Don’t think I need to add much to this :-
Hon Trevor Mallard: Do the good-faith provisions override the employer’s rights to dismiss without giving a reason?
Hon KATE WILKINSON: The good-faith provisions have been preserved in the legislation. In particular, section 4(1A)(a) and (b) of the Employment Relations Act, regarding the duty of good faith, is retained for trial periods. Paragraph (b) “requires the parties to an employment relationship to be active and constructive in establishing and maintaining a productive employment relationship in which the parties are, among other things, responsive and communicative;”. That is protected in the trial provisions.
Hon David Parker: I raise a point of order, Mr Speaker. Mr Mallard’s question asked whether those good-faith provisions override the employer’s right to dismiss without giving a reason. It was a very straight question; it was a very narrow question. It has not been addressed.
Mr SPEAKER: The member has made an interesting point; I appreciate that absolutely. I may be wrong here, but I suspect that the member is asking the Minister to give a legal interpretation of the statute. Of course, Ministers are not in a position to do that. The Minister has, in answering the question, outlined what the statute says, and I am presuming it is then a matter of legal interpretation as to exactly what that statute permits and what it does not permit. That is why I believe that the Minister has reasonably answered the question.
Hon David Parker: Further to the point of order-
Mr SPEAKER: I will hear the honourable member again because it is an interesting issue.
Hon David Parker: In response to the original question that the Government asked of itself, the Minister said that good-faith provisions applied, implying that the employer did not have an unambiguous right to dismiss without giving a reason. My colleague Mr Mallard asked a specific question from a policy perspective; it is not a legal question. He asked whether the good-faith obligation that the Minister referred to overrides the employer’s right to dismiss without giving a reason. I submit that it is a very specific and appropriate policy question.
Mr SPEAKER: As the member should be aware, having been a Minister, the point is that if the law does not actually say that in those words, then it is a matter of interpretation. Ministers have to be careful not to seek to interpret what the statute says. That is why I feel it would be wrong of me to insist on the Minister’s giving a particular answer to that. She has cited what the statute says, and it is then up to interpretation as to whether it means something can or cannot happen.
Hon Trevor Mallard: Is it the Government’s policy, and was it the Minister’s intention as she introduced the 90-day legislation in 2008, for the good-faith provisions to override the employer’s rights to dismiss without giving a reason?
Hon KATE WILKINSON: When the 90-day trial was first introduced it was very specific. It retained the good-faith provisions contained in section 4(1A)(a) and (b), and it excluded paragraph (c), which relates to access to information and opportunities to comment, because of the time frames of that, which were some weeks, 60 days for some reasons, and which would actually be too prescriptive in relation to the process.
Hon David Parker: I raise a point of order, Mr Speaker. Mr Mallard asked whether the policy intention was that the good-faith provisions override the right to dismiss without notice. That is the point of contention here. The Minister has been asked this question on two occasions; it is a central issue concerning this legislation. It is now being applied to all other groups-
Mr SPEAKER: I think the member has made his point without needing to go on any further. On this occasion the Hon Trevor Mallard asked exactly what the Government’s intention was in respect of those issues. I do not believe that the Minister has on this occasion answered that question-the answer must be about what the Government intended. It is a relevant issue, and there is a genuine public interest in that issue. The question is not asking the Minister to interpret a statute; it is asking what the Government’s intention was when it introduced the statute. I invite the Minister, if it is possible and in the public interest, to answer that question.
Hon KATE WILKINSON: It is the Government’s intention that we have employment legislation and an employment regime that is flexible and is fair to both employers and employees. The idea of the 90-day trial was to give employers the confidence to take on new employees and to give employees the opportunity to get their foot in the door. And if, for any reason, the employment relationship was not working, the relationship could be terminated without the need to go through the prescriptive dismissal process under the legislation.
Hon David Parker: I raise a point of order, Mr Speaker. It would be perfectly permissible for the Minister to say “I don’t know.” But the Minister has not addressed-
Mr SPEAKER: The member is questioning whether the Minister has answered the question. What I might do is invite the Hon Trevor Mallard to repeat his question, because the question was commendably brief and to the point. I invite the Hon Trevor Mallard to repeat his question.
Hon Trevor Mallard: The first part will not be an exact repeat because it was not written-
Mr SPEAKER: In so far as the member is able.
Hon Trevor Mallard: Was it the Government’s intention, as it introduced the 2008 legislation, that the good-faith provisions override the employers’ rights to dismiss without giving a reason?
Hon KATE WILKINSON: The Government’s intention, when it introduced the 90-day trial, was that the duty of good faith did actually stay and was there for the protection of parties, in terms of paragraphs (a) and (b) of the legislation. They were specifically retained.
Hon Phil Goff: I seek the leave of the House to table an article from Lawlink, saying that under the trial period the employer does not have to tell the employee of the decision to terminate, that employees have no right to comment, and that they are not able to request the reasons for their dismissal.
Update: the Lawlink article is available here.
Surely the whole point is to give ultimate power to the employer without any need to explain the reason.
This gives any employer control which afterall must be the National Party’s aim in Government.
Like so much of the IR law changes, it is clear that they haven’t got their lines clear, let alone properly examined the policy area under question.
Another example is the suggested change to Authority Hearings. We are told that the right to cross-examine will be introduced. Well I was a witness in an Authority hearing 3-4 months ago and can attest to the fact that there is currently cross examination. I was put to the sword for two hours by a Simpson Grierson vampire.
Similarly the suggestion that the courts allow deviant workers off if there is a minor flaw in the process. It is in fact established jurisprudence that process alone does not determine an outcome, and case outcome after case outcome demonstrates this. The entire basis for the policy change is demonstrably false.
They pull off the great feat of being both mendacious and sloppy at the same time. Kate Wilknson’s performance defending this pile of crap is going to make Tolley look polished and knowledgable.
Was the leave granted?
Yes
The good faith provision, is crucial because it seems to embody principles of Natural Justice. If the good faith provision takes secondary standing, then this government has flagrantly, without consultation, removed a pillar of a functioning democratic society, the right to Natural Justice. This kind of major constitutional change ought not be done without mandate or consultation.
Well done Trevor etc for sticking to your guns. Now the problem is helping NZers understand how Natural Justice helps them. Most people assume they wont be in a 90 day position, or if they are they wont be the one who gets summarily told “it’s over”, so how to make it real to them?
Natural Justice is not about being “PC” it’s right alongside the Rule of Law.
Is it possible to see the Lawlink aticle?
Lawlink article on link