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Spin-busting: Probationary periods

Written By: - Date published: 2:20 pm, December 9th, 2008 - 22 comments
Categories: national/act government, workers' rights - Tags: , , ,

National has been working hard to push the idea that its fire at will policy introduces a ‘probationary period’ of employment.

This is not true. The Employment Relations Act already allows for probationary employment periods, it simply requires that workers are given the right to fair process and natural justice.

All National’s proposed legislation would do is remove the right to fair process and natural justice, allowing employers to fire their staff at will during the first 90 days of a new job.

[As an example, the current Stuff.co.nz poll reads “Are you in favour of 90-day probation periods for new employees?” – taken literally even the President of the CTU could vote ‘yes’ on that one.]

22 comments on “Spin-busting: Probationary periods ”

  1. bobo 1

    Love the wording “probationary period’ kind of makes all new workers sound like criminals… same old same old, and Keys speech headline ‘decade of missed opportunities’ must be referring to the 1990s government induced recession.

  2. Stephen 2

    Is a probationary period with “right to fair process and natural justice.” *really* a probationary period then?

  3. Billy 3

    “The Employment Relations Act already allows for probationary employment periods.”

    Yes, but because there is no difference between a probationary and non-probationary period, it is utterly meaningless.

    It’s like having two mammals of the family Myrmecophagidae, having long, tapered snouts, extensile tongues, and powerful front claws who feed chiefly on ants and termites and calling one an ant eater and the other a Robinsod.

  4. burt 4

    Surely when it comes to 90 day probation periods the law of common sense applies.

    Ha ha ha.

  5. Strathen 5

    I think the major issue with the current process is the lack of a definition of a fair process. The current legislation is written and designed for big organisations. It does not help SME’s at all and is (unintentionally) cramping them in to ‘safe’ yet unproductive hiring decisions. This does not help growth and just keeps embracing mediocrity.

    The key line from the department of Labour website that enables all dismissals to be interpreted as a PG is:

    ‘The employer should investigate any allegations of misconduct thoroughly and without prejudice’

    By definition an SME employer can never enter in to a fair process as the very act of entering this process means they are already prejudiced. Unless, the employer is a part of a big organisation and someone who is not involved with the day to day interaction of the employee in question can run the process can they enter the process without prejudice.

    The other kicker is:
    ‘Employees who feel they have been treated unfairly at work or when they have been dismissed, made redundant or discriminated against’

    What employee that is dismissed ever feels that they have been treated fairly? Ok, there are some exceptions, my opinion is that the majority would not.

    This policy needs to have a few checks in place to protect against employers who will abuse it. However as it is aimed at companies that employ less than 20 employees, I think it is feasible and aimed at the right demographic.

    Let’s be honest, a newspaper is not written at an academic level as they expect the average kiwi to be reading it. The same thing is applied here, a crude rule (that needs to go through the select committee in my eyes to get the appropriate checks in place) aimed for the average NZ Business owner, not the corporates. NZ is approx 90% SME’s, the legislation needs to reflect that.

  6. deemac 6

    let’s be honest, a newspaper is written by reprinting NP press releases…

  7. “let’s be honest, a newspaper is written by reprinting NP press releases ”

    … and followed with ‘Qantas media awards’

  8. Daveski 8

    … only beaten by a National Radio that better represents Labour.

    Speaking of which, the newspaper is a private business owned and published by private individuals.

    Conversely, the radio is owned by the state and its purpose is to represent the views of the presenters … oops the people of New Zealand.increasing

  9. Thomas Beagle 9

    A link to the current legislation: http://legislation.govt.nz/act/public/2000/0024/latest/DLM59164.html#DLM59164

    If I read it right, it basically seems to be saying that you can have a probationery period but it means nothing. Anyone else got a better understanding?

    Personally I approve of a sensible scheme but a) I don’t think this is it, b) I’d much rather it went through the process properly. I don’t want the National Party to pick up the worst habits of the Labour Party!

  10. lprent 10

    TB: You mean habits a lot worse than Labour. I think that Graeme described the only two bills that have passed in the manner that the NACT’s are shunting this one through – totally undemocratically.

  11. pk 11

    “let’s be honest, a newspaper is written by reprinting NP press releases ”

    generally speaking media are left of centre as that is more populist and results in more sales of their media and thus the ability to advertise – media are sadly a medium to sell advertisements and old school journalism is dead.

    But it’s a conspiracy theory – I’m new to blogs and look at the left and the right and both are full of b****ks conspiracy theories that anyone with more than 2 neurons realises are unreal – but guys, the left wingers win the stupid consiporacy race (not by a lot)

  12. Graeme 12

    lprent – there were definitely others. I think there was a Building Act amendment at some point that avoided select committee scrutiny. I would anticipate that there were others too.

    The two I used were just the two that came immediately to mind.

  13. lprent 13

    GE: I can think of a few things that might require urgent legislation, effectively emergency legislation:-

    1. things that affect life and limb
    2. the ones to do with being able to run a government at the level of being able to pay people or the basic finances.

    Normal bills should go through the normal process, especially select committee hearings.  as this one should.

    I can think of quite a lot of older legislation that got rammed through like this one. Perhaps Key feels he is the reincarnation of Muldoon?

