one bar, on one roading/forestry/labouring gang, behind one reception desk, in one data-entry farm, you’ll find it pretty easy to pick up any other. Hence the popularity of temping agencies. (and yes; I’ve done all these jobs, and more, except roading and forestry).

    Please tell me you’d genuinely not thought of this and aren’t just faking innocence? I thought you guys were some of the decent ones.

    L

  38. Billy 38

    Lew,

    What advantage to the employer is there in sacking someone who is perfectly capable of doing one of the non-flowering jobs and taking a risk with someone new?

    I have yet to meet an employer who enjoys the process of sacking or employing people. I do not understand why one would voluntarily submit oneself to that process. And what the employer would be gaining as a result.

  39. Billy 39

    I am in moderation. My comment contained no links and no reference to porcine carnal knowledge.

  40. Ben R 40

    “I spent 6 months working in Ireland a while ago. I only got my job because of the probation period and a lot of other employees were the same. Essentially we were a range of foreigners with limited relevant experience. Most of us stayed in employment after 90 days but two absolutely useless lazy plonkers got the boot and were replaced with two Chinese immigrants that hadn’t been able to find work until then.”

    I think Oliver’s comment above highlights how this policy could improve access to employment for some people.

    Consider those with convictions or a chequered employment history who employers might normally stay clear of because it’s too difficult to dismiss them later. At least this policy might encourage some employers to give more people an opportunity to prove themselves.

  41. Scribe 41

    Lew,

    If National gets in, and this policy is implemented, please get back to me in 12 months’ time and we’ll discuss this again. I will gladly eat humble pie if it is as dire as you suspect.

    Maybe it’s my middle-manager status that makes me have faith in others in similar circumstances to treat people with respect. Maybe I’m naive. Maybe both.

    Please tell me you’d genuinely not thought of this and aren’t just faking innocence? I thought you guys were some of the decent ones.

    Aw, Lew — group hug. The feeling’s mutual; nice to discuss issues without the mudslinging some people get into.

    captcha: combined jacket. I like you, Lew, but maybe not that much 😉

  42. Lew 42

    Billy: The point is not that they would sack them, the point is that they could, and this fact explicitly trades off employee rights for employer rights.

    It means an end to job security, because employees can’t be sure they have a job 90 days from now. The implications of this are explained by elementary game theory.

    Wages and conditions in these workplaces would freeze, since because employees know they can be replaced by others on the same 90-day conditions on the (starting) those new employees will be preferred on the ground of input cost reduction.

    From this would flow an end to merit-based progression: if employees are unwilling to bite the bullet and accept real wage stagnation or reductions by being a `good employee’ they won’t be offered the opportunity to progress to supervisory or managerial roles. This is a form of Peter Principle, whereby those who are mediocre (and will accept wage freezes) get promoted, though they’re not necessarily the best employees.

    This will have a long-term deleterious effect on productivity, though it will take time to show since the initial wage freeze will provide an apparent productivity boost, but the effect of long-term productivity shrinkage is further cost-cutting and wage-cutting and concessions to businesses who are `feeling the pinch’.

    Ultimately this is short-termism.

    L

  43. Lew 43

    Scribe: “If National gets in, and this policy is implemented, please get back to me in 12 months’ time and we’ll discuss this again.”

    I don’t think it’ll bite in 12 months; I think it’ll bite in the medium term. But: accepted. Loser buys the winner a pie of their choice. Shall we call the test real median wage stagnation in the listed jobs at the time of the 2011 election?

    “Maybe it’s my middle-manager status that makes me have faith in others in similar circumstances to treat people with respect.”

    Hah. It’s my status as a reluctant manager which makes me not have faith in businesses (it’s not people we’re talking about here) to treat people with respect!

    L

  44. Billy 44

    “The point is not that they would sack them, the point is that they could, and this fact explicitly trades off employee rights for employer rights.”

    I still do not see what incentive the employer has to sack an employee unless they’re just not up to the job.

    “It means an end to job security, because employees can’t be sure they have a job 90 days from now.”

