Govt's 90-day probation plan 'undemocratic' - Goff

www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10547238

does legislation like this really need to be rushed through parliament with no public consultation - I am with Mr Goff

i guess they are looking for any measures they can to contain unemployment figures rising.

you are missing the point

employers have rights too!
the right to fire yo ass for no good reason

I agree with Goff but to be truthful, his government rammed through plenty of legislation in a similar manner without sufficient debate

true that JH, good point

however national stated they wouldn't be introducing this bill as part of their first 100 days... and now they have....

*drum roll please*

FLIP FLOPPED and lied

but apart from this the bill is still a mere (wrong) in my view

from a PR perspective the timing is bad as well - kick the workers in the guts (perception of) in the run up to christmas...

(hat tip to Public Address as I am borrowing some ideas from the conversation over there)

okay didn't realise that

not good

They seem to think its going to have a positive effect on unemployment by making employers less cautious I guess.

But wont it lead to employers hiring people at busy times for the 3 months then dumping them when things drop off?

A lot of business's experience bursts of activity and this will be the perfect way for them to hire and fire people during those times.

Fuking gay idea really.

ghey idea business loves

loads of room for the legislation to be abused I would wager

unions not happy (surprise surprise)

will be interesting to see the Maori parties reaction - will they support National or do right by their constituants?

could the honeymoon be over before it starts?

how will middle NZ (who tend not to bother with the specifics of issues) react?

I hear that santa's elves are not happy as they are only really busy 2-3 months a year...

What this means is your boss can say - within the first 90 days - that you suck his dick or you're fired. Say no, no right of appeal at all.

That's my initial thoughts.

I'd need to read the actual bill that's being proposed to see how it's really intended to work.

The way it's currently being reported is that it's a 90 day carte blanche for employers to sack at will without the fear of unjustified dismissal claims being brought against them (although it does allow for grievances against sexual harrasment and discrimination).

Read that way, I think that's pretty ridiculous, to be honest. It also doesn't seem to have been fully considered in line with the wider ERA for eg:

If I here you knowing that I fully intend to sack you within 80 days, then where is the 'good faith' that the ERA so stringently requires for in an employment relationship? And if we open this door to allow this to happen, then principally, are we also accepting that down the line the philosophy and intent behind the ERA is going to be fundamentally changed?

I just think that it needs more discussion. But meh. I wonder if National will learn from Labour's mistakes that sometimes, not listening to the public on the smallest issue can prove to be your downfall.

It's also targeted at small businesses which, in my understanding, is the very segment where most of the breaches of employment legislation occurs - whether through ignorance, lack of understanding or just blatant disregard.

That would come under sexual harrassment wouldn't it? They've changed the bill to allow for PG's against harrasment and discrimination (from what I've read in the media)

the potential employee has to consent to being hired under the pretense of the 90 'suck my dick' clause

but with the growing unemployment rates, who is going to say no?

This is a storm in a tea cup and much of it is due to deliberate misinformation and fear mongering on the part of unions. Many countries have such clauses as standard already (i believe NZ is in the small majority who dont). Also many industries practice (with union consent) the same or similar. The last place i worked under the empu had 60 days with 1 week notice (1 week with no notice, 2 weeks with 24 hours etc).

The benefits are:
The employer is less likely to get lazy/incompetent people.
Small businesses are able to take on people to give it a go, greatly increasing the chances of generating continual full-time employment.
Unskilled people get a chance to prove themselves where before there would be a lot of small businesses who wouldnt want to take the chance.
The cons: some people will abuse it - it happens already but this law doesnt give employers the ability to be unfair, dishonest or abusive, to do so would result in fairly hefty fines.

I'm not against a probationary period.

But I think a "sack-at-will" approach is rather scary.

In countries where a probationary period is legislated for, there still exists a certain set of rules in which the employee has recourse if he/her feels that they have been unfairly treated.

I definitely think that the ERA can be relaxed a little to allow for probationary periods (which it already does, only too stringently). But not allowing any recourse or claims for unjustified dismissal is perhaps a little too extreme.

But like I said, I haven't read the proposed bill. I may also be taking the media reports literally when they say that there won't be any claims against 'unjustified dismissals' which in the ERA, covers a several situations... especially the 'unjustified' bit.

