After six months of the Employment Relations Act, the Employers & Manufacturers Association has examined its performance and handed out an interim report on it.
Overall, the EMA says the ERA has earned a pass mark despite early dire predictions about its
consequence, most of which related to the Bill as it was originally drafted.
"The Act deserves high scores for some elements, and fails in others," said the EMA's Employment
Relations Manager, Peter Tritt. "But in many respects it's far too soon to be assessing the law's impact.
"The biggest problem is uncertainty. As with any new law it's hard to know what all the changes
will mean in practice until the Court of Appeal reviews them. Nevertheless, an interim half-year report is worthwhile.
"Under the various provisions we find the following: * Employment Relations Service: Excellent.
Who would have thought a government department could perform as well as this. Top marks for delivery of services.
* New Employment Relations Authority: Very good. It's currently quick and effective, but may become subject to
demand outstripping supply.
* Unions: Very good. With 130 unions registered since the Act began, many of them enterprise based, the new rules
regarding union registration can be called a success. The 15-member threshold is mitigating the impact of unions'
statutory monopoly on collective bargaining.
* New mediation service: Good. Teething problems and some mediators are inexperienced, but overall quick and
efficient.
* Reinstatement after dismissal: Pass. A realistic Authority decision held that re-instatement for an unjustified
dismissal does not mean this must be ordered. The solution must be feasible and is not an option when a breakdown in
relationships has occurred.
* Dependent contractors: Fail. The law used to be clear about them. Now it will stay uncertain until judicially
interpreted.
* Written agreements for all new employees: Fail. Non-compliance on this is pervasive, perhaps as high as 70 per
cent among small to medium businesses, who seem unaware or don't care about the risk of substantial penalties. It's the
same on ensuring new appointees obtain independent advice about their employment agreements.
* Employment relations education leave: Fail. But no employer is complaining. Course development is just
beginning, so the burden of this extra leave on employers can't be measured.
* Militant unions: Fail. But it's not the Act's fault. The ongoing saga of the wharfies seeking to reclaim their
waterfront monopoly with unlawful actions, threats and intimidation has nothing to do with the new law.
* Union access rights: Fail. How is it that the law protects minors from unscrupulous employers, but allows open
season for union officials to badger young employees about union membership?
* More strikes? Too soon to tell. Work stoppage figures for the December 2000 quarter are not yet available. But
the high profile vets strike illustrated how powerful unions have become under the new law - the nation's largest
employer was prohibited from replacing any of its striking vets.
* Collectivisation of workplaces: Too soon to tell. Claims made about droves of
workers joining the union seem extravagant, but there's little evidence.
* Multi-employer collective agreements: Too soon to tell. Initial employer concerns were that the new Act made
these more difficult, but the two private sector contracts that survived the Employment Contracts Act regime have been
successfully re-negotiated. Though seen as a Mecca for the trade union movement, no new private-sector MECA's are on the
table.
* Higher wage settlements? Too soon to tell. The nation's largest union (Engineers) has been a model of restraint
during the Act's honeymoon period with most wage settlements in the 2-3% range. Most settlements involving other unions
are in the same band.
* Employment Court: To soon to tell whether the "unreconstructed" Court is going to head off again into loopy
anti-employer decisions that, again, warrant wholesale knocking back by the Court of Appeal.
* Good faith bargaining: Too early to tell, but shows promise. After an initial scare over highly prescriptive
rules and Treaty of Waitangi obligations, the interim code of good faith looks set to proceed on a sensible basis.
There's no reason to believe why good faith bargaining can't become an enduring part of our industrial scene as it is in
North America.
"The fledgling law has made a good start, and is showing promise. But the second half year will
have to see it survive a predicted winter of union discontent, and possible adverse court decisions."
Further comments: Peter Tritt tel 09 367 0921