    I thought it was only for the first 90 days. In which case it would be true that there is no job security for the first 90 days. Thereafter the same security employees now enjoy.

    And I think the rest of your nightmare scenario falls down for the same reason: after 90 days it’s business as usual.

  45. Scribe 45

    Lew,

    Shall we call the test real median wage stagnation in the listed jobs at the time of the 2011 election?

    No, that sounds too complicated. It sounds like it would require one of those graphs Steve creates that make my head spin.

    How about we call the test “loudness of moaning from people being screwed over by this new legislation”?

    captcha: vulgar Work. Yep, but someone’s gotta do it.

  46. Billy 46

    lprent,

    Help! Your infernal machine thinks I am D4J or someone. My lucid comments keep being moderated.

  47. Lew 47

    Scribe: “How about we call the test “loudness of moaning from people being screwed over by this new legislation’?”

    It sound a bit vague, but ok 🙂

    L

  48. burt 48

    Billy

    I have yet to meet an employer who enjoys the process of sacking or employing people. I do not understand why one would voluntarily submit oneself to that process. And what the employer would be gaining as a result.

    Exactly.

    Even the job of stuffing random prize cards into Weetbix packets has some level of skill, some level of learning about the role and the culture of the organisation. Now why would you want to chance upsetting something like 2m children because the ‘new guy’ thought that when you said each card has a ‘1 in ten chance of winning’ that you wanted 1 card in every 10th box…. No…

    It’s the ‘You can’t wear that tie’ example that is Reductio ad absurdum. Pity so many people have no idea what really goes on in the ‘nasty side’ of the employer/employee relationship.

  49. T-rex 49

    Scribe/Billy.

    Why is it that you feel the policy delivers something useful/necessary?

    I agree that in the majority of cases things will probably continue as they always did – people will not be fired/let-go/whatever.

    Presumably you want employers to have the ability to fire workers who are slack/stupid/bad workers.

    They already DO have that ability.

    What National is proposing is that employers can fire workers for whatever the hell reason they like.

    Explicitly stated, Nationals policy is:

    “Employers will have the right to fire employees for reasons that are totally unfair, unfounded, and the result of petty bitterness”.

    Why is it a good idea to give employers the right to be jerks?

  50. burt 50

    Bryan Spondre

    Steve: “Labour productivity is up 16%,’ Username & password please for that locked file you have linked to.

    Steve/Tane/Robinsod: I think we need to be using the real productivity figures not the ones that Michael Cullen spins that don’t include the public sector.

    I can’t read that either. Tane can read it, he must have the user/password or already be authorized to read that based on his network logon. I wonder which it is….

  51. I’ve been in the position of hiring people in a small business. And I found it pretty simple – after the interview we asked them to come in for a day/afternoon, with no obligation on either party to continue afterwards. (We’d pay them for their time of course)

    It wouldn’t work for all jobs. Some might best be suited by asking for a sample of their work. But it isn’t like employers have to go into the situation blind – it is their choice to hire a person after all, and if they turn out to be a rotten apple they can fire them under present law anyway.

    Giving employers the right to fire for whatever reasons they want for 3 months is just madness.

  52. Billy 52

    T-rex,

    Because lots of employers are unwilling to take a chance on a potential employee out of fear of getting the wrong person. This is because, despite your technically correct claim that an employer can sack someone who is useless, the process is so tedious and the consequences of getting it wrong so heinous, many of them just prefer not to take the risk. And the more factors going against the potential employee (poor English, criminal record etc.) the less likely the employer is to take the risk.

    And no-one has yet been able to explain to me why it would be in an employer’s best interest to sack a good employee for whom the employer had work after 90 days and replace him or her with an untested employee. I need to understand what that employer’s motivation would be.

  53. Billy 53

    Yay. No moderation.

  54. Billy 54

    George,

    I doubt your one afternoon’s probation is legal. Did you follow a fair procedure with those you chose not to employ on a full time basis? Did you sit them down and explain the areas in which their performance was deficient? Did you give them an opportunity to improve?