Why don't employers just fucking institute a proper, rigorous interview etc. process to ensure people can do what they say they can do?

I'll give you an example - the Army has a 4-day selection board for wannabe officers. Surely it'd be smarter to impose some sort of system rather than demand people take jobs and then get sacked.

Heh, half the people who apply for our manufacturing jobs dont even have access to a computer let alone a CV. A four day selection process is a bit ott to say the least.

They certainly can do better than they are but i think you might be over estimating the resources of small businesses in NZ.

In nine years of government Labour did not once push through under urgency one single piece of major legislation. The last stage of kiwisaver and the retrospective legilation for Harry Duynhoven are the only things that spring immediately to mind.

Once this legislation is in place it is only a matter of time before the horror stories start to emerge - you know, the human interest horror stories the media loves of vulnerable women forced into sex or of ruthless bastards exploiting desperate workers - and every one of them is going to be laid at the door of the national government.


Oh joy, the more I see of the NUM-Nuts in action the more I see a one term government.

the electoral finance act springs immediately to my mind

If they dopn't have the resources to do a proper selection process they don't have the resources to establish the position.

I'm not saying it needs to be a 4-day process, but a proper interview including skills demonstration is the way to go.

(fuck) i (yet again) agree with vadz

too many small businesses are concerned with growing quickly

I don't see a problem with it, the UK has it and I haven't heard a single horror story, and the UK economy is in a far worse state than the NZ one right now. I too many of you seem to have a capitalist pig attitutde towards employers that they are all inherently evil and want to fuck their workers over at every opportunity. In reality this isn't the case, when they take someone on they want to keep the person employed for as long as possible, provided they are capable of doing the job, all this means is that those who aren't capable can be replaced by someone who is.

I have stated twice in this thread alone that grievances for sexual harassment and discrimination can still be brought against the employer. So lets not start creating a misconception that National is more pro-employer than pro-human rights.


As I alluded to earlier, if the bill is principally aligned to the ERA (which is where the amendment will be introduced), then I don’t see why a 90 probationary period is out of line. The ERA was way to over-protective of workers’ rights.

Key has stated that provisions of good faith will be introduced into the bill. This means that employers will still need to honestly represent their employment intent, and probably their criteria for assessment during the probationary period.

It also means that the employee may very well now be required to prove that he can perform to the standards of the employer (not just be capable, but to be competent), that he can fit into the business culture and that there ‘no surprises’ about him. The ERA made it close to impossible to enforce performance related issues as a reason for dismissal. Sadly, in my opinion, the ERA’s over protectiveness in this aspect has thrown productivity out the door.

If the employer is being made to be so responsible for the employee, and if the employee is being accorded so many protections, should there not be an equitable responsibility for the employee to perform up to the employer’s standards?

There isn’t. Not under current legislation.


Lastly, please remember that not being able to bring a claim of UNJUSTIFIED DISMISSAL has NOTHING whatsoever to do with the employee bringing a claim against a breach of his employment agreement, even if it was a breach of the probationary terms. You must think of ‘unjustified dismissal’ in the context of the ERA and what it means. The bill only stops the employee from raising a personal grievance for unjustified dismissal and nothing else, from what I’ve read.

It’s not the end of the world. The Employment Contracts Act didn’t bring about the end of the world… only the unions. The ERA revived the unions. Employees are just ‘protected’, they’re now too sheltered.

OK I've been trying to find a copy of the proposed bill and haven't been successful, so I've quoted this from National's site:

1. 90-Day Trial Period





It is FAR FROM the fire-at-will bill that the media has reported it to be.

Not being able to bring a PG claim on a performance related issue is like saying that the employee can no longer use the excuse that the "employer didn't do all they could to coach me, train me, counsel me, teach me and give me enough time... to perform to the level that they require".

Meh.

you are right karhoo1 it isn't the end of the world

but as someone has already pointed out the small business sector are often the very businesses that don't strictly adhere to current legislation - most likely due to ignorance not as implied by many, intent.

