Four key principles of NZ labour law
Professor Gordon Anderson from Victoria's Faculty of Law outlines what is necessary to support and enhance the Employment Relations Act.
8 November 2017
One of Jacinda Ardern’s first acts, even before being sworn in as Prime Minister, was to address the annual conference of the New Zealand Council of Trade Unions. That priority suggests there may be an appetite for returning to a bipartite foundation to labour law, an opportunity that was largely missed in the Employment Relations Act 2000. One key value embedded in that Act, the statutory obligation of good faith, has however become established as a central feature of New Zealand labour law, and is an exemplar of the values fundamental to any equitable system of labour law. I would like to suggest here a further four principles required in any contemporary system of labour law to support and enhance the key objects of the Employment Relations Act.
All New Zealanders employed to personally perform work have the right to be protected by a set of minimum employment standards
It has long been recognised that the law should provide a minimum floor of employment standards protecting all New Zealand employees. Indeed, the National government introduced a number of important reforms to reinforce this principle. However, many modern employment practices are designed to avoid such protections and have had the effect that many workers who are indistinguishable from employees are not entitled to these protections. The “Hobbit Law” provided a legislated example of this but in the longer term the problem will be most acute for those working in the marginal areas of the gig economy, be it Uber drivers or those working through online platforms.
A priority of any reform must be to ensure the floor of employment rights is extended to everyone who is contracted to personally perform work, whether or not as ‘employees’. Such a reform does not undermine flexibility, it merely sets the minimum rights society requires for any worker.
All employees have the right to freely choose to be represented at work and have an effective voice at work
If workers are to have an effective voice in their workplace, they need the right to effective representation through a trade union or alternative mechanisms that allow them to express themselves. Three, non-exclusionary, reforms are necessary to properly ensure the right to voice. Most importantly, employers must be obliged to maintain a position of partial neutrality in relation to union membership. While the New Zealand Bill of Rights protects the right to freedom of expression, employers’ rights can be justifiably restricted in order to ensure workers are able to freely make a choice in relation to union membership in the absence of employer pressure. Any conduct likely to place unwanted or unreasonable pressure on individual workers in relation to membership should be prohibited. Second, union members, and indeed employees generally, should always have the right to elect a workplace delegate with the rights necessary to represent the interests and concerns of those employees to management. Finally, employees should have the right to choose to establish workplace representative committees in order to facilitate the promotion of voice and “productive employment relationships”.
Obtaining decent conditions of work requires effective collective bargaining
The government’s proposed restoration of the requirement to conclude a collective agreement will provide a solid foundation for collective bargaining but to be fully effective further key reforms are needed. First, the current law allows an employing entity to structure itself as separate legal entities, allowing it to maintain strong centralised control over bargaining while weakening employee and union strength by splitting employees into “independent” units. For the purposes of collective bargaining, an “employer” should be defined in economic and not legal terms as being any group of companies operating as a single economic unit. Multi-employer bargaining should be defined as bargaining with economically independent employers – effectively industry or occupational bargaining. If collective bargaining is to be effective, the current impasse processes should be strengthened to encourage settlements and include power for the Employment Relations Authority to make binding recommendations on at least some core terms, particularly for the proposed Industry Standard Agreements.
All workers are entitled to respect and the protection of their personal dignity
A well-known comment about guest workers in Europe was “we asked for workers and they sent us people”. Workers are first and foremost people – employees are a legal construction. The common law, and many employers, view employees as subordinate and owing an undefined duty of fidelity, a term redolent of serfdom, to their employer. The courts have constantly expanded the range of increasingly intrusive and restrictive controls on, and monitoring of, employees both within and outside work. Human rights and the right to personal dignity should not stop at the workplace door. There is therefore considerable merit in developing a statutory provision to make it clear employment relationships must respect and protect the dignity of workers and recognise their right to personal and family life, including the right to participate in society as citizens, and allowing the Employment Relations Authority or the Employment Court to declare invalid clauses or employer policies that are either harsh or oppressive or constitute an unreasonable intrusion on the employee’s privacy personal dignity, personal life or rights as a citizen. The rapidly expanding ability to monitor and control employee lives in great detail makes this reform urgent.
Together, the above principles would signal a commitment to a pluralistic vision of labour relations in the context of the twenty-first century and to something of the pluralist vision that was the philosophical foundation of the arbitrations system. They lay down key legislative foundations to promote genuine pluralism and an effective worker voice, and to reassert that workers are not a commodity but are entitled to the full benefits and rights of citizens in a democratic country.
For an expansion of these arguments, see this paper.
Transforming Workplace Relations in New Zealand 1976–2016 edited by Gordon Anderson with Alan Geare, Erling Rasmussen and Margaret Wilson is published on November 9 by Victoria University Press.