  55. T-rex 55

    Billy – agreed – if that was a problem it would be reason to have a policy of streamlining the process and clarifying appropriate reasons for dismissal.

    You’re a strong advocate of an employers protection from bad employees (which already exists, even if it is in a cumbersome form) yet you’ve no reservations about sacrificing an employees protection from a bad employer?

    A couple of reasons I can imagine a BAD employer firing a good employee; reasons I consider completely inappropriate, reasons I think an employee should be legally protected from dismissal for.

    1) Employee is gay
    2) Employee is muslim
    3) Employee votes Labour
    4) Employee turns out to be friends with employers ex

    The list goes on (and please nobody get on my case about making assumptions with any of the above, the point is obvious).

    These are all bad reasons.

    A good employer should not have to worry about being stuck with a bad employee.

    A good employee should not have to worry about being fired by a bad employer.

  56. Billy, well this was actually in Australia! But it is still legal in NZ to hire someone on a contract with the option of extending it as far as I know. In this case, the contract is one day, and both sides were quite aware of that fact.

  57. djp 57

    Hi Steve,

    Re: Bastiat (way back up the thread)

    ‘If you want to know something about the moral status of a state action, you have to think, “What would we think about it if a private person did the same thing?”

    1. Judicial System: Apparently Bastiat’s greatest work is “The Law”. I dont think that his quote immediately disqualify a judicial system but it certainly does warrant further thought.

    2. Military: I think the analogy holds up if as long as the military is used only for defensive purposes.

    3. Taxation: I agree, taxation is ludicrous when viewed through the lens of Bastiat’s quote

  58. Billy – there is nothing to stop the employer re-employing the same employee into the same job. If you think this wouldn’t happen then you have obviously never worked in the fast food industry. I have watched dozens of fast food workers have their work rights attacked in the form of things like:

    reducing casual hours to the point of effective dismissal

    use of a large pool of casual workers to play everyone off against each other for hours (in one case this power was used to extract sexual favours)

    workers being forced to work two and, on one occasion I am aware of, three shifts in a row

    targeting of “trouble” workers with accusations of theft (in a Dunedin McD’s a few years ago this tactic culminated in the illegal strip search of a worker by her manager)

    Just about every time this has happened because someone is deemed to not be a cultural fit or has joined a union/started to complain about conditions. They do this to stop workers organising to get a better deal and more often than not they use management in the form of 20 year olds to do the dirty work for them – think of lord of the flies but with burgers/fried chicken. Now take out the last vestiges of protection these young and naive workers have. Nice.

    Bear in mind that many franchise outfits would employ less than twenty people…

  59. Billy 59

    George: But it is still legal in NZ to hire someone on a contract with the option of extending it as far as I know.

    George, no. Sorry, you’re wrong. If employing someone on a fixed term, there must be a good reason for the fixed term unrelated to the employee’s suitability for the job.

    T-Rex, the answers to your arbitrary dismissals is to be found here.

    ‘Sod: there is nothing to stop the employer re-employing the same employee into the same job.

    Don’t tell me National have actually produced draft legislation? Where can I find it?

  60. Um, billy who’s to say the job lasts any longer than the trial? Anyway bro – with a decent youth unemployment rate (and as I recall the Nats got it up around the high 30’s last time around) you’d only need to keep turning the poor buggers down. Or would you limit the number of people who could trial for the one job?

    Anyway bro I thought I gave you a pretty good answer to your question:

    And no-one has yet been able to explain to me why it would be in an employer’s best interest to sack a good employee for whom the employer had work after 90 days and replace him or her with an untested employee. I need to understand what that employer’s motivation would be.

    And an explanation of how it happens even now – so why should we weaken our already under-policed and poor labour laws again?

  61. Billy 61

    ‘sod, darling, I must have missed the bit where you explained why it would be in an employer’s best interest to run a series of employees on revolving 90 day trials.

