From time to time Phillip and Elspeth will post opinion and articles  here. While   these are expected to  be largely about workplace issues, Elspeth may not be able to resist delving into  some other questions   she  feels  need  greater  media coverage.

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This opinion piece from Phillip was published in the Hawkes Bay Times in July 2015 Opposition grows to health and safety reform “monster”, says employment relations specialist Phillip de Wattignar

Wednesday September 9th, 2015

The concerns of the Hawkes Bay farming community regarding health and safety regulation are widespread. They are not confined to Hawkes Bay and not just to the farming sector.
Government MPs have objected to the ill-fated Health and Safety Reform Bill and its report back has been delayed. The bill was introduced in May 2014 and claimed to be part of the response to the Pike River tragedy.
The delay in reporting back the bill is a case of National party MPs both doing their own job and also taking on the extra duty of the opposition in objecting. They are rightly finding fault with and opposing bad and unnecessary legislation. Theirs is a sensible response to a ridiculous proposition.

The reform bill is a monster. The NZCTU, the parliamentary opposition and public service advisors have all got it wrong.

The forgotten story is that Parliament has already acted promptly on the recommendations of the Pike River Royal Commission on the Pike River Mine Tragedy. The Health and Safety (Pike River Implementation) legislation included the Worksafe New Zealand Act 2013.
This met the main concerns of the Royal Commission into the Pike River tragedy and the recommendations of the later taskforce. They had both identified the failure of the former regulator, the Department of Labour, to adequately resource Health and Safety inspectors to enforce health and safety standards. An independent Worksafe NZ is now in place and on the job to put safety workplace health and safety first. Mission accomplished.

The Prime Minister is correct to note this second Health and Safety Reform Bill is ill suited for the 95% of businesses which are small to medium sized. These businesses don’t have human resource managers and don’t run everything past employment lawyers. Almost all employ staff who are unrepresented and are employed under individual terms of employment.
Wise commentators are remarking on the significant influence and degree to which the direction of the bill has been captured. It appears to be championed by self-interested human resource and health and safety managers found inside larger private sector corporates and public sector organisations who have a vested interest in compliance roles (jobs).

Comparisons with Australia are the rhetoric of the day. Recommendations to follow the Australian model legislation were never valid nor going to be workable or effective. New Zealand has entirely different circumstances especially regarding incentives to comply.
With our comprehensive ACC system there is no significant risk of financial penalty for workplace accidents because workers do not have the right to sue.
New Zealand does not have the sort of industry coverage of union representation and union resources found in Australia to ensure widespread monitoring and compliance of complicated and prescriptive workplace health and safety regulations. Unionism in the private sector small and medium business sector in New Zealand is all but extinct.

The bill is the product of the Ministry of Business, Innovation and Employment (MBIE), the successor to the Department of Labour. “Yes Minister”, with Sir Humphrey wielding the power is back. The policy development and advice to the original Taskforce and to Government was and is of very poor quality. The large number of submissions to the parliamentary select committee reflect this. A significant number of submissions are more concerned with politics and power in the workplace issues raised by the bill than about health and safety in the workplace.

There is simply no reason why Worksafe NZ can’t be supported and resourced under existing legislation to do the job. Worksafe can educate and support businesses and staff to comply. A confidential help service is sufficient. There will never be enough Worksafe Inspectors so employers will have to be trusted to get it right. Managers already have the tools of performance management and disciplinary process to back up and enforce compliance with properly established health and safety policies.
Industry specific Codes of Practice and appropriate Government regulations can be produced in consultation with the business owners. These can be implemented through engagement with Worksafe NZ to complete decent health and safety reform in a more meaningful and genuine manner.

This opinion piece appeared in the Otago Daily Times on April 10 2015 and drew favourable mention in political commentator Bryce Edwards’ column in the New Zealand Herald

Wednesday September 9th, 2015

It has been suggested (ODT 15/3/15) that zero-hour contracts are a necessary tool.

For many managers and business owners in the retail and service sectors, competitive pressures may make them essential. It’s a race to the bottom.

