One of the key factors in the employment relationship is the right of employers to end the relationship, writes Phillip de Wattignar, who makes some predictions about changes to employees' rights to challenge unfair dismissals.
A key area for change in employment law is likely to address employers' concerns about the time, energy and expense involved in starting and ending employment relationships.
There is a call to allow employees to start work without access to unjustified dismissal procedures.
There was an attempt to address this with a Private Member's Bill in 2006.
It did not get sufficient support to pass in our Parliament.
What was envisaged was that for new employees there should be a probationary or trial period, with the employer enjoying the right to terminate at will, with no rights to challenge dismissals during the trial period.
It is likely changes will go further.
There has been comment on the need to end the uncertainty of obligations and procedures created by bad law.
There has also been comment that law cannot create trust where none exists.
This could also indicate an intention to reduce or remove the current requirement to act in good faith (Part 1 of the Employment Relations Act 2000), as well as signal an end to personal grievance challenges to some or all types of dismissal.
A look at the Employment Contracts Act 1991 and the Australian Workchoices 2006 changes provides possible options for change.
Under Workchoices, the Howard government removed any right to take an unfair dismissal case from employees employed under 10 different criteria, including: probationers, seasonal and fixed-term employees, trainees/apprentices, casuals and, more significantly, those earning more than $A98,200 a year, and any employee who worked for an employer with less than 100 employees.
These changes favour the same sort of non-corporate, small and medium businesses targeted to benefit from reforms in New Zealand.
The Howard government's justification for the change was that small and medium businesses operating without in-house human resource/employment specialists needed a simple and uncomplicated employment law.
Exactly the same argument has been made here.
The simplest way to achieve this will be to follow the Australian approach and end the development of any rules for the conduct of employment relationships by removing any role for tribunals or courts to review employer conduct in the case of dismissals from small and medium businesses.
Given the size and numbers of staff employed by small business in New Zealand, this change would significantly reduce the number of employees able to take unjustified dismissal cases.
Although Workchoices still requires employers with 100 or more employees to defend unfair dismissals, the tribunals and courts in Australia must take into account previous warnings, and whether the size of the employer's business or the absence of a dedicated human resource specialist had any effect on the dismissal procedure.
If this were to become a requirement here it would significantly reduce the number of successful dismissal cases.
An alternative to the Australian approach that is also philosophically consistent with a voluntary contract probationary clause proposal might be to provide for contract disputes and grievance clauses to be a matter for negotiation between the parties.
The effect would be for user-pays private and confidential mediation and arbitration of disputes and grievances away from the tribunals and courts and free from the development of case law and any need to follow legal precedents.
This was provided for in the original 1990 Employment Contracts Bill, but was replaced in the Employment Contracts Act (to the everlasting regret of many) with compulsory clauses giving all employees the right to take unjustifiable dismissal cases in the tribunal and court.
There could also be some other changes, such as buying out holidays, which is provided for under Workchoices in Australia, (up to two weeks of the four-week entitlement), simplified rules to build casual and part-time holiday rates into hourly rates, and making sick pay rates clearer by removing uncertainty about what is the relevant daily pay.
Another less controversial area for change has been the signalling of the removal of constraints on processes of change in the commercial world (contracting, transfer and sale of business and redundancy).
If a new government takes the time to review the impact of the 1991 Employment Contracts Act and the 2006 Australian Workchoices Amendments to reflect and draw on, they might make significant changes without repealing the Employment Relations Act.
The irony is that, on the information to date, the outcomes are more likely to be contrary to stated goals to increase the control individual employees have over their destiny.
For non-union employees who make up the majority, Workchoices-type changes are more likely to move the employment law system away from delivering any concept of good faith, power balance and fairness.
- Phillip de Wattignar has worked in the area of employment relations for 25 years and is currently employed as an employment mediator.
The views expressed are personal to the writer and do not in any way represent the Department of Labour.