    As I just explained to George, if you have a job that lasts a limited time, you can already employ them for a fixed term. So no benefit there.

    Assuming an employer has a job that needs doing, generally he or she is going to be best served by, I don’t know, getting someone to do it. If someone can show that he or she is up to it, I still do not understand how the employer benefits by getting rid of that person.

    In each of the abuses you highlight, there is an advantage to the employer. I still don’t get what it is in this case. But then, I am notoriously thick.

  62. Anita 62

    Billy,

    It may not be in the employer’s best interest to get rid of every employee at 89 days, but it is in their best interest to be able to hold that threat over every employee.

    IMO that is the key problem with the model; it screws up the employer-employee relationship – for the first three months the employer can fire the employee on a whim, and the employee is in by far the weakest position.

  63. Bryan, don’t know why but it’s locked for me too now. it’s just the Stats 1978-2007 productivity report – here’s the link to the title page http://www.stats.govt.nz/products-and-services/hot-off-the-press/productivity-statistics/productivity-statistics-1978-2007-hotp.htm

    Burt, seeing conspiracies where there are none is a sure sign of paranoia. Assuming the conspirators would be stupid enough to give their conspiracy away in such a fashion is a sure sign of arrogance.

  64. burt 64

    Anita

    I think that framing it as “for the first three months the employer can fire the employee on a whim” is getting toward the “I told you not to wear that tie” argument. Is that really what you think this is designed to enable?

  65. In each of the abuses you highlight, there is an advantage to the employer. I still don’t get what it is in this case. But then, I am notoriously thick.

    Sigh. When you have the ability to fire any worker in your fast food outlet without prejudice you have the ability to pay them all bugger all and thus the ability to ensure they cannot organise. Keeping rates down by even a couple of dollars an hour could save you eighty dollars a week per worker. Many fast food outlets already do this through keeping the base rate down, squeezing an hour or two of free end-of-shift overtime from each worker, removing breaks, making them wash their own uniforms (or pay for part of them). This “labour cost saving” could be taken even further if resistance can lead to dismissal without redress.

    If you’ve got twenty – that’s $1600 a week extra on the bottom line or a little over $83k for the year.

    That’s why you would do it. Now what about workers in cleaning firms…

  66. Anita 66

    burt,

    I’m not saying it’s designed to mean that employers fire people on a whim for wearing a silver tie. It does, however, make that threat possible, along with the threat to fire for not working an extra two unrostered hours, or going to the toilet “too often”, or refusing to work without safety goggles, or …

    The point is not whether they are fired, it’s whether they believe that can be and whether that makes them less able to stand up for themselves.

  67. Lew 67

    burt: What it’s designed to enable is less relevant than what it could enable.

    For those of you, such as Billy, who are operating under some happy delusion that the policy won’t result in exactly this 89-day rolling-contract situation – I suggest you read Wayne Mapp’s unsuccessful bill from 2006. It’s very brief.

    L

  68. Burt – that’s the argument that was run by the retarded chimps at Kiwiblog this morning. F*ck off and come back when you have your own line.

    Like you even even know what “framing” means – wee parrot burty boy…

  69. burt 69

    Robinsod

    I hadn’t been into that thread, I thought it would just be full of left/right wing nut jobs doing their National good, National bad banter. roger nome gets hammered as usual.

    However we have been over this fast food thing before. I you think that people at fast food outlets are getting a rough deal, don’t go there or better still – go there and tip the staff that serve you. If you want to see them earn more (and therefore acknowledge that you will pay more for your food) then either choose outlets that pay more than min wage or leave a $2-$5 tip directly in the hands of the people you want to help. You can make a difference, feel empowered by that because it looks like you are farting against thunder opposing National on this policy.

  70. burt 70

    Robinsod

    Here is a song ‘Live – Waitress’, get some advertising going, raise awareness of the issue, protest outside fast food outlets, make a difference.

