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THE LATEST NZJER


New Zealand Journal of Employment Relations
Volume 43  Number 2

In the latest New Zealand Journal of Employment Relations the following topics are covered. If you wish to read the full articles or download the entire NZJER issue you need to subscribe to the NZJER.

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Editorial note

ANNICK MASSELOT,  Professor of Law, University of Canterbury

This special issue of the New Zealand Journal of Employment Relations showcases some of the best papers presented at the Fourth Biennial Labour Law Conference of the New Zealand Labour Law Society held on17-18 November 2017 in Christchurch. The conference focussed on labour law in transition in a global and technological world, with the theme intended to encompass new developments and emerging areas in labour law. The presentations covered a wide range of topics including: de-regulation of the workplace and competitive attitudes towards employment issues; aspects and implications of the recent amendments to health and safety laws; workplace stress, bullying and harassment; restructuring, redundancy and redeployment; modern workplace environments and cyber-work; and equality, human rights and precarious work. The conference attracted a large number of participants from within New Zealand, including academics, practitioners, judges from the Employment Court and members of the Employment Relations Authority as well as government and parliamentary officials and union members. A good range of Australian speakers attended the conference, as the New Zealand Labour Law Society has built good relations with the Australian Labour Law Association. Participants from Europe and Asia were also present.


A brave new technological world: Opportunities for gain and pain…

CHIEF JUDGE CHRISTINA INGLIS

Dinner speech to New Zealand Labour Law Society Conference 24 November 2017


Regulating for Decent Work in a Global Economy

 JUDY FUDGE*

Abstract

The title of this article captures three important shifts in nomenclature in contemporary debates about labour law: from labour to work; from law to regulation; and from the national state to the global space. These shifts signal a trend towards broadening, not simply in the sense of expanding the personal scope of labour law, but, more radically, in terms of encompassing a plurality of platforms, techniques and spaces for regulating work. “Decent work” also captures a change in how we understand the normative basis for regulating work, which involves a movement away from unequal bargaining power and subordination to a more amorphous, contested and contextualised understanding of the values that work regulation ought to achieve. I focus on two aspects of the global economy – financialisation, and global value/supply chains – to illustrate my claim that it is opportune to move from an overarching narrative of labour law to one of regulating for decent work. I will also provide some examples of what I mean by regulating for decent work in a global economy. To conclude, I suggest the importance of developing approaches to regulating for decent work that are both attentive to the path along which labour market institutions evolve and the need to avoid rosy-tinted nostalgia.

*Professor Judy Fudge, School of Labour Studies, McMaster University. 


Address to 2017 Biennial Conference of NZ Labour Law Society: Reflections on the United Nations Dispute Tribunal 2009-2016

JUDGE CORAL SHAW*

Introduction

It is self-evident that a proper justice system should be independent, transparent, effective, efficient and adequately resourced.

The UN system of internal justice is its only form of administering justice for it staff members. By 1995, Secretary General Kofi Annan, in response to concerns expressed by both UN staff and management had acknowledged the need to address its inadequacies. It was 60-years-old and had been inherited from the League of Nations. It was based on a protracted peer review system that produced recommendations on staff members’ employment disputes. Staff had a right to an appeal to the former UN Administrative Tribunal (former UNAT) but the Tribunal members did not need to be judges or even legally qualified. It sat irregularly and had a backlog of cases of least five years, and often more. Its decisions were non-binding so the Secretary General and management could choose to accept or reject them.

* Judge Coral Shaw (retired), November 2017


Re-crafting the enterprise for the gig-economy

TROY SARINA* and JOELLEN RILEY**

Abstract

Much of the voluminous literature emerging on the gig economy and the impact of “platform”-based work on labour standards focusses on the vulnerability of workers to particular forms of exploitation: low rates of pay, precarious engagement, and unsafe working conditions. Proposed solutions often focus on classification problems: should these workers be classified as “employees” to become entitled to various labour rights? Classifying the worker as an “employee” necessarily assumes the existence of an “employer”. This paper explores the potential for a (possibly) more radical solution to worker exploitation, by investigating an alternative form of business organisation for these kinds of enterprises. The cooperative (well known in Europe, and in agriculture in Australasia) may provide an appropriate enterprise model in the so-called “sharing” economy.

* Senior lecturer, Macquarie University Faculty of Business and Economics, troy.sarina@mq.edu.au

** Head of School and Dean, and Professor of Labour Law, The University of Sydney Law School, joellen.riley@sydney.edu.au


Indigenous Peoples and Employment Law: the Australasian model

PAUL ROTH*

Abstract

This paper examines the relationship between Indigenous values and employment law in New Zealand and Australia, with some comparative reference to the position in North America and in relation to international standards.

* Professor Paul Roth, Faculty of Law, University of Otago, New Zealand


Too Modest a Proposal? Work Rights under the Proposed Constitution Aotearoa

JONATHAN BARRETT* and AMANDA REILLY**
 
Abstract

Constitutional lawyers, Sir Geoffrey Palmer and Andrew Butler, have sought to spark debate by publishing a proposed constitution, including a Bill of Rights, for Aotearoa New Zealand (Constitution Aotearoa). The current New Zealand Bill of Rights Act 1990, which is neither entrenched nor superior legislation, guarantees freedom of association but is otherwise silent on work rights. In addition to affirming freedom of association, and freedom from forced labour, Constitution Aotearoa includes three provisions expressly relating to work rights. These are the non-justiciable rights to resort to collective action in the event of a conflict of interest; to satisfactory health and safety conditions; and to earn one’s living in an occupation freely entered into. Is this too modest a proposal which misses the opportunity to provide strong and abiding, fundamental rights for everyone who works? This article seeks to answer that question by drawing on other bills of rights, including those of Canada, Germany and South Africa, and the Charter of Fundamental Rights of the European Union, to consider the work rights which might be included in a new constitution for New Zealand.

* Dr. Jonathan Barrett, Senior Lecturer, School of Accounting and Commercial Law, Victoria University of Wellington, New Zealand 

** Dr Amanda Reilly, Senior Lecturer, School of Accounting and Commercial Law, Victoria

Recent Developments in Australian and New Zealand Age Discrimination Law: A Comparative Perspective

ALYSIA BLACKHAM*

Abstract

As individuals live longer, healthier lives, both Australia and New Zealand are experiencing a dramatic demographic shift. In an effort to support older workers’ increasing participation in the labour market, and recognise the dignity of workers of all ages, both jurisdictions have introduced age discrimination laws that prohibit discrimination on the basis of age in employment. However, ageism remains a serious challenge facing older workers in both jurisdictions. This article draws on comparative legal analysis of recent developments in age discrimination law in Australia and New Zealand, focussing particularly on developments in 2016, to consider emerging issues in the two jurisdictions. It argues that recent developments in age discrimination law in Australia and New Zealand reveal problematic tensions in the prohibition of age discrimination, that are likely to recur in years to come.

* Dr Alysia Blackham, Senior Lecturer and Discovery Early Career Research Fellow, Melbourne Law School, the University of Melbourne.


Addressing Modern Slavery in New Zealand Law

ASHLEIGH DALE*

Introduction

New Zealand, like many other developed, wealthy countries, is a destination for modern slavery and human trafficking. As New Zealand becomes a more popular, international travel destination, the dark underbelly of exploitation and trafficking becomes more prevalent. This paper aims to show that the behaviours commonly associated with modern slavery are inadequately addressed in New Zealand law to deter and prevent these behaviours.

* University of Victoria in Wellington, accounting/commercial and taxation law graduate.


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