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.

March

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.

April

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.


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