  71. What? Burt? We’ve been through this before you say? Well you were obviously not listening – I don’t frequent fast food outlets for a variety of reasons. Not least their treatment of staff. But if you think anything can be solved by shopping then you’re kidding yourself. I know you can’t bear the thought of it Burt but the answer to this kind of employer behaviour is good old fashioned work rights. I assume you have kids from comments you’ve made in the past. Would you be happy for them to be treated like the fast food workers I’ve described? Would you be pleased to know they had no legal redress? ‘Cos it’s pretty hard to stand up for your rights when you don’t have any…

    Oh and burt? What makes you think I haven’t protested outside of fast food stores? And having done so why should I not also highlight the situation many Fast Food workers face on the standard? Jeez bro – we don’t all confine our activism to the web…

  72. Robinsod. Telling absolute fuckwits to “fuck off” is one thing, people like burt who merely agree with you another. It’s your blog, but things like that leave a bitter taste in my mouth.

    Burt, I’d rather change the law. Boycotts are pretty ineffective unless the people doing it have enough monetary power to withdraw – the first were community led rent strikes, and worked because they crippled the landlords.

  73. burt 73

    Lew

    I did read that, I don’t see how you say it creates a ‘rolling 89 day’ employment situation.

    I also noticed we are one of only 2 countries in the OECD that don’t have this provision and that 3 months is the most common length of time. I also noted that the duration of the probation could be mutually agreed between the parties for a shorter term. Perhaps if the job has a two day ‘up to speed’ cycle then the period could be one week. Surely it’s up to the unions to help sort this out. I’m sure they know how to work with this, it’s the norm in the OECD countries.

  74. David 74

    I find it interesting that the majority of the objections to this policy seem to be based on a fear of what might happen, but offer no substantial backing for that position. Smacks of a fear of the big bad bogeyman employer more than anything else (reds under the bed anyone?). The current system has been described within as “cumbersome” which is a fairly charitable description. More like unworkable, but thats ok I suspect, as the only measure really required is fairness to the employee, good or bad…right….

  75. T-rex 75

    Billy – Ok, so human rights act would protect against overt discrimination, but what about slightly more covert discrimination?

    In any event, I’m abandoning my “dismissal by a petty boss” objection in favour of the much stronger arguments made by others here on the potential for abuse as a matter of procedure.

    David – What? First off, it’s not unworkable, clearly. As to fear of what might happen – why would you remove a protection against something that might happen? I’m not convinced the cost is significant. Do you refuse to wear a seatbelt on the basis that you only might crash? Do you get vaccinated against measels? Afterall, you might not catch it.

    Risk = Probability * consequence.

    Consequence – vulnerable workers getting screwed over without recourse
    Probability – given the arguments expressed above and the past history of some of the employers in question, I’d say reasonably high.

    Result? Keep the protection, might’s and all

  76. Steve P: I think you are diddling the stats; fine form as per usual.

    Doesn’t wash. 16% overall increase does not mean squat in real terms. Our population has increased and unemployment has decreased; so overall output has increased. Our productivity per hour however has been all over the place.

    Change(%)
    Year GDP/Hour
    1996 0.7
    1.7
    0.8
    2.9
    0.9
    1.8
    1.7
    1.3
    -0.5
    0.2
    2006 1.1

    Source: OECD. No stats available for 2007 yet.

    Protecting slack lazy wankers who think everything should be handed on a silver platter does no one any favours. Small business should be able to drop these type of workers as soon as it becomes apparent the worker is a lay about. By not allowing small business this right; it impacts harder working more productive staff because too much productivity and money is lost on the fuckwits. It prevents wage rises for those who deserve them.

    Due process can take 2-6 months and cost a small business thousands of dollars. One mistake and they get screwed by the employment court or are forced to settle out of court. Been there, done that. The employee can make many more than one mistake and can cripple a small business.

    Complaints about dropping wages shows a complete lack of understanding of the small business model this proposed change is targeted at. We can’t raise wages if we have slack and unproductive staff. New Zealand can’t climb the ranking of productivity and become a rich country again until our workforce become more productive.

