Submission on the Employment Relations Amendment Bill 2018
←
→
Page content transcription
If your browser does not render page correctly, please read the page content below
Christchurch Community House
301 Tuam St, Chch Central 8011;
Phone: 03 379 8787 or 377 3560;
Beneficiary Advisory Service email: bas.cprc@gmail.com;
website: bas.org.nz ; Facebook:
@BeneficiaryAdvisoryService
Submission on the Employment
Relations Amendment Bill 2018
1 Beneficiary Advisory Service (“BAS”)1 strongly supports this legislation and urges the select
committee to adopt it.
2 Whilst supporting the legislation, we have some suggested changes.
Our status as submitters
3 BAS was set up in 1992 to promote and protect the legal, social and citizenship interests of
people on benefits and low incomes. Our workers, both paid and voluntary, are drawn
from this group and derive a wide range of skills and opportunities through the work they
do. Our organisation also reflects the ethnic diversity of our clients, as our workers are of
Māori and Pākehā/Palangi descent.
4 We are registered as a Charitable Trust under the name of the Christchurch Peoples
Resource Centre.
5 Our primary service is to provide individual information, advice and advocacy for
people who are experiencing problems in the benefit system. These problems range
from simple entitlement questions to complex legal issues. We have dealt with many
of the benefit reviews in Christchurch and we have helped to prepare cases for the
Social Security Appeal Authority, the High Court and the Court of Appeal. People who
are faced with social security problems are almost invariably referred to us if they
contact other community agencies.
6 We have around 800 new clients each year and deal with clients from all over the
country. This involves giving information and advice, direct negotiation with the
Ministry of Social Development, assistance with applications, support with interviews,
and representation at hearings. Our referrals come from other major agencies and a
wide range of non-community sources. We are unique as a service in terms of a
combination of perspective, knowledge and skills.
7 Our work frequently involves an interface with employment law. For example, our
clients are variously either allowed to work part-time whilst receiving a social security
benefit or expected to find work as part of their general work obligations; in some
cases, our clients have been refused social security support because they have
1 Our postal address is: Christchurch Community House, 301, Tuam Street, Christchurch Central 8011. Telephone (03) 377 3560
or (03) 377 8787. Email: bas.cprc@gmail.com. Facebook: @BeneficiaryAdvisoryService. Website: http://www.bas.org.nz.allegedly been dismissed for misconduct, or left work voluntarily, or purportedly
refused “suitable” employment; in other cases, our clients have been sent to lengthy
unpaid “work trials” as part of their work obligations; and so on.
8 When our clients are at work, or come off a benefit, they are more likely to move into
the unstable, poorly paid, vulnerable work that has been encouraged by the
incremental dismantling of employment protections over the past nine years. For
example, as the Ministry of Social Development (“MSD”) pointed out in comments on
the Employment Relations Amendment Bill 2013, repealing the 30 day rule under
section 63 would “disadvantage young people, those exiting benefits for employment,
and other vulnerable workers”. 2
9 At this point, the child poverty we deal with when advising on social security issues is
not necessarily mitigated. About 29 percent of poor children have at least one parent
working full-time on a low wage.3 The wage/ work bargain makes no allowance for
child poverty.
10 Here, the incremental dismantling of employment protection by National-led
coalition governments was a cynical repetition of the brutal political equation
underscoring the Employment Contracts Act 1991 and related benefit cuts. Legal
protections for the poorest and most vulnerable groups in the paid workforce have
been weakened whilst people receiving social security benefits have been forced to
compete with those workers, under threat of harsh penalties. This further shifts the
cost of a flexible labour market onto workers and particularly marginalised groups.
11 This bill directly addresses some, although not all, of the resulting problems.
“Back to the 1970s”?
12 We note the mantra that this bill, and associated proposals for reform, takes industrial
relations “back to the 1970s”.
13 We observe, however, that most of the provisions of this bill simply reinstate the law
as it operated for the first six years of National-led coalitions. During this time, the
National Party claimed increasing employment growth and associated positive
outcomes around employment. To argue against this background that the restoration
of these provisions will lead to job losses, leave alone return the law to the 1970s, is
nonsense.
