Thursday, March 16, 2006

Misplaced confidence

Wayne Mapp's Employment Relations (Probationary Employment) Amendment Bill has passed its first reading after three Maori Party MPs voted for it. I'm appalled. This bill is an attack on the vulnerable; it will allow employers to fire workers for any reason whatsoever (or no reason at all) within 90 days of hiring them, with no recourse under existing dispute resolution procedures. It would allow people to be fired for joining a union or even talking to one. It would prevent workers from suing for arrears if they are not paid. And given that WINZ imposes a 13-week standdown on anyone fired, it will mean workers are effectively left with no rights whatsoever for the first part of their employment; it will be accept whatever is offered (and live in fear of having it arbitrarily withdrawn if your Masteremployer takes a dislike to you or is in a bad mood) or face starvation and homelessness.

This is law for the rich, and its victims will be those on the bottom of the heap - a group which includes a lot of Maori. I cannot understand why then why the Maori Party, who claim to represent Maori interests, would vote for it.

Last month the Maori Party's support for Sue Bradford's Minimum Wage (Abolition of Age Discrimination) Amendment Bill gave me some confidence that the Maori Party could be relied upon to support basic left-wing causes like employment rights for the weakest and most vulnerable. Unfortunately, it seems that that confidence was misplaced.


Three members of the Maaori Party voted for it because they know of a lot of young Maaori who are unable to obtain work because employers know how difficult it is to let someone go who really just isn't up for the job, even though you wanted to give them a chance. They think that it may be better for these Maaori to accept whatever is offered (especially with the higher minimum wage they support), than not be offered anything at all.

Or maybe they see as many problems as you do, but want to see if the select committee is able to fix them (like changing the WINZ rule for example, or limiting the effect to personal grievances for unjustified dismissal). If it fails to, perhaps they and NZF will ulitmately vote against passage of the bill.

Posted by Graeme Edgeler : 3/16/2006 09:40:00 AM

I think its a great idea. The ability to trial people gives you the chance to try somebody who was only marginal in the interview but who you think might possible prove them selves in the real job.

previously I would have turned those people away as to much of a risk.

I dont thing you will really find people hiring large numbers of people and then firing them at 89 days, sucessful businesses do not work that way.

Posted by Anonymous : 3/16/2006 09:49:00 AM

So graeme and sb, you think that workers who are treated like dirt shouldnt be able to put in a personal greivance.

Job Security is a right, this bill would take that right away from them, I dont see how taking workers rights away from them will help them.

Posted by Anonymous : 3/16/2006 10:00:00 AM

This one's not clear-cut.

Employees need protections of their rights. I agree with that.

But it's not unreasonable for employers to want the ability to judge if employees are going to work out okay before committing to offering them a job for life.

I work in IT. There's a vast (truly vast) difference between a good programmer, an average programmer, and a bad programmer. I've had programmers removed from a team I was leading and sent onto other work because we got more work done without them. It's very hard to tell from a CV and a few references how good someone really is. If you don't know, and it's really expensive to get it wrong, then pushes employers to use the old-boys network, which has its own obvious biases and problems.

Especially if you're a small employer with only two or three employees, having an employee who's just not very good at their job can really cripple your business.

Let's take one of the cases this is dealing with: the shop-owner in Wellington who had a job applicant he wasn't sure would work out. So he said "come by and work a day next week, we'll see how you go and then decide." And then he got done for wrongful dismissal when he decided that the potential employee wasn't going to work out.

I'm not saying this bill is the right answer. But there's a real problem here that this bill is trying to solve.

If you've got a better solution, then let's see it.

Posted by Icehawk : 3/16/2006 10:20:00 AM

graeme - It's a persistent myth that it's "difficult to let someone go who isn't up to the job". When a NZ employer hires someone they are legally able to require that the new employee performs their duties as agreed, to stated acceptable standards. The ERA simply demands that, should they fall short of those standards, they are given reasonable opportunity to improve before being disciplined or dismissed.

sb - Employers are already able to "trial" people, they just have to make the terms of such a trial transparent and act in good faith.

If the Maori Party continue to act like this, they'll be punished at the ballot box and those Maori who hedged their bets by giving their party vote to Labour will be vindicated.

Posted by Jarvis Pink : 3/16/2006 10:27:00 AM

millsy: Its only the first 90 days, if you are going to be treated badly by your new employer then its better for you to get out and try somewhere else.

Jarvis pink: I know about the trial period - I had one in my contract and the contracts I hire people for my company with also have 90 day trials in them. But its not enough.