Many employers could make a pigs ear of this due to a lack of skills and foresight on their behalf, with the possible putcome that employees are disadvantaged - this isn't about well resourced corporates with HR depts and a bunch of pop pyschologists who think they are super cool

One must wonder if an employee decides that the job isn't the one promised/advertised and thus decides to terminate within the 90 day period - how does this impact on their ability to claim unemployment benefit etc whilst seeking a new position (I imagine they are fucked)

BTW could you please use non gender biased language when talking about people (a super big bugbear of mine) - ie him/her not him

wouldnt it be easier if we stopped over-regulating and began to breed a value of a proper employment process

i love working for small businesses, and thus those are a vast majority of the positions i have ever applied for

but most times it is two half hour interviews (if that) then put out on the floor

most of these positions have not been as was stated in the job advert (a 'dynamic workplace' wtf?) and thus it is hard to live up to the job advert let alone the fact that the position is different from what had been advertised

this is especially relevant in new zealand small busineses. you are employed to do fill a particular role, then end up filling 5 different positions because the company attempts to grow too quickly/offer too much, then more employees have to be hired without an adequate interview/introduction period

(bias alert: this is all from experience of how things actually have worked for me)

also: please excuse my grammar =) its summer holidays!

over 20 years working in small businesses and not once has the job advertised nor the promises in an interview came close to the reality of the situation

you learn to never believe a word from your employer when it relates to your employment... note I enjoy and have enjoyed most of the roles I have had - it is however furstrating

I was the one who pointed that out.

And taking that into account is also the reason why I think that if the proposed Bill is principally aligned to the ERA, then I see no problems with it.

Think of it this way too, how many of such employers will now actually know about the new amendment if they can't be bothered understanding what "good faith" means for the past 8 years?





No it isn't. And this is exactly why I think the Bill is being targetted to small businesses in a sense.

Big HR departments understand that the ERA basically makes any probationary term redundant and difficult to enforce.

Big HR departments have the resources to run a rigorous selection and recruitment programme. They have the resources to provide company training and programmes to help 'underperforming' employees and in fact, may be the only ones able to meet the "exhausted all reasonably practicable steps by the employer to coach the new employee to perform to an acceptable standard" that is required by current legislation before an employer can dismiss the employee for performance reasons.

Big HR deparments also have legal expertise. They know (and are) getting around the 'probationary period' currently... one method is through the implementation of fixed term contracts for 3 months, whereby they will only renew your contract to a full agreement if they wish to hire you permanently.

So companies with big HR departments are arguably the ones who are coping better with the current legislation than smaller businesses, who can and will get screwed by the ERA over any of the above if they try to impose a probationary period and then, enforce it.





Why would they be?



I try my best to do this (if you haven't already noticed) but sometimes it's just easier not to have to be concerned about being so PC when you're trying to get to a point (that isn't about being PC).

While I agree with you there, I also think you're being a little pedantic.

If you quit your job, you are usually not eligible for unemployment benefits currently

Re: Pedantic, yes maybe - but I believe strongly that sexist language is not acceptable especially in the context of serious discussion (Call it PC or call it living in a world of equality....)

re: the gender thing

in academic philsophical papers i have noticed a tendency to use the gender of the opposite sex of the author
eg. men use 'she,' 'her' etc. and women the converse

Perhaps that will need looking into as well. As I've already mentioned, I feel that the practical realities of the bill needs to be considered with more depth. I don't see a problem with the principle of having a probationary period, but where an idea fails usually is in its execution.




I believe in equality, but I also think that making a judgement of gender discrimination based on the use (or non use) of the words "him or her" is pedantic, as you probably admitted.

I can say that from a personal perspective my posts and my views are gender neutral. However, that doesn't mean that I feel I have an obligation to address or project that view through the specific use of gender neutral language at all times. I don't think I'm being discriminatory in that sense, or based on that fact alone (simply by differentiating the use of 'him' or 'her').

In a more formal environment, yes, I will certainly be at pains to ensure that any view adheres strictly to the letter of non-discriminatory and PC use of language. But in this forum, probably not (no disrespect intended to the other posters as I value your views).

So if you're offended by this, then I apologise in advance. If you feel that you won't respond to any of my posts based on this, then that's your choice. But I'm not going to PC-check all of my posts for that sake, so apologies in advance.

There is no stand down on the benefit if you lose your job during the probationary period.

not offended at all to be honest - its simply that when confronted by written language like this (due to my acedemic days) its like being slapped in the face.

