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Helen Kelly, CTU -
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PAUL Unions and the government are squaring off once more over a raft of changes to our labour laws. National says they'll make it easier for business to hire, unions say they strip away basic workers' rights. We'll debate the core issues. Welcome to you both Alasdair Thompson of the EMA and Helen Kelly of the CTU.
The unions Helen Kelly to perhaps the consternation of a great number of people are construing these measures as an attack on working people. How is it?
HELEN KELLY - CTU President
Well it's stripping them of the fundamental right to have fair dismissal for example, of things like access to the union.
PAUL Within 90 days it's different.
HELEN Within 90 days but even after that those changes around the substance over process the government's proposing will mean all workers can be subject to unfair dismissal. The whole point of having a fair process is that the employer gets to hear why something happened, what your reasoning for it is and to consider that the government's saying that's not necessary.
PAUL Yes what you're saying is under the current 90 day business the employer should liaise with the 90 day trialists...
HELEN Changes affect both workers within the first 90 days and post 90 days. Unfair dismissal is effectively being introduced across the board. And what we're saying Paul is all these changes as a package, basically paint workers as skivers, as lazy layabouts, all ready to rip you off at the first chance, and employers as reasonable people that won't misuse these powers.
PAUL Now hang on. Under the current system the worker and the boss have to agree to a probationary period right? Under the current system the worker and the boss agree to a probationary period.
HELEN Theoretically, but the boss offers you a job...
PAUL It's on paper, Helen, it is the law.
HELEN You turn it down you get your dole cut off and you have no other choice.
PAUL You take a punt Helen, you're trying to get into the workforce which is you know sort of the way life goes.
HELEN ....
PAUL Under the new laws however, the probationary period is for everyone. What benefit is that?
ALASDAIR THOMPSON - CEO Manufacturers & Employers Association
Well the first point is that it enables an employer to take a chance on somebody that they wouldn't normally even consider hiring probably, and I think you know there's about 50 people coming out of prison each week in Auckland alone.
HELEN They're all getting work, we've seen that.
PAUL No no no, Judith Collins told me in the green room actually the 90 day thing is proving to be very good for what she called 'my ex prisoners'.
HELEN The research shows that no new jobs are being created under this scheme when it's been rolled out in small businesses, and certainly that marginalised workers are over represented in the unemployment figures still. The government can produce nothing to suggest prisoners are getting work, young people are getting work.
PAUL No but in theory it should work Helen shouldn't it? I mean Alasdair might take a guy on who's had a bit of a hard life and he's done a bit of time in prison, you would be more inclined wouldn't you to take such a person on if the guy had 90 days.
ALASDAIR If you can give them a fair go and without repercussions, would be able to let them go if it doesn't work out.
PAUL As a responsible employer shouldn't you have to liaise with the fella?
ALASDAIR Yes absolutely.
PAUL Well they're getting rid of that.
ALASDAIR Well no I think that - we've got the time to actually talk about this to a Select Committee. I think even during the 90 days the employer should liaise with the person that's employed, and if they do not renew or continue their employment, to tell them why they didn't make the grade.
HELEN But they don't have to.
ALASDAIR The point is that they aren't going to face a personal grievance which on average costs $33,000 if you lose it, $10,000 if you don't lose it.
PAUL I'll come on to this, because government made some changes there. Let's just stay just a couple of minutes more with this 90 day business. You know I could ask you why is a boss going to get rid of someone who's good and showing themselves to have an aptitude, and if there's a 90 day probationary period, why shouldn't the boss who's paying your money, creating the jobs, creating them, find out if you've got an aptitude for the job?
HELEN Well the first thing is that we've seen cases of employers get rid of workers for all sorts of things which are not about their performance - workers that have asked to have a rest break, workers that have said they won't work 24/7 or come in at a minute's notice when the employer has rung them, workers that have challenged various practices in the workplace as being unsafe. We've seen them dismissed without cause. This law introduces unfair dismissal. Fair dismissal always there, you can always dismiss somebody even on the first day who did something wrong or wasn't satisfactory.