I have turned away several people who if I had the 90 day option I would have given a go.

You people seem to be ignoring the positive of this - if gives you 90 days to prove to your new employer that you can do the job - if you cant prove it in 90 days then get another one.

Posted by Anonymous : 3/16/2006 10:52:00 AM

"to stated acceptable standards. "

There's a major problem that setting measurable standards, sufficient to stand up in an employment court, is really hard.

Remember that we've seen teacher's unions, etc, very upset at attempts to base their pay on quantified standards. They have (reasonably) argued that in many jobs quantifying what it means to be good at the job it is really, really hard.

Back to the computer programming example that I understand: employees need to be good at it. That's not a measurable in lines of code, in bugs found, or in any other simple metric (if you really want I can point you to the studies about why such metrics are bad). But I know it when I see it.

As for a 90 day trial being legal now - I know many contracts contain such verbage. I really doubt that's enforceable. Remember that if your contract says that the job is only for 1 year and will not be renewed you can still successfully sue for wrongful dismissal if they let you go at the end of that 1 year and hire a replacement (as Auckland Uni found when they tried the trick - common in the USA - of trying to hire cheap young lecturers with no experience and let them go after 2 years so that they could be replaced with cheap young lecturers with no experience).

Anyone got links to data on the legality of such trial periods now?

Posted by Icehawk : 3/16/2006 11:22:00 AM

What about job security - its a bit hard to be confident about doing a job when you know that after 90 days you are going to get the chop. This is just protection for bad employers really.....

I wouldnt take a job if it had a 90 day trial period, I want employment security.

Posted by Anonymous : 3/16/2006 12:17:00 PM

And also, why shouldnt workers be able to take a personal greivance against their boss? Surely crimes like sexual harrassment and intimidation should be punished, there are a lot of bad employers out there, they shouldnt be allowed to get away with what they are doing.

Posted by Anonymous : 3/16/2006 12:21:00 PM

That's fine Millsy. That's up to you. I however would be prepared to let an employer judge me on my work ability. Perhaps Millsy, you are afraid you might have an another of your angry irrational outbursts and don't want to be fired.

Posted by Anonymous : 3/16/2006 12:22:00 PM

You can call something a 'trial period' but the person still has all the rights offered under the employment relations act.

So the employer still has to follow due process, and can't fire people for no reason (what a hardship).

Posted by Maia : 3/16/2006 12:25:00 PM

Millsy is under the false impression that he has a 'right to a job".Sorry comrade but it just ain't so.

He certainly can seek work but no one is under any obligation to employ him.Its called the Right to Liberty...which entails the right to discriminate for any reason one likes despite what the law says.

Posted by Anonymous : 3/16/2006 12:33:00 PM

Maia: and its precisely those rights of due process employers are trying to escape from. And the only reason to do that is so they can treat people unfairly.

This bill is nothing but a blatant license for abuse. Most employers won't act like that, of course, but they're not really the target of employment regulation anyway. Like laws against murder, employment regulations are aimed at those who do want to abuse and be grossly exploitative - and thanks to the Maori Party, those people are one step closer to having a free hand to do precisely as they please.

Posted by Idiot/Savant : 3/16/2006 12:36:00 PM

James: in this country, you emphatically do not have "the right to discriminate for any reason one likes". And its a damn good thing too!

Licensing private discrimination makes liberty completely meaningless for the vast majority of people, who will be subject to the arbitrary whim of the powerful. And if you think that freedom should be enjoyed by all, then that is abhorrent.

Posted by Idiot/Savant : 3/16/2006 12:39:00 PM


"Employers and employees may agree to an initial probationary or trial period. This must be recorded in writing in the employment agreement. Failure to record the probationary arrangement in writing means that the probationary period will be unenforceable if the employee chooses to contest it. If the employer thinks there are problems, the employer still needs to follow a fair disciplinary or dismissal procedure. The employer cannot merely tell the employee to go at the end of the trial period.

Sometimes an employer may ask job applicants to demonstrate their skills prior to making a decision on whether to employ them. Such arrangements may be permissible where the duration and tasks are limited and designed to give the employer a fair opportunity to assess the skills. Employers may not use such an arrangement to get work done without having to pay for it."

Read consolidated version of ERA at:

icehawk - if you aren't able to objectively set measures of competency, how on earth do you do your performance management.

I spend much of my working life talking with employers. When they complain of not being able to fire people or negotiate trial periods I refer them to whatever employers' organisation they belong to for advice. They are usually ill-informed about their rights and responsibility as employers.