14 Further, as officials noted in the background papers to this bill, overall, the changes
broadly revert the law to the pre-2014 position and “since the change in the law, there
has been little discernible effect that can be attributed directly to the regulatory
changes.” 4
Amendments relating to unions
15 We support the amendments relating to unions in Part 1 of the bill.
2 MBIE, Regulatory Impact Statement 2013 paragraph 84
3 Jonathon Boston and Simon Chapple, “New Deal for Kids, available at http://www.noted.co.nz/archive/listener-nz-2014/new-
deal-for-kids/
4 MBIE, Departmental Disclosure Statement, para 5.3 available at http://www.mbie.govt.nz/info-services/employment-
skills/legislation-reviews/employment-relations-amendment-bill16 In particular, the reinstated right of entry to workplaces under clauses 5 – 8 is an
important aspect of freedom of association and consistent with Aotearoa/ New
Zealand’s obligations under ILO Convention 98 on the Right to Organise and Collective
Bargaining and ILO Convention 87 on Freedom of Association.
17 The 2011 removal of the automatic right of entry to workplaces by the National-led
coalition, even in cases of health and safety, was inconsistent with that obligation. It
was also inconsistent, at the time, with research around union access carried out by
the then Department of Labour in 2010. That research indicated that the right of
automatic entry had not caused problems for most employers and most unions, who
worked together to find appropriate times and circumstances for visits.
18 The intention behind removing the right of access was clearly to hinder unions in their
ability to organise. The results of that change have ranged from misuse of the
notification and consent process to delay access and undermine collective bargaining,
5 to cases where union representatives have been followed, trespassed and even
assaulted for attempting to exercise reasonable access rights. 6
19 The restoration of the pre-2011 provisions will improve the ability of unions to
perform an effective role in collective bargaining and support of their members and
simply reinstates legal provisions that operated successfully under the original
legislation. Proposed section 18A, entitling union delegates to reasonable paid time
to represent employees, will enhance this objective (clause 4).
Amendments relating to collective bargaining
20 We support the amendment relating to collective bargaining in Part 1 of the bill.
21 For the most part, as noted above, the provision in Part 1 of the bill simply restores
the law to the position that operated for the first six years of National-led coalition
governments.
22 The relevant provisions, now reinstated, were originally inserted in 2004 after
extensive research by what was then the Department of Labour, establishing that the
original collective bargaining law was not effective for its purpose, particularly where
low paid and vulnerable groups of workers were concerned. 7 These groups include a
high proportion of Māori and Pasifika workers, young people, and those exiting social
security benefits.
23 It followed inescapably that the real object of the National-led government in the
2014 amendments was to weaken collective bargaining and the negotiating position
of the workers who relied on it.
24 We therefore support the clauses in Part 1 of the bill, on the basis that they are
beneficial to the interests of workers, and particularly those on low pay, and
consistent with the statutory objective of promoting collective bargaining.
5 NZ Meatworkers Union Inc v South Pacific Meats Ltd [2012] NZERA Christchurch 21.
6 NZ Meatworkers Union Inc v South Pacific Meats Ltd [2017] NZERA Christchurch 121 and NZ Meatworkers Union Inc v South
Pacific Meats Ltd and Michael Anthony Talley [2016] NZERA Christchurch 13..
7 Department of Labour, Evaluation of the Short Term Impacts of the Employment Relations Act, November 2003..25 The provisions are also consistent with Aotearoa/ New Zealand’s obligations under
International Labour Organisation Convention 98 on the Right to Organise and
Collective Bargaining. The changes made by the National-led government in 2014
were not consistent with this country’s obligations under that Convention.
Duty to conclude bargaining
26 We support the restoration of the duty to conclude bargaining, unless there is a
genuine reason not to (clause 11). This removes the very real risk that employers will
engage in the façade of negotiation commonly labelled “surface bargaining” to the
detriment of the genuine collective bargaining encouraged by the legislation and the
workers it is designed to protect. Challenging surface bargaining under the current
regime would be prohibitively expensive and protracted. As noted, the changes made
by the National-led government in 2014 were not consistent with this country’s
obligations under International Labour Organisation Convention 98 on the Right to
Organise and Collective Bargaining.
Initiation of bargaining
27 We support the reinstatement of the ability for a union to initiate bargaining (clause
12). The removal of this approach under the 2014 amendment created potential
“gaming” scenarios around initiation and encouraged disputes about the technical
initiation which would be costly and protracted in practice.
Multi-employer bargaining
28 We support the repeal of sections 44A to 44C, which allow employers to opt out of
multi-employer bargaining (clause 13). Allowing an employer to opt out of multi-
employer bargaining before any bargaining has even taken place operates to negate
the choice of employees and their unions as to the preferred form of bargaining. It
could thus discourage confidence in collective bargaining. It also undermines the
section 3 object of promoting bargaining and breached International Labour
Organisation Convention 98 on the Right to Organise and Collective Bargaining.
