New Year, New Government, New Policy?

As we get started on 2024 it’s useful to reflect on what last year’s election brought us in terms of changes to employment settings.  Given how long coalition negotiations went on for, many of the changes were lost in the shuffle of the Christmas madness.   

National’s employment policies were pretty light overall.  The focus was on scrapping Fair Pay Agreements and restoring the ability of all employers to use 90 day trial periods.  Both of these have now been achieved.

There are a few other chestnuts from the Coalition Government over the next three years however.  Below we have summarised the main points from the Coalition Agreement that National and ACT put together, along with our thoughts on them.  The main points from the National/NZ First Coalition agreement will follow in a separate article.

1.       The simplification of personal grievances, and removing any remedies if the employee is at fault.  This is in the National/ACT coalition agreement, and is light on detail.  Given the nature of the parties we assume that the “simplification” will be in the employer’s favour, but quite how a relatively simple thing will be simplified further is unknown. 
Equally we don’t know what removing remedies if the employee is at fault will look like.  Section 124 of the Employment Relations Act 2000 already requires the Employment Relations Authority to, where they have found an employee has a technically valid case, assess the degree to which an employee has contributed to the situation arising in the first instance and reduce any remedies but such amount – such is not unusual, but does generally lead to an employer still paying out something but less (though there have been cases where an employee has been found to have a technical win but remedies have been reduced by 100%!). 
Possibly the final legislation will be to remove any remedies if the employee has been found to have contributed to the situation at all, but in our experience in the Employment Relations Authority (ERA) and in practical terms, any such impositions are likely to lead to the ERA deciding less and less to assess an employee has contributed to the situation. 

2.       Setting an income threshold above which a personal grievance cannot be raised.  It will be interesting to see the detail, in particular where the threshold is set.  We assume that this is targeted at senior managers and CEOs, but it’s not clear whether the policy includes benefits not directly included in salaries, such as housing and vehicle allowances. 
We also expect this will face considerable push back from the business sector – it effectively allows for termination of employment at will for senior employees – and we think it will die on the vine given it takes access to justice away from one defined class of parties.  If it came to pass and we were signing up to an employment agreement we would insist on a clause guaranteeing at least six, if not twelve, month’s remuneration should the agreement be terminated by the employer for any reason.  That seems reasonable given they would have no other avenues to challenge a decision. 

3. The last from the National/ACT coalition agreement is to state that “contractors who have explicitly signed up for a contracting agreement can’t challenge their status in the Employment Court”. 
This seems to us a cynical policy as it does allow for those contractors to challenge their status in the Employment Relations Authority – though there have been claims that the Coalition Agreement uses incorrect wording and should instead refer to the ERA rather than the Court.  As it is however the wording appears to prevent only a Contractor from challenging an ERA determination, leaving rights of appeal open to only one party. 
As above, this appears to go against natural justice and it’s difficult to work out the rationale behind it, unless Uber has had some influence on ACT’s policy of course…