If my breif look online is correct then gprowl, you're right, but I still can't help butwonder how this will be administered - ie will there be a process where the person and former employer have to prove that the person left during the probation period due to false promises or whatever (ie they didn't just quit cause they wanted the dole but there is a solid reason)

Having reconsidered this situation, I don't see why the employee's position would have necessarily changed at all.

Currently, an employee is entitled to resign at any time as long as he gives due notice. I'm not sure what his entitlement to benefits are, but I also don't see why an employee who's resigned in the said "probationary period" should be treated any differently?

may reply when I have the time...

ps small businesses are 'often' held to a slightly different standard when it comes to compensation and other remedies.

b_d, you know I love ya, but this is OTT. in the context of formal writing, then yes gender neutrality is expected, but this is after all an informal discussion forum - i accept that there are serious issues being discussed here - but nevertheless the context is one of informality. i think posters should be forgiven for slightly relaxed standards of writing in light of this. having said that, if karhoo1 was the type of poster who used the male gender in writing with malicious intent, in order to (indirectly) assert male superiority, someone like vads then ok, call him up on it. but karhoo1 is not that kind of poster.

I don't indirect assert male superiority, I directly assert it.

As it is, "ungendered" language is inelegant and ugly.

I'd rather write properly and be politically incorrect.

I don't wantt o keep defending my OTT reaction but use of unbiased language means readers will concentrate on what you have to say rather than how you say it

as already stated this is a personal bugbear of mine, its not an attack on karhoo1 (or their points) as I value greatly karhoo1's contribution to these discussions

anyway back to the topic at hand...

lol @ bd having a yaksha moment.

stop shitting up the thread bob

www.nzherald.co.nz/politics/news/article.cfm?c_id=280&objectid=10547284

democracy in action

lol and if they didn't they would be slagged up for not meeting their commitments.

democracy isnt in danger here, well less so than under labour

personally I think it is pretty crap how parliament can rush through legislation like this.

why would they be slagged?

This piece of legislation as already pointed out was not part of the 100 days thang

not allowing for public submissions etc is arrogent and exclusive - neither of which I equate with the democratic process

Not sure why this bill is even needed.

Is there a specific reason why businesses (both small and large) shouldn't have to rely on a meaningful and thorough candidate selection process before hiring?

If business owners can't manage that then they probably shouldn't be in business.

I guess you could look at this with the other side in mind.. Employers, for years have been gun-shy about taking risks on employing people with poor references, work history or whatever - because workers have been in a position of relative power.

This surely goes against the natural flow of 'life' - where you keep good things biff the bad ones. This artificial protection for shit or just plain unreliable workers has basically been an extra anchor on small businesses and has not improved NZs productivity one bit.

This legislation might be a step too far but the old system simply caused truckloads of shit which was a waste of companies time for what gain? The only people who gained out of it were unreliable people and lawyers.

I guess your position on it will be determined by how much you love/despise employers and accpet/forgive mediocrity and incompetence.

and what's this about teachers being exempt?

fer chrissake haven't we been bombarded for years about bad teachers? why should we be concerned for their welfare now?

And in the meantime, those thick Horis in the Maori party think they still matter...

http://www.nzherald.co.nz/employment/news/article.cfm?c_id=11&objectid=10547356&pnum=0

Because it seems Anne Tolly has set some sort of new record for being caught out making a blatent lie before the election...

People seem to think that businesses need to be responsible for choosing a good worker... where the hell is the worker's responsibility to actually be any good?

To get work you can be rubbish at the job but exceptional at CV/cover letter writing and interview skills. A small business lacks a Human Resources section which tends to facilitate obtaining the optimal employee.

If a worker is any good, -they'll be retained-. The people who should be most worried by this bill are those who are rubbish at their job. Sure, there is the potential for abuse - but don't tell me that every union is benign with their power.

some of you have a very low opinion of NZ workers, if a worker is a fuckup that can often be a result of how the employer treats them.... not everyone is a lazy good for nothing piece of scum

if a small business lacks the skills to be able to correcly gauge whom the best candidate is for the job how the hell do you expect them to be able to gauge in 90 days if the employee has the skills, the attitude and fibre to be any good?

where is the onus on the employer to prove themselves to be capable to hire and retain staff

in our labour market the employee is the most vunerable andas such legislation should protect them (as has been the case) ratherthan put them in positions where they have little power over their employment

the govt is going to consider extending the legislation to all employers

Agree with bob.