Employees on zero-hour contracts agree to work as required with no say or guarantee about hours of work. In effect they start a job agreeing not to have any consultation about when they will work or any entitlement to set days or hours of work.

The controversy over this is between the usual suspects: political and academic interventionists crying for more restrictive employment legislation, and business interests running cynical arguments about freedom of contract.

Both camps miss the point. The real issue is about power and control in the workplace. What is refreshing for some employers, and despicable to objectors, is that zero-hour contracts enable management to deal promptly with any risk of dissent or challenge to management decision making.

Zero-hour contracts are the ideal tool for disciplining and culling the workplace of the unpopular, the poor performer and disposing of unwanted employee expression.
They dispense with the cost and need to engage human resource or legal assistance with time-consuming work performance and disciplinary processes. There is no need to bother with trial periods and there is little risk of personal grievance cases.

Take the real example of several retail chains that run a seven-day operation trading 54 to 60 hours per week. They have one permanent manager in each store and require a minimum of one or two employees on duty at any time.

Zero-hour contracts enable each store manager to employ and roster staff at will. There is no need for the manager to be able to follow complex employment laws or to train staff to improve.

Quite simply, if any employee acts in way that is perceived as difficult or insufficiently submissive, they are no longer offered a place on the roster for work. The employee has no right to challenge as their zero-hour contract contains no consultation rights for rosters or set hours of work entitlements.

This sets an example to others. Employees who work without asking for meal and rest breaks and who do not raise issues about working conditions, or question management decisions are preferred and get the work.

Zero-hour contracts are part of a pushback. They are the unintended consequence of the folly over the past 15 years of governments presuming to set conditions of work through amending employment legislation.

Now that zero-hour contracts are discussed and criticised, legal apologists feebly recite the option for job applicants to take the zero-hour contracts away and get advice. (Employment lawyers may charge $250 to $350 per hour.)

There would be little point in seeking such advice as these job applicants are in no position to bargain about notice of roster or hours of work. It is a case of take it or leave it. There is little or no risk for the employer.

The cry by opponents for piecemeal amendments to make employment legislation more restrictive is no solution. Informed and sensible change to conditions of work can only happen at the workplace.

The source of the problem is the restriction of bargaining options at the workplace under the Employment Relations Act 2000. It denies employees and management the freedom to bargain together in the majority of New Zealand workplaces.

Collective bargaining remains limited to an increasingly irrelevant and marginalised union monopoly thanks to 15 years of collusion by the Labour and Green parties. To its shame, the National Party reneged on its 2008 policy to reintroduce enterprise bargaining rights for each workplace.

The current system is a geriatric makeover of the old 1980’s “industrial relations club”. A restricted right to collective bargaining is carefully sidelined and maintained by government to keep control of economic policy and to manage the cost of its public sector workforce which remains the most unionised sector.

So the deliberate exclusion of 80 percent of the workforce from the collective bargaining system enables private sector employers to engage employees in the same workplace on quite different terms from each other under separate individual employment agreements.

Some of these employees will be selected for zero-hour contracts as second tier employees with no job security.

Since the present system deprives these employees of the ability to respond and negotiate together at work, it is to be expected that the use of zero-hours contracts will become widespread and an increasing number of private sector employees will become part of this growing second tier.

Instead of asking departmental officials to look into the situation, the Minister for Workplace Relations and Safety Michael Woodhouse should be directing this policy matter to the Government caucus room.

If you want to see what Bryce said - here is the link:

This is Phillip’s three-part series on workplace bullying which featured in the Star in May, June and July – if you forgot to cut them out of the paper, here they all are for easy reference.

Friday July 11th, 2014

1. Workplace bullying- whose risk?

Workplace bullying is a term you have probably heard of, but you may be unclear about.

A good place to start is with the Worksafe New Zealand guide “Bullying – preventing and responding to workplace bullying’’. It is free from the Worksafe NZ website.

It provides questionnaires for employees and employers to identify whether or not there is bullying and information about what to do.

The guide makes it clear employers must develop a process for managing workplace bullying and to involve staff in this.

The Health and Safety in Employment Act 1992 requires employers to ensure their employees are not exposed to various hazards, including physical and psychological harm.