A major gripe for many of them currently is retention and what they experience as a lack of loyalty from their staff: "We're selling hundreds, I just can't get people to turn up and install them."

Supporting legislation like this is not going to inspire "loyalty" in the workforce. If my boss can fire me on a whim, why shouldn't I stay home from work on a whim?

Posted by Jarvis Pink : 3/16/2006 01:04:00 PM

I work in IT as well. When you hire someone, it's the employers responsibility to do proper due diligence and assess the employees ability to do the job - this is feasable in IT (and in most other businesses I suspect). It requires more work than just assuming someone can do a job from their CV and firing them when they can't.

To my mind it's wrong to hire someone into a job you aren't sure they can do - they'll either have to be fired, or be out of their depth and so miserable they leave anyway.

There is absolutely nothing, BTW, that stops an employer from hiring someone for a limited time to work on a project and then offering them a permanent job if they turn out to be any good.

Posted by Rich : 3/16/2006 04:09:00 PM

And performance in IT *is* measurable against numerous criteria: time taken to perform tasks, rework required, billable hours, customer satisfaction, qualifications gained - all spring to mind. Of course, this requires a properly organised shop, rather than the old-fashioned "programming is a craft" attitude.

Posted by Rich : 3/16/2006 04:16:00 PM


Good references! Ta. Quality commenting, old chap.

But what that seems to be saying is that you can have something called a probationary period, the new employee isn't really on probation for that period. That is, it seems to say that the employer doesn't have any rights to say "no this isn't working out, we're not going to keep you on" above and beyond the rights they usually have to dismiss or discipline someone.

"icehawk - if you aren't able to objectively set measures of competency, how on earth do you do your performance management."

You're kidding, right?

Software development isn't a science - it's an art. The best you can do is apply your views as an art critic and ask the other artists that someone is collaborating with.

I'd really hate to have to fire a programmer who wasn't performing, because generating measures that would stand up in an employment court would be (a) very hard and (b) bloody stressful for every member of the team.

"Objective" measures of are famously difficult for many jobs. The results of attempting them can be Kafkaesque (down to the KGB system of having a quota of traitors to find). Which is why you have some unions that are strongly opposed to the use of such performance measures to set their pay scales: I'll drag out (again!) the example of the teacher's union because it's a big, topical one.

My big problem with this bill is that it makes switching jobs a difficult exercise - imagine getting a new job in Wellington, quitting your old job, moving the family down to Wellington from Auckland, selling the house, then being told "nope, we're not keeping you".

I still think the ability to mutually opt into a real probationary period is worthwhile. Jarvis claims we already have one (I think not, but he may convince me I'm misreading things) and whether this bill provides one (it seems overly slanted in the employers favour).

Posted by Icehawk : 3/16/2006 05:03:00 PM

icehawk - I'm not sure I can add anything to what I've already posted that would convince you that probationary periods are both legal and workable. Like I said to sb, its a matter of transparency of terms and acting in good faith.

I notice that Rich disagrees with you about the feasability of setting measurable standards for programmers' performance. As a non-geek I'm not qualified to judge, although I'd be surprised if you didn't have consistent performance criteria which could be revealed by analysis of your decision making patterns on QA issues.

I'd be interested to read those studies you mention.

Posted by Jarvis Pink : 3/17/2006 10:12:00 AM

Icehawk said, way up this thread:
"Remember that we've seen teacher's unions, etc, very upset at attempts to base their pay on quantified standards. They have (reasonably) argued that in many jobs quantifying what it means to be good at the job it is really, really hard."

Yes teachers have resisted performance based PAY. However they have not resisted competency standards in regard to suitability for particular jobs, and indeed for registration as a teacher.

What we are talking about in relation to this stupid legislation is about being appointed and keeping your job, not how you are paid, so your point falls down.

Teachers can be fired from a school, or even deregistered (in which case they can no longer teach) based on conduct or competency (or both). The process to do this is reasonably simple, although it can take some time, but the reason it usually fails is because the SCHOOL has stuffed it up. In most cases I have heard of where a worker whose competency may be legitimately questioned doesn't get fired, it is because THE BOSS doesn't act fairly or properly. Who's fault is that? Why do we need to change the law to encourage bosses to disrespect fair process even more? Plus encourage them to have crap appointment processes, rather than making sure they have a clear job description and criteria for the employee before they start interviewing.

Posted by Span : 3/19/2006 12:03:00 PM