The NZ Council of Trade Unions have launched a campaign to organise against the new laws.  Here are some suggestions from one union, the EPMU, about what employees can do:

If you’re in a union …

… you can use your union to demand that your employer treat all employees – new and long-serving – fairly. Demand that your employer respect your choice to belong to a union and ensure your organiser has access when you need it, not when the boss agrees to it. Let your delegate know and call a meeting in the smoko room to discuss it. Ask your employer to sign a pledge not to use these laws.

If you’re negotiating your collective agreement soon, put up claims for clauses that prevent the employer from abusing the 90-day no-rights law and the union obstruction law. It is not against the law to have clauses that say your employer won’t use these bad laws. …

If you’re not in a union …

If you’re not in a union talk to your workmates. Tell them they can do something about these unfair and unjust laws. Tell them they have a right to tell their employer what you expect as a workforce. If you want some help call Freephone 0800 186466 or email us on us@epmu.org.nz.

Whatever you do, never accept unfair actions by an employer. Make your voice heard.

The EPMU have an online petition you can sign in support of fairness at work, with an option to sign up for campaign updates from them. The NZCTU also have an action page with a campaign update sign up option.

This afternoon I was disappointed to learn that Green Cabs had last Friday fired Millie Francis without notice and without warning, supposedly under the Government’s 90 day fire at will legislation, and that there was going to be a Fairness at Work protest outside Green Cabs’ Wellington office to call for her reinstatement.  As the Green MPs were required to be at Parliament – ironically, debating under urgency the Government’s extension of the fire at will legislation to all workplaces – I decided to hop along to the protest myself.

On arrival, I was greeted by a rousing performance from the Brass Razoo Solidarity Band, and speeches in support of Millie’s reinstatement.  I discovered that Millie’s dismissal was similar to that of Heather Smith, the sacked pharmacy worker whose case the NZCTU had highlighted.

Millie has over 20 years’ experience in the taxi industry, although she had been working at Green Cabs for only two months. But she had already been working for Green Cabs for a week when she was asked to sign the agreement with the 90 day trial clause, so was not technically a “new employee”.

On that basis if Millie’s case proceeds to the Employment Relations Authority, she is likely to win, but that might take months.  There are encouraging signs that Millie’s case may be able to be resolved earlier though. As the protest was about to break up a member of Green Cabs’ management came out and began discussions with NZ Council of Trade Unions Secretary Peter Conway.

You can help Millie, and help prevent other workers being treated unfairly, by:

• Calling Green Cabs (0508 447 336) and ask that Millie be reinstated – remember that your call will be recorded.
• If you are catching a Green Cab, talking to the driver and encourage him or her to pass on the “reinstate Millie” message to management – remember that the union action is not against the drivers, so be polite.
• Supporting the NZ Council of Trade Unions’ Fairness at Work campaign and local actions against the 90 day “trial periods” taken by workers, their unions and families and friends.

Millie’s case highlights why being a union member is a good idea too.  Her union and the NZ Council of Trade Unions were able to quickly clarify her legal position in respect of the fire at will legislation, and organise to encourage her employer to negotiate her reinstatement.

Their “crime”, apparently, was to stick up for another worker who was a recent immigrant, and was being victimised in a racist manner by the employer.

This family is now off off to Oz. Goodo, Kate Wilkinson and John Key! Does “closing the gap” with Australia really have to mean sending our families there because they fear they have no future in New Zealand?

Here’s Aaron Greave, a Timaru chef who was purportedly dismissed under the 90 day trial provisions for using too much sauce and aioli – without even being given a warning and without any right to challenge his dismissal:

If it is passed in its current form, this Bill will:

• extend the fire at will provisions under which employees can be dismissed without reason the first 90 days of their employment to all businesses (clause 12)

• restrict the ability of employees to talk to their union representatives about what is going on in their workplaces (clauses 5 & 6)

• expand the circumstances in which the dismissal of an employee can be justified, and allow employers to use unfair processes in dismissing employees (clause 14)

• allow employers to attempt to undermine collective bargaining by bypassing employees’ elected representatives (clause 9)

• remove the requirement that a sacked employee getting his or her job back should be the first priority if he or she is found to have been unfairly dismissed (clause 15)

I hope you can find the time to submit in opposition to these proposals in the Bill.  The NZ Council of Trade Unions has provided a handy submission framework for making submissions via them on-line.  Please amend it to stress the points you think are most important, and add more detail and things from your personal experiences and knowledge if you have the time.

And remember the deadline – Monday 13 September, 2010.