This includes protecting staff from another person’s behaviour in the workplace that might cause harm. Employers need to check for and know about such hazards and their potential for harm.

The guide makes it plain employers should have a policy for identifying and dealing with workplace bullying.

It also outlines the consequences for employers of not dealing with complaints of workplace bullying.
Employers who fail to act are open to a range of actions under the Employment Relations Act 2000. These include penalty for breach (fine), personal grievance for unjustifiable action causing disadvantage and personal grievance for unjustified dismissal including where resignation has resulted from an employer’s failure to act.

So whose job is it to act? An employee needs to follow their employer’s complaint procedure without fear of repercussion. This should be done in writing. All meetings held with management regarding the complaint should always be attended by a support person for the complainant.

Employers must keep an open mind and resist the urge to write off the complaint of workplace bullying as a personality problem. This the wrong approach because:
i) There is a real risk for employers who fail to act and investigate complaints in the workplace when there is conflict. This will cost them dearly when they are sued later.
iii) It always aggravates the harm to victimised employees to be blamed for a personality problem. This will increase the cost to the employer when sued later.
ii) All behaviour ought to be judged in as to whether it is acceptable or unacceptable and not according to who is involved.

2. There is a right way and a wrong way to investigate bullying complaints at work.

If you need to know more about what constitutes bullying, a good place to start is with the Worksafe New Zealand guide “Bullying – preventing and responding to Workplace bullying” which I referred to last month.

Workplace bullying involves the actions of individuals that target another individual. This means a person being victimised is immediately caught in a ‘’he said’’, ‘’she said’’ type of argument.

For an employer, the investigation process must be conducted with an open mind and it must also be fair and reasonable for both the alleged victim and the alleged perpetrator(s). This is because the complaint of bullying must be put to the alleged perpetrator for their explanation.

It may be that a disciplinary process might follow, so the employer needs to be careful how he or she proceeds as there is the risk of not just one, but two unhappy employees taking personal grievances if the investigation process is flawed.

The investigation process may not always require the assistance of outsider, but in some cases it may.

In all cases of alleged workplace bullying there is a need for employers to seek expert employment relations advice and ensure that, if necessary, they are able to engage a competent person to conduct a workplace investigation.

The knowledge and experience of employment relations practice and procedure is an essential requirement for a workplace investigator, because the process is quite different from, and much more complicated, than other investigation processes. Assumptions of innocence and guilt are inappropriate.

There may be different perceptions of what constitutes unacceptable behaviour. (This was also found to be the case in the 1980s when employment legislation first included sexual harassment as grounds for personal grievance.)

The workplace investigation process is highly specialised. Quite a few workplace investigations are bungled or biased. There can be a conflict of interest for managers involved in the investigation who are subjects of the complaint.

Sometimes the investigator appears to conduct the investigation to elicit pre-determined answers. In these cases there has been no commitment to or demonstration of being impartial or objective. Often these shortcomings arise as a result of a hasty or poorly thought through investigator selection process. As a result the wrong person is selected to conduct the investigation.

3. Unacceptable behaviour towards others at work – bullying and disharmony

Employers often do not know how to deal with bullies working for them and that is the area I will explore in this third column on workplace bullying.

Employers should investigate and apply their code of conduct to their findings regarding complaints of bullying behaviour. This then allows the employer to test whether there has been a breach of their code such as serious misconduct.

The employer can then decide whether to follow a disciplinary process. Before doing so, the employer should consider the views of the employee who is the subject of the complaint and if there is a case for other options. One alternative is to place the employee on a work performance plan which, with appropriate training and counselling, can be monitored to achieve change. This can only work if the employee concerned has a genuine willingness to cooperate and take responsibility for their actions.

Employee attitude is always an important factor for employers to consider in all workplace complaints, not just those involving workplace bullying. This is because the Employment Court allows that the employer should be able to take into account whether an employee shows insight and contrition when the employer is considering the actions or behaviour of an employee who is the subject of a complaint. So, whether that employee takes early and genuine responsibility for their actions is always very important to the final outcome.