Hiring on the basis of a CV and interview alone is clearly insufficient.

All employers should carry out thorough background checks before hiring... checking references, asking for a verifiable work / educational history, etc.

If a business can't manage basic HR, it shouldn't be in business.

thats a bit harsh - as we've seen so many very public embarassing stories over organisations (the govt for one) not doing background checks and the results being that employyees have defrauded the employer to land job that they then abused

these are the minority - just like dodgy employers are also the minority

however with this legislation those with often the least resources and skills to do comprehensive checks are being given a lot of power to terminate employment within the first 90 days - in a period where unemployment is tipped to rise significantly... undermining employees power in both bargaining and possible employment options

there is no reason to rush this legislation through and the justification that it has something to do with the economic crisis is laughable - considering national have mooted this proposition before (under brash) and that it won't even be enacted until April next year

in short - this whole process stinks

Fair points.

The key thing for all your arguments is the presumption that either the employer or employee will proactively abuse their positions, under the pre-amended ERA or the amended ERA.

If you just assume that the far majority of employer-employee relationship is non abusive, and that employer's will value competent employees, while competent employees will value a good employer, then there is no real problem.

On a legal perspective, the ERA did make it extremely difficult to dismiss an employee for performance reasons, and this difficulty increases disproportionately to the business' resources. This bill in my mind corrects that a little.

But yes, I would've thought that more consultation would've been required or done for this amendment. Not happy that it was "rushed through", as there was no real urgency to do it. I doubt that this bill alone has any subtantial impact on unemployment.

this I totally disagree with, having a background of working for smallbusinesses I have always found that as an employee (and anemployer) it takes 6-9 months before one has trained/ been trained (or more to the point learnt- as virtually no decent training is given) to the point where one can actually gauge if I or an employyee actually adds value or performs the needed tasks to benefit the business

its knee jerk reactionary 'business' orientated legislation to appease the backers - if the ERA is too employye positive amend the fucking legislation (though the correct processes) don't jusr bung in extra legislation to further compund and complicate things for the little people

While your points are valid, BD, it's not relevant to what I'm saying.

The fact is under the ERA, it is very difficult to dismiss an employee for performance purposes, regardless of the time frame.

Bigger organisations can do this better because they have the resources to ensure all "reasonably practicable methods" are used before they are forced to use an action of last resort, which is dismissal.

Small businesses simply do not have such resources. Regardless of how long it takes to train an employee, the fact that the employee cannot perform to a desired standard competently is different to an employee not being able to perform the job at all.

Simply put, large businesses have a better ability to dismiss incompetent employees. Small businesses do not, without the risk of a PG claim being brought against them.

A probationary period simply gives a small business a bit more leeway in doing this. 90 days may not be enough to ensure if an employee can add value, but it is enough to determine if an employee is competent. It may require a judgement call, but it is essential not so different from the judgement call that one makes at the time of employment.

If you 'change' the whole legislation, then it would be allow greater flexibility for an employer to dismiss an employee on a performance basis. This is very similar to the Employment Contracts Act, where each and every employee has a fixed term to his/her contract. You'd effectively be doing away with "permanent employment".

Whether or not that system is better or worse than the current regime will depend on who you ask. What is sure though, is that a contractual employment system (much like the USA's), is based one key tenet; that the bargaining power between employee's and employer's are equal.

The ERA's philosophy on the other hand is that there is an inherent inequality in bargaining power.

You can assess someones reliability and work ethic fairly well in 3 months. Of course people change and situations etc but at least it starts off on the right foot rather than having to give 3 warnings for failing to show up/ not calling.

In saying all of this I'm still utterly dissapointed that the amendment was rushed through under urgency.

As an editorial in the Herald Sunday pointed out, there was no clear or urgent need to do so, with the exception that it was possibly an unpopular bill that National wouldn't have been able to get through otherwise.

You guys are all moderators on public address yeah?

nah - unlike biggie mods you'd not want to sleep with the PA crowd

I agree that it shouldn't have been passed under urgency... but I agree with the principles of the bill... people talk about workers rights and seem to assume that employers have limitless pockets and aren't even people...

Signature of the year k thanks bye.