Heather has now had her day in the Employment Court, and has won.  I don’t have a copy of the Court’s judgment yet, but NZCTU President Helen Kelly’s media release states:

“This law was rushed through Parliament without a proper select committee process and therefore has to some extent failed to achieve what the Government set out to do, creating a high risk for employers that have already sacked workers unfairly under the scheme. The Government intended to allow the reckless dismissal of workers without reasons and without giving reasons. What the Court has found is that the Good Faith requirements prevail and while an employer still may not have to have reasons, where they do, and where they are considering dismissing someone – they will need to tell them.”

“Heather’s employers relied on the law to completely indemnify them from any standards of decent employment practice. They have been found to not only have breached good faith requirements but even the terms of the employment agreement they entered into her with.”

“The disgraceful thing is,” said Helen Kelly, “that the policy intention of the Government is to remove from Heather and every other worker employed on a 90 day agreement the right to take a case against unfair dismissal.”

It will be interesting to see the Government’s response.

Although this is a big victory for Heather, and gives some hope to other sacked workers on 90 day trials such as Florence Cohen, whose employer may have breached the good faith provisions in negotiating her employment agreement from what Florence says here, it is only a small victory for fairness in the workplace. Many employers will still be able to legitimately dismiss workers without reason and without the worker having any right to challenge the dismissal.

The fire at will law needs to be repealed, not extended.

UPDATE: You can now view a copy of the full judgment here (PDF 2MB). Makes very interesting reading.

For those who missed Heather’s story first time around, here it is:

On July 18 2010, John Key announced the National Government’s plan to drastically change employment law in New Zealand. If passed, the changes will take away workers’ rights, remove protections, cut pay, reduce holidays and diminish access to sick leave.

The NZ Council of Trade Unions are kicking off the fightback against these attacks on workers’ rights with Fairness at Work rallies in Auckland, Wellington, Christchurch and Dunedin. Please mark these dates and times in your diary now, and join Fairness at Work on Facebook.

Auckland
1pm, Saturday 21st August
QE2 Square (bottom of Queen St, opposite Britomart)

Wellington
1pm, Saturday 21st August
Civic Square

Christchurch
1pm, Saturday 21st August
Cathedral Square

Dunedin
11am, Sunday 22nd August
Assemble at Dental School, Great King Street
March to rally at the Octagon

You could end up being treated like Florence if you take on a new job, because the Government intends extending its Fire at Will law to all employees in their first 90 days of a new job.

Please join the Fairness at Work rallies this Saturday and Sunday:

• Auckland: 1pm, Saturday 21st August, QE2 Square (bottom of Queen St, opposite Britomart)
• Wellington:1pm, Saturday 21st August, Civic Square
• Christchurch:1pm, Saturday 21st August, Cathedral Square
• Dunedin: 11am, Sunday 22nd August, Assemble at Dental School, Great King Street, March to rally at the Octagon

[Disclaimer: For the information of those who are running silly distractions because they have no evidence to back their support for the Fire at Will law, Florence Cohen is not a member of the Green Party - even though she is young, clever, and articulate.]

Update: Another similar story is at http://www.youtube.com/watch?v=P3yTjbkxEdw

Please support the NZ Council of Trade Unions’ Fairness at Work campaign.

Here he is telling NZPA: 

Mr Key said the unions were hyping up the ability of employers to sack workers, and they had got it wrong.

Employers could not just fire someone at will, and had to give the sacked worker a reason.

“You can say it didn’t work out, but you have to say why it didn’t work out,” he said.

Wrong! Take a look at the actual fire at will legislation, section 67B of the Employment Relations Act: 

…the employer is not required to comply with a request under section 120 that relates to terminating an employment agreement under this section. 

Section 120 states: 

(1) Where an employee is dismissed, that employee may, within 60 days after the dismissal or within 60 days after the employee has become aware of the dismissal, whichever is the later, request the employer to provide a statement in writing of the reasons for the dismissal.

(2) Every employer to whom a request is made under subsection (1) must, within 14 days after the day on which the request is received, provide the statement to the person who made the request. 

John Key has got this completely wrong. An employer is clearly not required to tell an employee dismissed during a trial period the reasons for his or her dismissal. Either Key is blatantly lying, or he is completely ignorant of his own Government’s legislation.

The research is a shonky piece of work. The methodology identifies the following limitations. 

Due to resource constraints, this evaluation included employees only in the qualitative, not quantitative research. As a result, it provides an understanding of issues for employees on trial periods, but does not give an idea of how widespread these issues are.

So the employees’ perspective of how the fire at will law is working was gained by interviewing a grand total of just 13 employees and 2 union officials! 

The employer database, which was the sampling frame for the initial survey, had incomplete employer contact information. As a result, many employers had to be excluded from the sampling frame. Hence, the survey results may not be truly representative of employers in the country. 

