For much of 2024, centre stage has been taken by (a) the government’s relentless attacks on all forms of Māori empowerment and (b) by the wholesale embrace of mid-1980s style austerity policies, which even the most conservative economies in Europe abandoned a decade ago. Easy to miss that the government has also been tilting the balance of power in the workplace even further in favour of employers.
This week, for instance, saw Workplace Relations Minister Brooke Van Velden reduce the ability of workers to bring personal grievance proceedings against bad employers and thereby gain justice for their mis-treatment. The way Van Velden chose to paint the picture, good employers were routinely being forced into court by badly behaved, unproductive workers looking for an easy pay-out:
“We’re not setting, I think, the correct culture in New Zealand – where we’re rewarding poor employee behaviour and we’ve got workers looking on at that wondering why they’re doing the right thing if people are being paid out for doing the wrong thing…..”
“Where someone has contributed to the behaviour by for example continuously being late at work – and unproductive when they’ve been there – that there should be fewer remedies available for hurt and humiliation than there currently are.”
The personal grievance changes she has set in train include:
- No pay-outs for employees whose behaviour amounts to serious misconduct
- For a claim of hurt or humiliation, an employee whose behaviour contributed to the problem will no longer be eligible for reinstatement and compensation
- Where an employee contributed to the situation that led to the personal grievance, pay-outs can be reduced by up to 100 percent
- The Employment Relations Authority and Employment Court will be required to consider if the worker’s behaviour obstructed the employer’s ability to meet their obligations
- Increasing the threshold for procedural error in cases where the employer’s actions against the employee are considered fair
Note how these changes are all clustered on one side of the workplace ledger. All of them reduce the ability of workers to gain compensation or re-instatement. None of the changes penalise bad employers. Instead, they offer bad employers a “get out of jail free” card. When allegations are made against them, the changes virtually invite the employer to make counterclaims against the worker, in order to (a) avoid compensation or re-instatement altogether and/or to ( b) get the allegation thrown out of court.
It isn’t hard to imagine that thanks to these changes, it will be the worker who will be on trial in future proceedings. To get their case on the rails, they will first have to prove they didn’t invite say, sexual harassment by their employer – rather than a more balanced focus being on whether and how such harassment took place, and how fair compensation for it should be assessed.
Consider a theoretical example: let’s assume a truck driver came under pressure from their employer and falsified their time sheets in order to work longer shifts than legally allowed. When caught out, the truck driver is fired. Rather than be able to argue in court that they were pressured into the situation and therefore entitled to compensation and/or even to reinstatement, they will now be unable to bring the proceedings at all.
Previously, employment law had recognised – in a key case in 2016 – that compensation could indeed be reduced if the worker’s behaviour had contributed to the situation. Yet the Employment Court had been at pains not to exempt employers from their share of responsibility in relevant cases. It therefore set the reduction threshold at 50% of the compensation otherwise due.
Now however, ACT is enabling the denial of any access to personal grievance proceedings – and to any compensation – if the worker’s behaviour contributed in any way at all to the dispute. In the case of the timesheet scenario cited above, 100% of the consequences could be borne by the truck driver, and none by the employer. Bad employers are either being rendered immune, and/or will be even more motivated to smear the worker who has brought the complaint.
In addition, Van Velden announced that workers earning over $180,000 annually will lose their access to personal grievance procedures. Meaning : if high earners are sexually harassed or bullied into constructive dismissal, or fired…this government is saying in effect, tough luck. And that they should be able to afford to tide themselves over, into another job. Again, the employer is being protected from the consequences or costs they might otherwise have expected to face under the current personal grievance provisions.
As CTU Acting President Rachel Macintosh says: “Making the personal grievance regime even tougher for workers will empower bad employers to think they can get away with mis-treating their employees…The personal grievance process is already a tough regime for workers and under the current law, many workers lose their cases, and many workers have their remedies reduced, sometimes by significant amounts…” Now, many more will face losing access to the process entirely.
As Macintosh cogently concludes: “The Prime Minister and his Cabinet continue to demonstrate that they are governing only for employers, and couldn’t care less about the people who get up every day and go to work to keep this country running.”
Working for the man
Macintosh is dead right on that last point. As the political wing of Boardroom New Zealand, the coalition government is governing only on behalf of their business donors, and against their employees.
Unfortunately, 2024 has offered plenty of evidence for that claim . The 90 day employment “fire at will” trial has been re-instated, and extended from firms employing under 20 workers to all employers. The Fair Pay Agreements that would have enabled workers to better organise and bargain for improved wages and conditions have been scrapped. Increases to the minimum wage have been kept token, below the cost of living.
In the wake of pressure from employers and landlords, working from home is being scrapped, despite the PSA survey research that public servants working from home are more productive. Also : regardless of their actual terms of work, employees who are hired as “contractors” will no longer be able to go to court to prove they are actually working as employees, and should therefore be eligible for sick leave, holiday pay and other normal workplace entitlements.
However, if workers signed a contract that stipulated they are contractors then that – to the coalition government – will now be the end of the matter. With a nod and wink, employers are being incentivised to make workers sign that piece of paper as a condition of getting hired in the first place.
After that, almost anything goes and no legal redress will be available. Yes, workers in the gig economy will have the “ freedom” of being contractors, but – increasingly for such workers – freedom’s just another word for nothing left to lose.
Footnote One In a similar vein, the government is axing any Marsden Fund support for research in the arts and humanities. Only the “hard science” research that’s able to be monetised by the business sector will henceforth qualify for taxpayer support. Taxpayers of course, already pay directly- or indirectly, via taxation – for the research and development costs that businesses should be paying for themselves.
Footnote Two: The coalition government is enabling New Zealand workers to be treated badly, while it is throwing foreign workers to the wolves. News emerged this week that exploited workers from the Philippines are being threatened with being killed – and/or with their families at home harmed – if they speak out publicly about their exploitation in this country.
As Gill Bonnet, RNZ’s brilliant investigative journalist on immigration issues has just reported , of 112 investigations which had people trafficking implications, none have resulted in prosecutions, and less than half are still under investigation.
Of the 59 closed cases, Bonnet reports, 106 actions had been taken. These actions included sending out 12 education packs and two formal warning letters to the employers suspected of trafficking. In only four cases out of 106, accreditation was either suspended or revoked.
Otherwise, Immigration NZ has simply punted the problem back to the partnering recruiting agencies overseas. The ‘wet bus ticket’ treatment being given to them – and to their rogue business partners in New Zealand – gives them no reason to change the behaviours that are proving so lucrative for them.
Seemingly, the New Zealand government couldn’t care less. The multiple stories of exploitation of poor Third World workers lured here under false pretences and left stranded, just isn’t a Beehive priority:
Brooke van Velden said the government’s priorities in her workplace relations portfolio were to improve the Holidays Act, reform health and safety law, increase certainty in contracting relationships, simplify the personal grievance process, and set performance measures and targets in regulatory systems.
“The future of the policy work programme on modern slavery supply chain legislation remains under consideration,” she said, in a written statement. “However, new legislation is not required for businesses to undertake responsible supply chain practices, and many do so already.”
Not a priority. The local firms that are part of the foreign labour force supply chain can be relied on to act responsibly. Because hey, not all local employers are engaging in people trafficking and practising forms of modern slavery so…nothing to see here, move on.