Doing something for the workers who most need it

Labour Minister Trevor Mallard announced today amendments to the ERA to provide “stronger protections for casual and temp workers.” This development was “negotiated” by NZ First’s Deputy Leader Peter Brown, Mallard stresses fulsomely.

A couple of years of research and report-writing found what we have long known: that knowledge of employment rights by the low paid is very low, as is the capacity to enforce those rights. Oh, and employment conditions are crap. Rates of unionisation are very low, for reasons beyond the control of the workers themselves.

What actually is proposed?

At present whether or not someone is employed as an employee (contract of service) or contract worker (contract for services) is up to the courts to decide. They use various tests to determine the nature of the contract where it is in dispute, such as capacity to make a profit or loss, and the amount of control exercised over the work.

It is proposed to allow Department of Labour inspectors to determine  which type of contract applies in individual cases.

This is quite revolutionary. DoL inspectors have been around since 1893, but it has always been the court that has decided these matters. I’m not sure how this would affect either temps or casuals, since both have contracts of service with their empoyers. But it would make it easier for dependent and some independent contractors rightly to claim more work rights. (See earlier post on Darien Fenton’s private member’s bill which deals with these people.)

It is also proposed to codify into the ERA the tests the courts use to determine whether casuals have become permanent by virtue of regularity of work and independence.

Other amendments to the ERA would make temps, who belong to a union, “entitled to terms and conditions at least as favourable as those enjoyed by unionised workers employed directly by the secondary employer under a collective agreement.”

In addition, a Code of Employment Practice for Casual and Non-Standard Employment will be developed, along with an awareness-raising campaign that aims to increase workers’ knowledge of their statutory rights in the workplace is also planned. Good ideas, but largely extensions to what the DoL already does.

Anything that affords these most vulnerable workers more protection at work is a wonderful thing. But the law has yet to be drafted, and while it is given a “level 4 priority” (i.e. is to be sent to select committee this year), the chances of it being passed before the election must be doubtful.

It is said that the proposed law incorporates Darien Fenton’s Private Member’s Bill. I’m not sure what shape Darien’s Bill is in, but it may be more expeditious for the government simply to adopt that.

Looking ahead, a change of government this year may mean that any changes rushed through in the coming months are undone. I’d rather see the groundwork laid for a tripartisan approach to employment law, just like in the old days. This would mean some give and take, but we might finish up with something that everyone can live with, and that isn’t going to be changed next time there’s a change of government.

[Note, “temps” are employed by someone else other than the person for whom they are directly performing the work. Office temps, for example, often fill gaps when someone’s sick or being replaced. “Casual” employees are essentially on-call (when there is the work, they get rostered on duty or called into work). In some industries, such as the fast food industry, workers might work every week for the same employer for years, but always as a “casual worker”. Makes it easy to sack a worker — you just don’t roster them on. Which alters the power balance in the employment relationship, you’d have to admit.]

Update: the Standard posts thoughtfully on the proposals.

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Tags: 2008 NZ election, Workers' rights