Lawyers warn against new jobs with small firms

December 12, 2008

A group of leading employment lawyers is now advising people not to take jobs in small companies in the wake of the passing of the Employment Relations Amendment Act this morning.

The lawyers - Helen White, Simon Mitchell and Greg Lloyd, who all have extensive experience in representing employees - say that anyone who can't afford to lose their job should not accept one with a small company, especially if they are already in secure jobs.

In a statement issued today, the lawyers say that the new act exposes everyone who starts a new job in a company where there are fewer than 20 employees to the risk of being sacked without even being told the reason, let alone having any ability to do anything about it.

They are calling on Parliament to urgently review the law.

Ends - statement follows

Statement on the Employment Relations Amendment Act

We are employment lawyers with extensive experience in working with employees. We are issuing this statement because of our deep concern about the provisions of the Employment Relations Act Amendment Bill, and particularly the way in which is has been rushed into law.

As a consequence of the rush there are fish-hooks in the act which could seriously damage the interests of ordinary working people. This is of particular concern because those working in small businesses often don't have unions or legal advice to help.

These are the type of people whom we frequently represent, and our experience in this area leads us to the conclusion that this new law will have serious consequences for many of them.

For example, think about a hairdresser who is so good at the job that he/she is attracting all the customers from a nearby competitor. Under these new provisions, a rival salon could poach the hairdresser with promises of more money. Two weeks' later the hairdresser is sacked - as allowed under the law. It turns out that the new employer's real intention was to damage a rival's business and used the hairdresser as a pawn.

The situation could be even worse if, as is not uncommon in the hairdressing industry, the worker - enticed by the prospect of more money - has signed a restraint-of-trade clause which prevents him or her from working for another salon within, say a 5km radius for six months. (Restraints of trade are lawful if limited time and geographical area so they are reasonable).

The hairdresser is left in the position of not being able to go back to the old job, and unable to get a new job in the same area, and yet has no come-back on the employer who set him or her up. Because the legislative change has been rushed, through no-one has turned their mind to avoiding this kind of exploitation.

Further, we consider the legislation will expose working people to discrimination. It is nonsense to say that you can be protected against discrimination but you have no legal recourse to challenge the way that discrimination has manifest itself; if you are not told why you've been dismissed, how can you challenge it as discrimination?

If, for example, the hairdresser joins a union in the first 90 days, or even opts to join the on-site collective agreement, which is his or her right in the first 30 days on the job, what will stop her new employer sacking her to avoid employing unionised staff and just not telling her why?

We therefore recommend that:

* Parliament urgently review these unforeseen consequences of the provisions of the Employment Relations Act Amendment Act.

We advise workers:

* Not to accept a position with a company of fewer than 20 employees if they can't afford to lose the job.

* Anyone who must take such a job, consult your union or a lawyer before signing the employment agreement.

* Do not sign any form of restraint of trade which applies in the first 90 days.

Simon Mitchell (Unity Chambers)

Greg Lloyd (National Distribution Union)

Helen White (Unity Chambers)

December 12, 2008

ENDS

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