PAUL We're not talking Masters in History here, we're not talking LL.B Honours here are we, they're talking people who probably consider themselves very lucky to have a job, they might have left school at 15 and so forth, and bosses can ride rough shod over these people, in the hospitality industry, and the fast food industry and so forth.
ALASDAIR Look, no doubt there will be an employer who doesn't do things well in the process and so on. Helen's talking about two things, she's talking about 90 days and your ability without getting involved in a personal grievance to let that person go. The second thing she's talking about is process over the substance when you go to discipline a person who's been employed by you for a long time, when you get something in the process wrong and you get pinged for it. Where the person might have done an absolutely terrible thing, and anybody in their right mind would see they should have been dismissed. But the employer got the process wrong so the employer gets pinged. That shouldn't happen.
PAUL People probably don't know what you're talking about. I mean they understand you but this is part of the package, it's another part of the package. In any tribunal in any hearing, the 'substance' of the employment dispute or the employer's satisfaction becomes more important than the 'form' the employer took. Now we're talking small businesses where fellas don't have a Human Resources Department.
HELEN We're talking about big businesses as well. We are Paul and if you look at the papers today...
PAUL If the employer's incompetent, the employer might make a few mistakes in getting rid of the person what's wrong with that?
HELEN Well the substance, the substance, firstly lets the employee hear that there's a problem and allow them to perform better, correct themselves or whatever.
PAUL You concede that don't you?
ALASDAIR Yeah.
HELEN We don't communicate well in our workplaces, they've got no idea that the employer's got different expectations, but there's a story in the paper today about a woman that was dismissed in the States without the government listening to her story and she's now a big cause celebre because on explanation actually what they thought substantively was a very bad thing that she'd done was perfectly legitimate. And that's the problem. Process allows the substance to be tested an every other judicial ......
ALASDAIR Process is important. But substance is most important.
PAUL What is difficult about the process?
ALASDAIR It is a difficult process, it is a difficult process - well it is, but I'm not saying process isn't important, it is important. But if you've gone around - if you're building a home for a Jewish person and you go writing swastikas all over the walls and so on or something like that, and it's pretty obvious that that's a pretty bad thing to do.
PAUL Yes, on your bike.
ALASDAIR Yeah, on your bike. But you still should get the process pretty much right. But the point is if you don't get it 100% right you're still pinged.
PAUL You could be forced to rehire the incompetent bloke......
ALASDAIR Not only rehire, but you get pinged for $30,000.
PAUL Why is a bloke going to get rid of somebody who's showing themselves to have keenness and an aptitude for the job?
HELEN We see that Paul, because they join the union or because they challenge their pay rate, they want more pay, or because they ask for a rest break. We've seen these cases and you've gotta remember that employers are not people, they're corporations, they're the Fonterras, they're the big companies, they employ managers to maximise profit. They may get rid of people because their wages are too high and they want to get someone in at a lower rate of pay.
ALASDAIR What we're seeing is a very anti-employer attitude here, I mean .......
HELEN No, an anti-worker attitude. Workers shouldn't be trusted, they're skivers and employers are all good.
PAUL We must move on to the next thing. Another part of this is unions are going to be denied automatic access to the shop floor.
HELEN Workers are going to be denied access to unions.
PAUL Union officials are going to have to you know give a bit of notice and see that it's suitable to come on to the shop floor.
HELEN No, get agreement.
PAUL Get agreement, yeah.
ALASDAIR Which cannot be withheld.
PAUL Correct.
HELEN So let's talk about Fonterra. Fonterra fully unionised here, very good relationship, productivity work with the union, health and safety work with the union, two factories in Malaysia and Sri Lanka, deny access to the union cos it's not a legislative right. You cannot go and visit the workers of Fonterra in Malaysia or Sri Lanka if you're a union official because Fonterra don't want .....
ALASDAIR However you can here, and you still will be able to here.
HELEN I'm talking about our biggest company that operates in New Zealand.
PAUL Don't worry about Sri Lanka and... Worry about New Zealand.
