Election 2011 - Workplace Policies

The nation's minds have turned to the election ahead, for what feels like a short sprint to polling day.

What do the various political parties have in store for employment law? 

There seem to be a few common areas of target on which the parties' employment policies are being platformed.

Collective Bargaining

The National Party proposes to amend the Employment Relations Act so that good faith bargaining does not mean parties have to conclude a collective agreement and employers will be able to opt out of a multi-employer collective bargaining. It also proposes to allow employers to reduce the pay of an employee who is engaged in a partial strike action (ie refusing to perform some, but not all, of his or her duties of employment).

National also intends to repeal the requirement that non-union members, whose position is covered by a collective agreement, be employed on that agreement for the first 30 days of their employment.

A significant part of Labour's industrial relations policy is, on the other hand, based on promoting collective bargaining across industries. An "Industry Standard Agreement" is a collective agreement negotiated between unions and employers setting out the minimum employment standards applicable to all workers in an industry. It will be an additional instrument to the individual, collective and multi-employer collective agreements already in the Act. To support this collective bargaining process, Labour proposes establishing a "Workplace Commission" to sit alongside the Employment Relations Authority.

Similarly, the Green Party is campaigning on strengthening collective bargaining rights.

90 day trial period

The Labour and Green Parties have pledged to remove the 90-day trial period. On the contrary, National, ACT, and United Future support its continuance.

Independent contractors

Labour hints at an intention to provide independent contractors with similar or the same protections available to employees. The policy says Labour will "ensure" that casual employees and contractors are "given similar rights to those in more traditional forms of employment". Certainly Labour is campaigning on the repeal of the so-called "Hobbit" law (which currently excludes film production workers from the definition of "employee", making them independent contractors).

Reinstatement as primary remedy

Labour will restore reinstatement as the primary remedy.

Constructive dismissal

National considers that constructive dismissal is being claimed inappropriately, and intends to fix this. While vague in detail, it pledges to inquire into how "allegations of constructive dismissal can be better managed".

Flexible working arrangements

National is campaigning on further promoting flexible working arrangements by:

• extending the right to request flexible working arrangements to all employees (rather than just those with caring responsibilities); and

• enabling employees to ask for flexible arrangements at any time (rather than only after six months employment); and

• allowing requests to be made any number of times (rather than just once every 12 months).

The Maori Party is also campaigning on flexible working arrangements.

Minimum wage

The Labour, Green and Mana Parties each want to raise the minimum wage to $15 an hour. The Maori Party wants the minimum wage at $16. The Mana and Green Parties want to increase the minimum wage over time so that it reaches 66% of the average wage. Mana is campaigning on achieving this by 1 April 2013. ACT opposes the raising of the minimum wage.

National does not address the minimum wage (although campaign material promotes National as having raised the minimum wage each year), but does campaign on a "Starting-Out Wage" for 16-17 year olds (and certain 18-19 year olds if they have been on a benefit or training for more than six months), which is set at 80% of the minimum wage.

Monday-ising public holidays

Labour will amend legislation to ensure that, where a public holiday falls on a weekend, a public holiday will fall on the following Monday. ACT has commented that to Monday-ise public holidays will result in lost productivity and will adversely affect small businesses. 

National's 2008-2011 term - Were promises kept?

National Party's 2008 election campaign pledged various changes to employment law and policy. We have examined whether those promised changes have been made over the 2008-2011 term.

The following policies were successfully delivered:

• Established a 90-day trial period for small employers (19 or fewer staff). This was implemented, and with ACT pressure it was extended to all employers from 1 April 2011.

• Allowing cross-examination in the Employment Relations Authority.

• Amendment of the Holidays Act to:
  • make the calculations of "relevant daily pay" easier, and
  • enable employees to cash in their fourth week of holiday entitlement.

The following policies which were promoted during National's 2008 election campaign but were not achieved in the three year term (and therefore have either been dropped as policies, or may potentially be revisited if re-elected):

• Enabling collective (non-union) groups of employees to negotiate with their employer.

• Allowing injunctions and important questions of law to go directly to the Employment Court rather than having to go to the Authority first. Leave is still required from the Employment Relations Authority to have a matter removed to the Employment Court, although as of 1 April 2011 the Authority may refer a matter to the Court itself (in the absence of an application by the parties). 

• Extending the right to appeal to the Court of Appeal beyond questions of law - appeals from the Employment Court are still limited to questions of law.

• Winding back flexible working conditions laws. On the contrary, National is campaigning in 2011 to extend the flexible working arrangements.

Winston

And lets not forget about the irrepressible Winston Peters and New Zealand First. "More Jobs, New Apprenticeships, Higher Wages" are promised. How Winston will achieve this is yet to be revealed ...

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Last updated: 16 November 2011

The contents of this publication are general in nature and are not intended to serve as a substitute for legal advice on a specific matter. In the absence of such advice no responsibility is accepted by Brookfields for reliance on any of the information provided in this publication.