The quantitative research using the Department of Labour’s employer database involved an initial short phone call, with a request to complete a follow-up on-line or postal survey. But only 23% of the 3352 employers the DoL attempted to contact actually completed the follow-up survey, and those who did were self-selected. The sampling bias introduced by that selection method makes the quantitative research almost worthless – employers with strong views supportive of trial periods  are obviously going to be more likely to respond. 

The research findings themselves, even with the shonky methodology, are equivocal: 

Most employees were retained past the trial period, with just under a quarter dismissed using the provisions of the trial period. Performance was the main reason for dismissal. There was no data readily available with which to compare this dismissal rate with that of dismissals by small firms prior to the introduction of trial periods, but this is an important area to look at further. 

The ability to use trial periods appeared to have encouraged 40% of employers who had hired someone to do so, however without any counterfactual evidence it cannot be stated categorically that trial periods had created extra job opportunities. The international literature suggests that exemptions to employment protection legislation, such as the trial period legislation, increase both hiring and firing but have an unclear overall impact on unemployment. [my emphasis]

So much for John Key’s assertion that “The results of that have been stunning, it has ensured that a lot more New Zealanders have the opportunity to engage in work.” It’s nothing but spin, and the extension of the fire at will provisions appears to be driven by ideology and a perceived need by National to grease up to militant employers. 

The good news, though, is that the fightback has started with over 500 people joining the NZ Council of Trade Unions organised protest against the proposed attacks on workers’ rights outside the National Party Conference in Auckland this morning.

After a bit of waffle about the cost of personal grievances and the quality of employment advocates, the document cuts to the quick: 

The Act contains an objective test for justifiable dismissal. Do you think the current test is appropriate or does it create uncertainty? If it creates uncertainty, can you please describe the areas that create uncertainty?
For example:

     i.what are your views on whether sufficient or too much emphasis is given to process rather than substance in a case?

      ii. do you think minor irregularities in process should be given less emphasis than the actual substance of the personal grievance claim? 

Or to paraphrase, “should an employer be able to get away with sacking an employee, even though the sacking was unfair?” 

My answer to that one is an emphatic “No”, but the question seems to be worded to elicit the opposite response. 

It gets worse! 

Possible options are dependent on the findings from the review of the personal grievance system and your submissions on the following options:

• employees’ length of service (regardless of whether the employee is on a trial period) – employees would need to be employed at the same workplace for a specific period of time before they are eligible to raise a personal grievance
• extending the trial period beyond the current duration of 90 days for organisations with fewer than 20 employees and/or extending the personal grievance-free period during trial periods to medium-sized businesses (20-49 employees)
• reducing the current 90 day limitation period for raising a personal grievance with an employerreducing the current three year limitation period for lodging a personal grievance in the Employment Relations Authority or Employment Court so as to minimise the effects (financial, social and personal costs) arising after a considerable amount of time on parties

It sure doesn’t look pretty from a worker’s perspective. Repealing the Fire at Will law – remember, the one that was rammed through Parliament under urgency without any public submissions or Select Committee hearing at all – which already allows employers with fewer the 20 employees to sack them for no reason at all during the first 90 days of their employment isn’t even an option provided.  I suggest you write it in. 

Submissions on the discussion document can be made by 31 March 2010 through this response form (expand the response boxes as much as you want).  Email it to ERconsultation@dol.govt.nz or post it to: 

Review of Personal Grievances
Workplace Policy Group
Department of Labour
PO Box 3705
Wellington

It is this sort of ambiguity that would have been picked up and corrected at a select committee. Ramming this through under urgency is just the sort of activity National cried foul about before the election. (Except in Labour’s case, select committee hearings actually took place.)

Isn’t it too bad that the National government itself isn’t subject to the 90 day fire at will provision themselves?

How on earth can the public engage in the discussion if they can’t get access to the bills. So we’ve scanned the bills and made them into PDFs. Here they are:

Bail Bill

Education Bill

Biofuel Repeal Bill

Sentencing (Offences against children) Amendment Bill

I think an electronic version of the ‘fire at will’ bill is available but I will post it here anyway.

Fire at Will Bill

What this means is that MPs are going to have to vote and debate bills they will not see until it is tabled. This gives the first opposition speaker ten minutes to read the bill before they have to speak on it. And as the Greens are the fifth speaker, it gives us 50 minutes from getting the bill to speaking on it.

Then there is no select committee process for the public to make submissions on the bills.

This is not a democratic way to make law and it is not a way to get good law.

UPDATE – Gerry made the bills available just before the House rose at midnight. So we’ll have a few more hours to read them before we debate them.