Identifying end of bargaining
29 We support the repeal of sections 50K and 50KA (clause 14). These provisions,
enabling the Employment Relations Authority to determine that bargaining has
concluded, similarly discourage confidence in collective bargaining, 8 undermine the
section 3 object of promoting bargaining and breach International Labour
Organisation Convention 98 on the Right to Organise and Collective Bargaining. We
note that the Government at the time was warned both by the Human Rights
Commission and departmental officials that section 50K was in breach of the
Convention. 9
30 We support cl 15, amending s 53 consequentially on the repeal of the above
provisions.
8 See, for example, the facts in AFFCO NZ Ltd v NZ Meat Workers Union Inc [2016] NZEmpC 17.
9 See the background material summarised in Mazengarb’s Employment Law (loose-leaf ed) at paragraph [ERA50K.13]).Collective agreements
31 We support clause 16, amending s 54 so as to clarify the technical issue that arose
under the Jacks Hardware decision. 10 This removes the possibility that, under the
proposed new section 33, an employer could argue that insisting on unilateral
individual wage-setting was a genuine reason not to conclude a collective agreement.
Clearly, as the protracted litigation in Jacks Hardware illustrates, the ability to argue
the exclusion of pay as a reason for not concluding an agreement would undermine
collective bargaining. It would also further muddy the waters in relation to gender and
ethnic pay disparities, contrary to the thrust of the new Government’s policy in these
areas.
Provision of information
32 We support clause 17, under which a union can provide an employer with information
about the role and functions of unions to pass on to new employees. This provision
enables new employees, and particularly young or otherwise vulnerable employees,
to become aware of the union, the collective agreement and how it may benefit them
at a stage when they are being offered employment. This is the most useful time to
provide this information, as opposed to the current requirement to provide limited
information when the new employee enters into an individual employment
agreement. The provision will operate to encourage informed and timely choice as to
employment arrangements.
Amendments to Part 6 (individual employees’ terms and conditions of employment)
33 As with collective bargaining, the changes made to Part 6 (individual employees’
terms and conditions of employment) in 2014 operated to weaken terms and
conditions of employment. We support and welcome their repeal.
34 We support clause 18, which replaces current section 62 with new sections 62 to
63AA.
The 30-day rule
35 The proposed new section 62 will once again cover new employees who are not union
members by placing them on the same terms and conditions as union members for
the first 30 days of their employment. This will protect vulnerable new employees
from entering into individual employment agreements on unfavourable terms and
conditions. It is consistent with the object in section 3 of recognising inherent
inequality in power in employment relationships.
36 In this particular context, we note that the rationale for repealing the 30-day rule
presented to the electorate in the National Party’s Employment Relations Policy 2011,
was that the inability to agree to lesser terms in some areas, in return for a higher
base salary, “can have the effect of lowering base salaries”. In stark contrast, the
actual object as stated in the background Cabinet papers, was to enable employers to
“offer” terms to new employees which were “less than those in the applicable
10 First Union Inc v Jacks Hardware and Timber Ltd [2015] NZEmpC 230 (under the “old”.section 33, now to be reinstated)collective agreement”, 11 thus facilitating a “race to the bottom” in terms of new hires
and undermining the collective agreement.
37 We support proposed new section 63, which requires employers to provide new
employees with basic information assisting with the choice between collective or
individual coverage. This will assist informed choice, on the basis of an increased
awareness of the options, and discourage potential discriminatory behaviour based
on union membership.
38 Requiring the employee to make an active choice relating to coverage under the
proposed section 63 will enable new employees to acquire a proper knowledge of the
collective agreement and the union, so as to enable an informed comparison and
more effective decision-making.
39 The proposed new section 63AA, requiring an employer to communicate the
employee’s choice to the union, at the employee’s option, will enhance this
framework. It will also operate to facilitate unions in meeting the needs of prospective
new members effectively.
40 We support the consequential changes in clauses 19 and 20.
Trial periods
41 We support clause 29, restricting trial periods to employers employing fewer than 20
employees, insofar as it limits the current universality of the provision. We note that
this restores the original trial period provision, passed under urgency in 2008, and
operative from 2009. The trial period provision was extended to all employers in
2011.
