10. DARIEN FENTON (Labour) Link to this
to the Minister of Labour
Does she stand by her statement to the House on 14 September 2010 that the 90-day trial provisions “do not take away rights”?
Hon STEVEN JOYCEDoes the 90-day trial remove the right of an employee whose employment agreement is terminated in accordance with the 90-day scheme to bring a personal grievance or legal proceedings in respect of that dismissal; if not, what does section 67A(2)(c) of the Employment Relations Act mean when it says: “the employee is not entitled to bring a personal grievance or other legal proceedings in respect of the dismissal.”?
The full Act is not in front of me at this point, but the point of the trial period is that employees have the opportunity to voluntarily enter into a trial period. We see the fact that people are getting jobs as a result of these trial periods, where they previously did not have them, as an expansion of their opportunities.
Does the 90-day trial period remove the right of an employee who is hired and fired under the scheme to request the employer to provide a statement in writing of the reasons for dismissal within 60 days after being advised of his or her dismissal?
The Government made sure there were a number of protections in this law: it requires any trial period to be entered into by written agreement, it allows the trial period only for new employees, it retains good faith, it protects employees against discrimination, and it ensures employees on a trial period are treated the same as all other employees as regards leave, wages, and other entitlements. I think the good-faith provision answers the member’s question.
I raise a point of order, Mr Speaker. I asked a fairly straightforward question about whether the 90-day trial period removes the right of an employee to request the employer to provide a statement within 60 days of being dismissed. I do not believe the Minister answered it.
Mr SPEAKERI will invite the member to repeat her question, because it was quite difficult to hear both her supplementary questions. I accept that they were quite detailed. It was probably not the member’s fault; I am not happy with the performance of the sound system at all. I invite her to repeat that question without loss of any supplementary questions. I realise she is trying to ask some quite specific questions.
Does the 90-day trial period remove the right of an employee who is hired and fired under this scheme to request the employer to provide a statement in writing of the reasons for the dismissal within 60 days after being advised of his or her dismissal?
The Government has always said that the good-faith requirements to be communicative and responsive with employees—which, I think, is what the member is alluding to—imply and include telling employees why a trial period has not worked out. In fact, in a recent case Judge Colgan agreed that the balance of good-faith duties in section 4 tend to favour a requirement on employers to give such explanations at the time of giving notice. Yes, it does.
Hon Sir Roger Douglas Link to this
Could the Minister explain why the Labour Party and its union friends are so adamantly opposed—
One as experienced as the Hon Sir Roger Douglas should know that he can ask the Minister whether he agrees with things, but the Minister certainly does not have to explain at all what the Labour Party may believe or say. The Minister has no responsibility whatsoever for that; I would have expected the honourable member to know that better than anyone.
Hon Trevor Mallard Link to this
I raise a point of order, Mr Speaker. I say to my old colleague that he could probably rephrase his question by asking the Minister why he voted against—
Hon Sir Roger Douglas Link to this
Does the Minister agree with me when I say that the Labour Party and its union friends are adamantly opposed to young people whom the education system has failed getting a foothold on the employment ladder, and would he agree with me that the 90-day trial provision allows this to happen very easily?
I agree with the member that the 90-day trial period gives employees who are struggling to get jobs opportunities to obtain those jobs. Department of Labour research has shown that 43 percent of employers who use the trial period would not have—or were not likely to have—employed that person without the trial period, which tends to bear out the member’s assertion.
Does the 90-day trial remove the right of employees to have the opportunity to comment on information about their proposed dismissal to their employer before the decision is made?
As I have said in answer to previous questions, the 90-day trial period requires the retention of good faith. The good-faith requirements are that employers be communicative and responsive with employees. That includes telling employees why the trial period has not worked out. Other good-faith provisions also apply.
What rights does a former employee of HRV in Napier—who was sacked under the 90-day trial scheme and given no reason, and was then told by Work and Income that he will have a 13-week stand-down for the unemployment benefit unless he files a personal grievance claim—have when the 90-day scheme has removed all of his rights to take a personal grievance claim?