  14. higherstandard 14

    I tend to agree with Lynn

    Unless this bill is going to suddenly elicit a mass hiring splurge (unlikely in the current environment) and certainly not usually the case prior to XMAS – I can’t see what the reason is for the hurry apart from hurrying for the pure sake of it and that tends to be a recipe for poorly drafted law (it certainly has been the case in the past).

  15. Lew 15

    pk: Welcome aboard. I spend a lot of time arguing against both the loony right who claim the media are all run by pinko commies and the loony left who claim they’re all the mouthpieces of transnational capitalist ideology. Your analysis is pretty good, but one part of it doesn’t hold:

    generally speaking media are left of centre as that is more populist

    Come again? Left = populist?


  16. lprent 16

    I’d agree with Lew. The most populist media that I can think of are on talk-back radio. They don’t exactly appear to be ‘left’ to me. I’d usually describe them as just anti anyone who is not them, and leaning to maximum freedom for themselves and restrictions on everyone else.

    Remind me of Act most of the time.

    Awk. Just read HS’s comment. This agreeing just has to stop. I consider that it is all a subversive plot…. 🙂

  17. Pascal's bookie 17

    Is the parole/bail reform that is going through urgently going to include the ‘gathering of DNA samples from citizens arrested but not yet tried’ provision? If so that sux, that should be debated.

    I’d like to know the maori Party’s position on that little can’o’worms. I’m guessing they’re are agin it.

  18. Tim Ellis 18

    It’s a bit of an irony to see some of the people who defended some of Labour’s urgency motions on measures that weren’t explicitly endorsed by the electorate. I generally think legislation should go through a proper select committee process, as it greatly improves the drafting of it.

    There seem to be three issues here:

    1. Whether the legislation should go ahead at some stage. National clearly signalled this before the election, and it was a theme that the unions and Labour campaigned against. The unions lost that campaign. It was hardly a secret agenda. National clearly has the mandate to proceed with the legislation–in fact it would be a broken promise if they didn’t. It seems to me that a lot of the debate is trying to relitigate the election result. The public debate has been held.

    2. Whether the legislation should form part of this urgency package. I think National is on weaker ground here, since it wasn’t one of the 27 moves that National said would be part of its first 100 days. It was clearly going to be a policy priority for National but they could have done better by indicating it as a first-100 day issue some time before now.

    3. Whether National could have made a better argument to make this an urgency item. I think they clearly could have, and it doesn’t seem to have been handled well in this respect. John Key has signalled that the economy is his major priority given the international and domestic financial issues. There’s a good argument that this measure could be part of National’s kick-start of the economy. That economic package hasn’t been announced yet, so it wasn’t exactly a coordinated announcement.

  19. Akldnut 19

    pk I’m part of the looney left (acording to Lews description) but I don’t say a lot, I read more than I type. Just wanna query that if the left of centre was populist wouldn’t we be in power??? or is it that the ordinary people number less than the right wingers (Greedy Rich Pricks)? lol

  20. tsmithfield 20

    Actually, its tsmithfield, not “leftie”. Could someone have a look at this. Looks like my ID has been hacked.

    Billy said: “Yes, but because there is no difference between a probationary and non-probationary period, it is utterly meaningless.”

    I have to agree with this. I have had discussions with an employment lawyer on this issue. There is no difference between dismissal at the end of a 90 day trial period and dismissal at any other time. Exactly the same processes must be followed.
    So, as the law stands, the probationary period is absolutely meaningless. In other words, it might as well not be there.

    As a small business person, I would feel much more enthusiastic about hiring people if I could let them go easily if they do not work out. The current law increases my risks in employing new people, and therefore increases my reluctance to do so.

    It is not necessarilly the case that work exists so a position must be filled. In many cases, there are several options; e.g. maintaining the status quo (often a safe option) or expanding and taking on staff. If the risk side of the equation is perceived as too high then many employers are likely to maintain the status quo to avoid the employment risks.

    If the new law reduces the perceived risk to employers they are more likely to expand rather than maintain the status quo thus creating more jobs.

    [lprent: Looks to me like you have cached cookie problems. IP is correct.

    If you aren’t logged in, the the system ‘remembers’ who you are by a cookie stored on the client side. If the cookie stored matches one on the server, it puts in the data stored. This looks like it has happened before.

    I’d suggest that you register and login because then it will pick up the data from the server based on your login, instead of off your local machine.

    Otherwise you can change your details when you post a comment – just above the comment space.
    I’ve fixed header]

  21. I cant believe that there are people out there who really believe that main media are “left wing” Most of the daily papers are completly Right-Wing .. The most Tory biased paper in NZ must be the Herald . At the last election this Tory rag ran a consistant campaign agaist Labour . Not only was the regular editorials pro National and thus anti-Labour but Sensible Sentencing ,. Family First (all Right Wing groups ) full coverage for their anti Green
    /Labour campaign.
    Their regular columists like O’Sullivan and the raving neo-con Garth George used their columns proganding for the Nats .This tory rag also gave regular space to the Maxim Soc, and other anto Labour groups.
    As for the talkback shows ,it seem to me as if all the fascists in Aotearoa dominate most of the talk back time. . The political left in NZ is completetly outnumbered by the power and wealth of the wealthy backers of National and ACT .
    This is why blogs are a good source for theLeft to get their mesage across

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