42 The limitation to 20 or fewer staff, now repeated in clause 29, reflected the general
definition of small to medium size enterprise (“SMEs”). The policy rationale for this
restriction to SMEs in 2009 was that, in relation to procedural requirements preceding
dismissal, small businesses often "face higher recruitment and dismissal costs relative
to large employers" and are "more adversely affected compared with other sized
businesses, as they are unlikely to have dedicated human resource procedures and
personnel". 12
43 Although the National-led Government argued that trial provisions were intended to
assist disadvantaged employees, this seems an inherently unlikely motivation given
the overriding policy thrust of its employment legislation. To the extent that it might
have been included in the policy impulse, it was convincingly laid to rest by the 2016
Working Paper published by the New Zealand Treasury. 13
44 This paper found no evidence that the introduction of the 90-day trial period had
significantly increased firms' hiring and also found no evidence that the policy has
increased the probability that a new hire by a firm is a disadvantaged jobseeker, such
11 Office of the Minister of Labour, Employment Relations Amendment Bill 2012: Paper One – Collective Bargaining and Flexible
*Work Arrangements, paper for the Cabinet Economic Growth and Infrastructure Committee, 3 May 2012 (emphasis
added).
12 Employment Relations Amendment Bill 2008 (explanatory note) at 1, 7.
13 Nathan Chappell and Isabelle Sin, The Effect of Trial Periods in Employment on Firm Hiring Behaviour, available at http://motu-
www.motu.org.nz/wpapers/16_10.pdf and http://www.treasury.govt.nz /publications/research-policy/wpas a young adult, young Māori, beneficiary or recent migrant. The authors concluded
that the main consequence of the policy was to reduce dismissal costs for firms and
to increase uncertainty around job security for employees. We infer from the obvious
nature of this consequence that the introduction of trial periods was aimed at
achieving it.
45 A survey of employers then recorded that 27 per cent of employers had dismissed at
least one employee during or at the end of the trial period. 14 In each case, the
employee would have been left without a legal remedy or even explanation for
unjustifiable dismissal, no matter how unfair the employers’ behaviour was. The
resulting damage to their self-confidence, self-esteem and employment prospects
does not require elaboration.
46 In the case of social security benefits, given the absence of the right to raise any
unjustifiable dismissal grievance in respect of a trial period dismissal, the applicant's
ability to deal with a finding of misconduct or voluntary unemployment under section
60H of the Social Security Act 1964 is significantly impaired. Clearly, the removal of
the right to bring an action for unjustifiable dismissal leaves no scope for testing
contested allegations around misconduct or voluntary unemployment for those on
trial periods. In our experience, the existing internal policy guidelines 15 are
inadequately understood and inconsistently applied by MSD case managers and the
review and appeal process under the 1964 Act is slow-moving and labyrinthine.
47 The many other policy reasons for not adopting trial periods have been convincingly
set out elsewhere and need not be repeated. 16
48 Whilst we support any restriction of the current trial period regime, we submit
therefore that the restriction in clause 29 does not go far enough. In our submission,
there is simply no justification for removing the basic right to natural justice from any
new employees, no matter that they are employed by a small to medium-sized
employer.
49 We submit, instead, that sections 67A and 67B should be repealed in their entirety.
Amendments to Part 6A: Transfer of undertakings
50 Part 6A was originally introduced to protect some of this country’s most vulnerable
workers – caretakers, cleaners, catering workers, hospital orderlies and laundry
workers – against the risk of new contractors underbidding existing providers by
cutting the wages and conditions of the existing workforce. Enabling existing workers
to transfer to new owners on their existing terms and conditions was an essential
element of this framework under Part 6A.
51 Many beneficiaries, and/or their partners, are dependent on this very type of
employment, given the wide spread of hours which are available. A high proportion
of these vulnerable workers are Māori or Pasifika workers.
14 Evaluation of the Short Term Outcomes of the 2010 Changes to the Employment Relations Act and the Holidays Act (Ministry
of Business, Innovation and Employment, June 2013), available at http://www.dol.govt.nz/publications/research/short-term-
outcomes-2010-changes-era-and-ha-pdf.