    Why do people insist on protecting laziness. It is not hard to work at an acceptable and productive level. If you work hard, have a good work ethic and have even half a brain you are safe.

    Yeah, there are *some* bad employers who will take advantage of this; but wake up – they already get around labour laws. The rest of us employers who treat out staff well are the ones that get screwed.

    The OECD countries that far exceed our productivity output all have better wages and probationary periods. So the argument that it will hurt NZ workers is a crock of shit.

    It may need tweaking; for instance a formal termination meeting or independent arbitrator. Still cost a lot less than taking months to go through due process and wipe the lazy buggers arse. Mean while they are hurting the business and affecting overall morale.

    In my experience; a bad employee is usually a lazy employee, and their attitude generally sucks. This can’t be picked up in an interview, and if it is their first job; references wont help.

    [“16% overall increase does not mean squat in real terms. Our population has increased and unemployment has decreased; so overall output has increased. Our productivity per hour however has been all over the place.” – you don’t understand what the productivity statistic measures. It’s not overall output, it’s output per hour of labour input that has increased 16% since 1999 (and that’s after inflation, of course) SP]

  77. George – it’s not my blog. My blog is a much more robust affair and can be found here: http://www.robinsod.wordpress.com

    Oh and me and Burt go back a long way – he’d be most disappointed if I didn’t tell him to f*ck off at least once in a thread!

    David – I have substantial evidence of how the current law is abused and have written about it up the thread. I can’t see how removing rights could do anything other than exacerbate the situation…

    Karl – if I had a wanker like you for a boss I wouldn’t work too hard either. Given your attitude here I can only imagine how poorly you manage staff. Perhaps you need to exercise the freedom to fail. If only for the poor bastards yet to cross your path…

  78. sean 78

    Its pretty obvious that none of you have ever run your own small business (a successful one that is). For a small company, even one bad apple can be financially crippling.

    I went and read your blog once Robinsod – it was absolute pants mate. Amateur presentation and the writing looked like it was done by a 14 year old kid. Don’t give up your day job pal.

  79. T-rex 79

    Karl – I agree you should be allowed to get rid of lazy people. However, I think you should also be required to (if requested) illustrate why you think they’re lazy, and demonstrate that you tried something (perhaps saying “oi, stop being lazy”) to get them to be unlazy.

    If you’re not prepared to make that effort to allow those employees who AREN’T lazy the right to fair treatment then I don’t think you’re in any position to call others lazy.

    Highly likely the system requires some tweaks. National isn’t proposing tweaking, it’s proposing abandonment.

  80. Lew 80

    Karl: “Yeah, there are *some* bad employers who will take advantage of this; but wake up – they already get around labour laws.”

    Yes, and currently those employers are (occasionally) taken to task for those breaches, which has a normative effect on the overall treatment of staff. Once they’re able to act with impunity that normative effect disappears.

    I hire a lot of people, and yes, I agree that it’s a difficult pain in the arse to get rid of crappy staff. The solution is having strong workplace policies – firm expectations, good disciplinary structures, good communication between management and staff and owners. Currently there already exist provisions to hire staff on casual contracts, which effectively gives an employer the right to roster staff for 0 hours per week, effectively dismissing them. however, the advantage cuts both ways: a casual employee has the right to turn down work with impunity. This is as it should be: employers’ and employees’ rights at equilibrium, forcing both to exercise goodwill.

    burt: If Mapp didn’t intend the bill to result in 89-day rolling contracts, why didn’t he explicitly prevent such contracts in his bill? Legalese to the effect of `after 90 days of continuous employment, an employee must be offered permanent status if a job exists for them and their work is satisfactory’? As written the bill does not prevent employers from enforcing rolling 89-day contracts, so why would they not avail themselves of this facility where it provides them an advantage?