Sometimes the behaviour of someone towards others at work may not be considered bullying but it may have caused offence, creating disharmony in the workplace. Ignoring repeated complaints about this sort of behavior could affect the willingness of staff to raise concerns and harm trust and confidence in their employer.

Employers should always follow up a disharmony complaint. An investigation may show others are affected. If the behaviour of the person creating the disharmony cannot be changed through counselling and a work performance plan, then the employer may propose they transfer to another work area. In some cases the Employment Court has upheld the view that there may be no other option available to the employer than to terminate their employment.

Updating the That Figures columns

Sunday May 11th, 2014

We have been a little tardy in updating the monthly That Figures columns which feature in the Star community newspaper in Dunedin.
Here are the offerings for March and April.


Enforcing Health & Safety at Work

First the bad news.

Since the Pike River Royal Commission and the Health and Safety taskforce report nothing about compliance and enforcement of Health and Safety law has changed. The law changes will not empower workers. More than 80 percent of the workforce lack independent representation at work. They have no-one to represent them and advocate for them. Health and safety laws don’t allow workers to take action themselves. Outsiders such as Inspectors or powerless workplace representatives will not address their needs. The system failed in the past and is failing forestry workers and others every week.

The good news is the Employment Relations Act system already provides workers a proper way to take individual action over a problem at work. This includes health and safety.
Health and Safety legislation creates obligations that are also enforceable through the processes available to workers under their employment agreements.

This empowers workers to act immediately to deal with clear and present danger. Under employment law there is an individual right (and a duty) for a worker to refuse to do anything unlawful or unreasonable. This includes the right to refuse to do unsafe work or be exposed to harm. Two or more individuals also have the lawful right to strike if the workplace is unsafe
In both situations individuals or groups of workers can urgently contact and appoint a representative under section 236 of the Employment Relations Act to act for them. The employer must deal with the representative, not the worker.

So the Act provides workers the protection of authorising a representative to act for them to enforce their rights. Health and safety law does not.

Unlike a government inspector, the authorised representative’s role is to advocate exclusively for the worker, to enforce the worker’s rights to safety from harm and danger at work.

Every individual has the ability (and duty) to act immediately and enforce their right to work in a healthy and safe workplace when compliance is slack and harm or danger is obvious. They should never hesitate to do so.


More on private mediation

When you strike an employment problem it is worth comparing the available options for dealing with it, considering their value and timeliness.

Private mediation, which I touched on last month, is one of those options.

Mediation is conducted in private and remains confidential. It is faster and cheaper to have an independent expert facilitate or mediate discussion of employment problems. Early settlement is possible. When problems are sorted out quickly there is less impact on the business and its employees, including those who might be involved with the problem.

It is not like going to Court. Mediation should occur before expensive legal processes are started. This rarely happens, which is wasteful and unnecessary.

Anyone can approach a mediator for assistance. Private mediation is immediately available once parties have agreed to use a particular mediator and when one or both are prepared to pay. Most private employment mediation sessions should cost around $1,000 (including reaching a settlement). Payment of the fee may be negotiated at the mediation.

Early involvement of a mediator means the option of discussing settlement is genuinely attempted by the parties before others take over their dispute. Time commitment and cost can be assessed and properly managed before opting for formal legal processes.

There are significant costs in time and fees when you immediately embark on formal legal processes requiring a lawyer or advocate. Such representatives take a formal approach. This usually means they take over managing the problem and direct it into an adversarial process. It is then more likely the problem will lead to litigation before the Employment Relations Authority or the Employment Court.

When this happens the parties to the employment problem lose control as they are no longer at the centre of the process. Direct communication comes to an end and is taken over by third party processes which can be expensive and destructive. This also hardens positions and causes anger and upset. It shuts down options for open and direct communication and, as a result, is counter- productive to reaching early and successful settlement.

This is where and why a mediator can help make communication between the parties a positive rather than a negative and stressful process.

As promised (threatened) Elspeth has been delving into other things

Wednesday December 4th, 2013

This opinion piece about health funding appeared in the Otago Daily Times today - you can find it on-line here

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