15 For the internal guidelines see https://www.workandincome.govt.nz/map/income-support/main-benefits/jobseeker-
support/deciding-non-entitlement-period-for-voluntary-unem-01.html
16 Jeff Sissons and Bill Rosenberg, "90-Day Trial periods: Nostrum or Panacea?" [2014] ELB 18.52 The 2013 Review of the Operation of Part 6A concluded that the law was operating
well and particularly in terms of providing job security and stability for employees who
lack scarce skills and are at risk of unemployment. 17
53 A subsequent review by the Department of Labour suggested that exempting small
to3medium sized businesses would be likely to lead to “a breakdown in the exercising
of the provisions at all”. 18
54 Notwithstanding this, the 2014 amendments, which this bill reverses, took exactly
that course. Again, it follows inescapably that the real object of these amendments
was to further weaken the position of some of the most vulnerable workers in the
country, again enabling them to be exploited in a further race to the bottom by
successive contractors.
55 For this reason, we strongly support clauses 30 to 34, which reverse the 2014
amendments and restore key protections under Part 6A.
56 This measure protects workers who, by definition, are already vulnerable whilst
levelling the playing field between SMEs and other businesses. It will also benefit
workers indirectly by encouraging businesses to compete around productivity, rather
than focusing on wage cost reductions.
57 In terms of provisions building on the original Part 6A, we support the extension of
the required information to disciplinary matters under proposed section 69G(2)(e)(ii),
which will enable employees to review this information and exercise a right of
correction. We also support the revised 10 day time limit under proposed section
69G(1)(d), which will more effectively enable vulnerable workers to seek legal advice
about transfer and to check transfer information for accuracy.
Amendments to Part 6D: Rest and meal breaks
58 We support clauses 35 to 37 of the bill which restore the right for workers to have
fixed “reasonable and practicable” rest and meal breaks.
59 Those provisions were again replaced in the 2014 amendment by a permissive regime
reliant on notional “agreement” between the parties. This had a predictably adverse
impact on the very groups whom the original Part 6D was designed to protect. These
included vulnerable workers in sectors such as service and manufacturing and
particularly the young, alongside other vulnerable new entrants such as those
transitioning from a benefit. For these groups, a regime for rest and meal breaks
resting on managerial prerogative often left inadequate entitlements from the point
of view of health and safety and general work/life balance. 19
60 The inherent imbalance in power recognised by section 3 meant that the “flexibility”
17Department of Labour, Report of the Advisory Group on Contracting Out and Sale and Transfer of Business to Minister of Labour,
April 2012.
18 Department of Labour, The Findings of the Review of Part 6A of the Employment Relations Act 2000, October 2012.
19 As recognised in Cabinet paper dated 20 August 2009, Proposed Amendments to Rest and Meal Break Provisions, Tracker No.
09/88038, para 13.provided to employers after 2015 has impacted adversely on workers, and particularly
vulnerable workers. The often imposed, but notionally “agreed”, breaks may not give
adequate time to rest, refresh, and attend to personal matters during work hours.
Further, fatigue arising from an absence of adequate breaks is a well-recognised
health and safety risk.
61 Whilst breaks are required to be “reasonable” under the permissive regime
introduced in the 2014 amendment, workers who “agree” to breaks before they begin
work will not usually be able to assess how many breaks they will require and of what
duration. Existing workers are unlikely to challenge the reasonableness of breaks due
to uncertainty about what “reasonable” means in this context and reluctance to
challenge the employer by raising a claim. Objective reasonableness is ultimately only
determinable at the point of challenge and requirements for “reasonable and
appropriate” breaks provide little practical protection when the groups most likely to
be adversely affected are also the very groups least able to challenge such unlawful
behaviour.
62 For these reasons, we strongly support the reinstatement of the original rest and meal
breaks provisions. The proposed provisions provide the necessary mechanisms to
negotiate around desired flexibilities whilst maintaining a default position as a
safeguard for employees who are likely to lack the necessary power to protect a
minimal level of entitlement. They also provide a workable alternative for those
exceptional cases where an exemption is required in proposed sections 69ZEA and
69ZEB.
63 We suggest one amendment. The proposed s 69ZH(2), which repeats the original
drafting, states that where a person is “required” to take a “rest break” by, or under,
another enactment that requirement applies in place of those provided for “rest
breaks or meal breaks” under Part 6D. In Greenslade v Jetstar Airways Ltd 20, the Full
Court observed that this provision "has the effect of negating not only a Part 6D rest
break, but also a Part 6D meal break if there is any rest break requirement under
another enactment, even if that rest break requirement is only minimal and
manifestly inferior to the entitlements to rest breaks and meal breaks under Part 6D".
64 In our view, the proposed subsection (2) to s 69ZH could be dispensed with altogether.
If it were to be retained, it could be redrafted so as to state plainly that if a person is
required to take a rest break or a meal break by or under another enactment, that
requirement applies in place of the rest break or meal break, as the case may be,
under Part 6D.
