Moving our labour laws beyond ideology
It comes as no surprise that the new coalition Government’s early moves around labour law reform have attracted loud criticism.
In all my experience dealing with employment law over decades, it is often the case that ideology trumps evidence on either side of the debate. So perhaps judgment about the new Government’s programme of reform can be assessed by asking a few simple questions:
■ Is the reform package conducive to decisions about employment being made as close as possible to the action – in the workplace?
■ Are the changes likely to improve accessibility to work for those who are often at the margins – young people in the regions, for example, or mothers returning to work?
■ Do the changes adequately protect workers, especially given that the best protection for any worker is to have a good quality, well remunerated job?
■ Do the changes help ensure that New Zealand becomes more productive and prosperous over time? And will workers have an adequate opportunity to share that prosperity if it occurs?
If we look at the Government’s agenda using that kind of framework, most of the changes do assist in leading to those outcomes.
It is a good thing the fair pay agreements legislation is gone. Fair Pay Agreements were effectively the old national awards in all but name. As one who negotiated national awards for years, it was always clear to me they tended to protect incumbents, slow down change and reduce flexibility. The real impacts were felt by those who were already excluded from the labour market and whocouldn’tfindawayin.Italsoledto firms being less competitive, flexible and capable of responding to rapid change.
The 90-day probation period policy has reappeared, primarily aimed at small businesses. The best thing about this policy is that it will encourage employers to take a chance on someone who otherwise might not get one.
Likewise, proposed changes to health and safety laws seems to be an attempt to get these laws operating properly in the real world of the workplace.
To put it simply, if government agencies seek compliance from employers and make them fearful about liabilities if they do not comply, then the outcome will be exactly what the agency seeks: compliance – no more and no less.
Modern health and safety frameworks should be about having a base of compliance for the recalcitrant, the unthinking and the downright dangerous. For the vast majority who are seeking to do the right thing, a much more partnership-style approach will more likely lead to learning, innovation and “beyond compliance” activity.
Signalled reform of the Holidays Act is also well overdue. This law was enacted at a time when the vast majority of people worked 9-5, Monday to Friday. The definitions in the act are ludicrously out of date and unfit for purpose. The last government realised this and put in place a working party to try to modernise it, without success.
Modernising the Holidays Act will enable employees to get their proper entitlementsandatthesametimemake the legislation relevant and simple.
There are, however, other steps on which the Government needs to focus to rebuild the high-quality jobs that New Zealanders deserve.
The first relates to the way in which New Zealand businesses operate in global supply chains. Those firms are increasingly being asked to confirm their compliance with a raft of international responsible-business-conduct standards and recommendations, including those promulgated by the OECD and the EU.
In this context, New Zealand’s labour law is no longer just about domestic concerns, it is also about assuring others internationally that we are acting appropriately.
One example is modern slavery standards, with a number of organisations and people rightly calling for the introduction of modern slavery legislation in New Zealand. From an employer’s perspective, the key thing that modern slavery legislation needs is a monitoring and compliance framework to ensure that slavery does not exist, and to enable action if there is a risk of slavery.
In this context we can look to Australia’s modern slavery legislation, particularly given the fact that we aspire to a single economic market between our two countries. Many of the companies complying with it on that side of the Tasman will also be operating here. We should strive here for appropriate legislation, while aligning ourselves with our Australian colleagues.
The second complementary issue to labour law reform relates to supportive labour market institutions, such as technical education. High quality jobs won’t come through employment legislation alone. Te Pūkenga, the New Zealand Institute of Skills and Technology, is abolished. If its replacement is not made clear soon, frustrated employers will turn to their own methods to solve the skills gaps, leading to a far less efficient and standardised skilling system in New Zealand.
Government needs to move forward in ensuring that as many New Zealanders as possible are employed in high quality, well remunerated work. That is about ensuring that our labour market is fit for purpose for the 21st century.
We should judge government performance on the basis of workplace productivity and shared prosperity, rather than using old, ideological lenses.