HELEN I'm worried about the companies like we saw - we saw Warehouse, we saw Pak 'n Save all deny union access under the previous conditions.
ALASDAIR Oh well hang on.
HELEN When employers were able to use it as a gain to stop unions getting in to talk to workers.
PAUL Alright so that's going to be something to be discussed in Select Committee I'm sure.
HELEN It's illegal, it's against international law and it's a disgrace.
ALASDAIR In most countries in the world you have to get permission to go in, but permission cannot be withheld [unreasonably], so it's not against ..... yeah that's exactly right, I mean Helen is making a meal out of this, and I think it's partly because they haven't had any opportunity to do something like this for a long time.
PAUL What about taking a sickie, the great New Zealand sickie, if you take a day off the employer will have the right to ask you for a sick note. The employer however is discouraged from doing so because you do it once and the employer has to pay for you to go to the doctor to get the certificate. You ever thrown a sickie? Yes or no?
HELEN No I haven't actually thrown a sickie and I work with workers who have three jobs working at low wages with five kids and have five days a year sick leave, very precious every single one. And it's so insulting to suggest that they are taking a sickie, and it's also insulting to suggest they've gotta get their kid out of bed, take them to the doctor to get a medical certificate because their employer doesn't trust them. And not only will the employer have to pay, the state will have to pay because that visit to the doctor is subsidised by me....
PAUL What the government's essentially saying is the employer will be discouraged. The employer will be discouraged ...
HELEN No they won't, we get workers sacked all the time for taking sick leave. First 90 days, take a sick day, get dismissed.
PAUL Have you taken a sickie?
ALASDAIR Oh Paul I've taken a sick leave when I've been actually sick, but it was self-inflicted sickness.
PAUL You won't be asked for a sick note Alasdair?
ALASDAIR Oh no I won't, but neither will I be asking any of my staff for the first day they're sick for a doctor's certificate. And neither will most employers. You know what this is about? When you delve into the records of every business, every employer, you'll find the Friday and Monday are the main sick days by a country mile Paul.
HELEN Government can produce no evidence of that.
ALASDAIR Well I'll do a survey for you, and we'll get the facts for you, we know this is true, and the reality is if you've got a person who is always having Monday off, you know every second of third Monday off, a long weekend, and putting ....... yes of course we can ask for them now. I actually think this is for the one day thing though, it's the one day where - and the only time you're going to ask is where you've got this employee who is regularly taking a Monday off.
PAUL And as the Herald survey showed yesterday was it 98%, 89%, one of them, one day off for the Monday or Friday off was a hangover, and 53% take a sickie because they want to be with their partners anyway.
HELEN There's no evidence of that, the Department of Labour's got no evidence of that .... In New Zealand we've got one of the lowest rates of sick leave entitlement in the OECD......
ALASDAIR Well they haven't asked anybody that's why that's why they've got........
PAUL Let me ask you. You had a big demonstration last week, we see the faces of John Minto, we see Sue Bradford, and we see Mr McCarten who's here with us this morning, crashing into the National Party Conference, does that do the movement any good do you think for middle New Zealand?
HELEN Well you can ask Matt about that. Our rally finished at eleven under the tower and there was a second activity by some people later on and I wasn't involved in that, and our rally finished at eleven and you can ask Matt......
PAUL Last year you invited, the CTU invited John Key along to its conference, the National Prime Minister, and there seemed to be a kind of mutual respect. Has that mutual respect gone up in smoke now?
HELEN Yeah. I think what John Key said to the working people of New Zealand is I don't like you, I don't trust you, you're all out there ripping everybody off, you're not hard working people trying to make a crust, and all employers are my friends and I'm gonna look after them. And on that basis we can't have a friendship with him, and that disappoints me because I thought we could work on some stuff together. He gave me undertakings about some of the stuff, he's breached those undertakings and that makes it very difficult. I have written to him asked him how he sees the relationship going forward and I'm hoping that he'll respond to that letter.
PAUL And on that point we must leave it. Alasdair Thompson of the EMA and Helen Kelly of the CTU thank you.