Amendments to Part 8: Strikes and lockouts
65 We support clauses 21 to 23, which repeal the ability of the employer to deduct pay
from employees who are still performing broad employment tasks whilst engaging in
partial strike action, regardless of the scope of the strike action. By way of illustration,
the provisions have resulted in workers having a flat rate deduction from their pay for
low-level action such as wearing union t-shirts in place of standard uniforms.21
66 These changes to the law governing strikes in the 2014 amendment were clearly
designed to undermine collective bargaining by making it more difficult to take
20 [2014] NZEmpC 23.
21 https://www.stuff.co.nz/business/88154183/st-john-ambulance-staff-face-10pc-pay-deduction-for-industrial-actionindustrial action during negotiations. Again, this weakening of workers’ bargaining
position was clearly significantly detrimental to their interests, and particularly the
interests of workers on low pay; inconsistent with the statutory objective of
promoting collective bargaining; and in breach of Aotearoa/ New Zealand’s
obligations under International Labour Organisation Convention 98 on the Right to
Organise and Collective Bargaining.
67 The provisions would also predictably have caused disputes to escalate, to the
advantage of neither party.
68 We submit that a further related change is needed to Part 8, by repealing the
requirement to give notice of industrial action under section 86A and section 86B. The
rationale for these provisions, when inserted in 2014, was tied firmly to the need to
be able to calculate the proportionate pay deductions for partial strikes 22 which are
now to be repealed. If retained, it is predictable that they will operate to encourage
employers to engage in weakly arguable injunction proceedings as a delaying tactic,
23 and further prolong disputes.
Amendments to Part 9: Personal grievances, disputes and enforcement
69 We support clauses 24 to 27, extending the grounds for a discrimination grievance by:
including an employee’s union membership, so preventing employers from
dissuading employees from free choice;
enabling union members to negotiate different conditions through collective
association, and protecting them through a collective agreement recognising
the benefits of that arrangement; and
extending the time frame for consideration of union activities as
discrimination, which should operate as a further deterrent to discriminatory
behaviour.
70 Union membership is a crucial aspect of freedom of association, promoted by section
3 of the Act. The policies adopted by National-led governments over the past nine
years have encouraged those employers minded to discriminate against unions to do
so, through activities ranging from obstruction of union representatives to
undermining collective bargaining. As illustrated by the case law, some employers
have attacked unions and their members relentlessly, attracting strong criticism from
the courts, including the Court of Appeal. 24
71 We also support clauses 38 and 39, restoring the role of reinstatement as the primary
remedy for a personal grievance. Reinstatement is the only remedy that fully
recognises the lack of justification in dismissing an employee, by restoring them to
their original job. This will also enhance to incentive to settle personal grievances.
22Office of the Minister of Labour, Employment Relations Amendment Bill 2012: Paper 1 – Collective Bargaining and Flexible
Working Arrangements, 3 May 2013, 24.
23 As in Lyttelton Port Co Ltd v The Rail and Maritime Transport Union Inc [2018] NZEmpC 13.
24 AFFCO New Zealand Ltd v New Zealand Meat Workers Union Inc [2016] NZCA 482.72 We submit that a further change is required to Part 9.
73 In 2011, the test for justification of dismissal or other disadvantageous action in s 103A
was changed from what a fair and reasonable employer “would” have done, to what
a fair and reasonable employer “could” have done.
74 This reinstated a test introduced under the Employment Contracts Act 1991, which
had markedly restricted the Employment Court’s ability to reach its own conclusions
on justification. For example, and remarkably, in introducing the test of what a fair
and reasonable employer “could” have done, the Court of Appeal had observed that
a dismissal might be seen as “harsh” but also fair. 25
75 In 2004, the select committee considering the amendment of that year examined the
substituted test of what a fair and reasonable employer “would” have done. The
majority correctly took the view that determining objective fairness required a court
to draw its own conclusions on the facts and that the guideline of asking what a fair
and reasonable employer “would” have done reflected this reality. 26
76 In our submission, therefore, the test of justification should be restored to that
inserted in 2004, a test which asks what a fair and reasonable employer would have
done.
Written submission only
77 We do not request to be heard orally on this submission.
25 W&H Newspapers Ltd v Oram [2001] 3 NZLR 29. .
26 Employment Law Reform Bill as reported from the Transport and Industrial Relations Committee, Commentary, 16.You can also read