    L

  81. Robinsod; you are pretty clueless in this respec.

    1. complete flexi-time as long as work is getting done
    2. unlimited sick leave
    3. own, spouse and children’s b/days off (or other agreed day)
    4. 2.5% training budget per annum (not required to be a work related course. All skills are valuable)
    5. if appropriate – free broadband at home
    6. fully subsidised health insurance
    7. regular reviews – input into processes – they are doing the work – they should be listened to
    8. ongoing trust through responsibility (and associated remuneration)
    9. non-monitored use of internet at work
    10. a “reasonable” approach to taking time off for religious holidays – e.g. Hanukkah Ramadan

    So sorry – if consider that to be a wanker; you are someone I would never consider hiring.

    I can even show you the employment agreement we use.

  82. bill brown 82

    If, under the current law, it is “to scary for small businesses to hire people” or words to that effect, is unemployment at an historic low?

  83. T-rex 83

    http://www.stuff.co.nz/0a17217.html

    For shame Mike – you couldn’t have made it a RIGHT turn?

    Otherwise gold star. The “I just think it’s time for a change” thinking is possibly the laziest ever.

    Karl – I think the contractual rights you describe above are excellent. I doubt that you’re the type of employer employees need protection from. I’m not the kind of person we have laws against rape to protect women from, but I’m still glad we have laws against rape.

    Laws like this are there for when good faith leaves.

    I think what should be changed is the rhetoric on the topic – Small business owners quite often seem to be demonised when, as usual, it’s a minority who offend.

    That’d piss me off. I think it’d be much better to acknowledge that most small business owners are nice people, like pretty much everyone else in the country. Divisive politics only screw everyone. I doubt the nice employers have any more time for the bad employers than anyone else. If the bad ones had their peers cursing them as well rather than drawing together in common cause against persecution it’d be a lot better.

  84. Lew 84

    T-rex: “Small business owners quite often seem to be demonised when, as usual, it’s a minority who offend.”

    Absolutely right. I think it needs to be made clear that laws aren’t so much intended to keep reasonable people reasonable as they are for preventing unreasonable people from taking the piss.

    KR: Given your obviously excellent workplace relations, how is it that you as an employer would benefit from this scheme?

    L

  85. djp 85

    Hay Karl! Where do I sign up?

  86. Lew:
    Here is a story; from one of my businesses. I won’t mention the guy’s name; but he will know I am talking about him if he reads this.

    I hired a sales man for a start-up I am running. His job was to build brand and market and of course bring in sales.

    I found out he was not really doing much; in fact when asked for call sheets and various other matters; he produced something that looked like he had chucked them together that morning.

    He presented himself as a person who was good at what he did; his references “checked out”; all from overseas. But he just did not deliver and was fundamentally lazy and expected it all before he had delivered anything.

    After eight months he still hadn’t made any sales so the company pretty much ran out of money a few months later because we were completely behind the eight ball.

    To cut a long story short – due process took 2 months starting around month 6 when it became so apparent he was not doing his job I had no alternative but to start due process. And I made a single mistake and he walked away close to $12,000; as well as his salary and “expenses” and as part of his package was share I had to buy them back at face value not the actually value of the company.

    I acted in good faith and had a fellow shareholder at the meeting. He brought an employment lawyer who documented the mistake that sunk us.

    The thing is; it was obvious I had made a bad call on this guy very early on and I should have basically got rid of him around month 2 or 3. However I was too concerned about due process and delayed longer than I should have. The “It will get better; he’s just finding his feet.” mantra of most small business owners. But it never did.

    That is why I think the rules for the probation period need to change. Maybe a strict criteria for a single warning without full due process. e.g. “You are not providing the services to the company that you said you were capable of providing. You have 10 days to rectify it.”

    We aren’t even allowed to say “If you don’t improve your performance; you will not have a job.” Why? Because it might be construed that the employer has already made up their mind and the employee can lay a grievance that the employer never intended on giving them a chance.

    You have to say “If you don’t improve [specific thing]; it may result in your employment being terminated.” If they do something different to the [specific thing] you have to provide another warning for that.

    I am still running the business; but also had to make another staff member redundant. It is now “bootstrapping” in the hopes it can get that first sale to make it fly.

