Dialogue: Employers lost in blizzard

By RICHARD RUDMAN*

Employment law used to be seen as law for lay people.

Some of us can remember when lawyers were not allowed to appear in the Arbitration Court, where the judge was joined on the Bench by worker and employer representatives. Their role was to ensure that the niceties of the law were balanced against the realities of the workplace.

It was a time when most employers did not have to worry too much about employment law.

Hours of work, holiday entitlements and other terms and conditions were largely governed by legislation, or negotiated in some distant place by unions and employers' associations. The agreements they made applied to most employers and workers, bound as they were by the system of automatic award coverage and compulsory union membership.

Back in the factory or office, employers need only read the award the employers' association sent them to know how much to pay staff.

For non-award employees, a simple appointment letter was usually sufficient documentation. Management and executive staff were unlikely to question their employers.

It was also a time when there did not seem to be as much employment law. That impression is probably not correct, if anybody could be bothered counting the pages of the statute books. But employment law did not seem to loom so large.

For today's employer and their staff, it is all very different.

Employment law is now very much the province of the lawyers, which means that employment law has become, well, more legalistic.

Certainly there is more litigation. And it is more likely to be reported in the media. Last year, the country sat riveted by reports of the Christine Rankin case, which was, whatever its other interest, not very significant legally.

There are certainly more litigants. Disgruntled employees (or their lawyers) are more likely to drag employers before the Employment Relations Authority or the Employment Court.

Access to these tribunals is straightforward and relatively inexpensive. The queue is not long and there is a reasonable chance of some recompense for the effort because it is increasingly difficult for employers to get everything right.

Partly, that is their own fault.

Many people who become employers, and quite a few who have been in business for a while, just do not seem to appreciate what obligations and responsibilities they take up when they hire people.

Maybe it is because their university degrees do not include much practical business management. They learn marketing theory and buzz-words, but not much about writing an employment agreement.

Or maybe their lawyers and advisers have not done a good job. It is not unusual to come across employment agreements, 18 months after the Employment Relations Act came into force, that still do not meet its requirements.

The employer has been assured by a lawyer or an HR consultant that the agreements comply, but I wouldn't want to defend them before the Employment Relations Authority.

Partly, employers do not get everything right because employment law is constantly changing and introducing new ideas.

For example, the relations act introduces the good-faith bargaining concept to the statute book, without detailing what it means or how it should be applied. That is left largely to the lawyers and courts.

When you are legislating for human relations (the Government insists that its new act makes the employment relationship a human relationship and not simply a contractual economic exchange, but the Court of Appeal is not so sure), it is not very helpful that Parliament leaves key issues for interpretation by employers and managers.

Most of them are not lawyers. Most of them will not read the legislation carefully. They really just want to be told what to do, as simply, clearly and directly as possible, and be left to get on with business.

And partly it is hard for employers to get it right because there is just so much employment law.

Already, this year has quite a full schedule of changes, with more to come.

* January 1. Amendments to the Human Rights Act established new dispute resolution procedures.

* March 18. New minimum wage rates take effect.

* April 1. New legislation restores accident compensation scheme to original no fault and community responsibility principles, and re-introduces lump sum payments.

* July 1. Paid parental leave available.

* July 1. Industry Training Act changes take effect, including power to levy employers for training costs.

* September 2. Proposed amendments to Health and Safety in Employment Act would strengthen legislation, extend coverage to fatigue and work-related stress, and give employees additional rights of participation and intervention.

*? Introduction of new training wage.

*? New legislation on annual leave and statutory holidays, including longer sick and bereavement leave entitlements.

*? Proposed extension of workplace smoking bans.

*? Tighter immigration rules, with bigger penalties for employers who take on illegal immigrants.

*? Changes to shop opening hours on public holidays.

* Richard Rudman is the author of the New Zealand Employment Law Guide. The 2002 edition of this plain-language guide will be published tomorrow.