    The people who invested in this were fiends and family. None of them “rich”; and for most this was their first adventure into small business. I suspect that it will be their last.

  87. Lew 87

    KR: Ok. The question is: is it worth the significant expense and hassle of this rare situation to allow the employers of tens of thousands of poorly-paid employees to dismiss them or keep them on rolling contracts on stagnant wages more or less in perpetuity?

    Sure; it’s worth it to you in an immediate sense; you’ve been burned and don’t want to be burned again. But looking larger than that – is it worth it in the long term? To the economy? For the social health of NZ?

    L

  88. Steve: Thanks for the new link, it works now.

    “Burt, seeing conspiracies where there are none is a sure sign of paranoia.”

    There is an old saying, “Just because you are paranoid doesn’t mean they are not out to get you “.

  89. The problem is it’s not rare. I have worked with small business for 15 years now; probably been into close to 200 businesses in that time. In almost all cases the business owner has had a horror story about trying to get rid of a bad apple.

  90. T-rex 90

    Karl – That is precisely the kind of situation that should be changed. The question is how to change it without putting the employees Lew refers to at risk.

    Clean up the legislation, remove the loopholes for whingers and bludgers. But don’t unduly compromise protection for the vulnerable.

    The advantage you have with good workplace relations is that, over time, you’ll attract and retain good staff.

  91. jbc 91

    Lew: the rolling 89-day contract you mention would indeed be a worry if it were to eventuate. However I’d say it would be unlikely. In order to exploit the probational employment period in this manner one would have to fire the worker on day 90 (or 89), calculate and dispense final pay and PAYE, leave entitlement, etc, then re-hire them the next day. If any of this wasn’t done correctly then the employer would be in trouble.

    A simple ‘rolling contract’ without the fire/hire would be deemed continuous employment. In any case I suspect that this type of obvious abuse could be handled in law without too much complication.

    How about taking a step back and looking at the wider effects (NZ-wide employment). Do you think it would result in small businesses taking on more or less employees on average?

  92. lprent 92

    Karl:

    In almost all cases the business owner has had a horror story about trying to get rid of a bad apple.

    Yeah and I can give you chapter and verse. I used to run factories and other businesses (and a lot of the family still does).

    On the other hand I can also point you in the direction of many arsehole employers that I’ve worked for or whom friends and family have worked for. Billy ascribed the traditional economic motive to employers. Most managers do operate in a manner that is consistent with that. However there are always the jumped up little dickheads who do not operate in any rational way. If you happen to run across one of them, where they do not have strong constraints, then anything can happen.

    If you want looser worker rights, then the penalties for being an arsehole manager should be made MUCH more severe. Say, just for instance, mandatory execution for a conviction in the employment court. Then at least they will think twice

    After having a couple in my working career, I really dislike lousy managers. Since I come from a management family, I’d be really interested in having their bad habits removed from the genepool.

    But readers here will have already noticed my draconian tendencies.

  93. Leftie 93

    To add to the debate, I know a couple living in Australia, both in reasonably skilled jobs. They went to buy their first home and during their mortgage application discovered that only one of them was eligible because the other was on probation in a new job. So imagine if both of them were on probation. Is National proposing to make it even harder for young people to get into their first homes?

    Most underperforming workers would consider receiving a written warning enough of a shock to inspire them to lift their game.

  94. jbc 94

    […]mandatory execution for a conviction in the employment court. Then at least they will think twice.

    Great idea – so long as it applies both ways. That’ll also make people think twice before making frivolous claims.

    One employment story I recall from a long standing small business operator (in the family, and no, never had a negative judgement) was the employment court judge (or whatever they are called) warning the employee that he wished he could make her pay for the trouble she had caused in making her claim. Unfortunately it is always at the employers expense.

    Perhaps I’m just lucky but I have never had an asshole employer in 25 years of employment; including 5 years of varied service/labour jobs (retail, warehouse, supermarket, bar, restaurant, gorse spraying, drilling, etc)

    I have experienced plenty of “bad apple” co-workers though. One even prompting my first 111 call.

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