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THE LATEST NZJER


New Zealand Journal of Employment Relations
Volume 43  Number 3

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 is the second instalment of the special issue of the New Zealand Journal of Employment Relations which showcases some of the best papers presented at the Fourth Biennial Labour Law Conference of the New Zealand Labour Law Society held on 17-18 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 Battle for Hearts and Minds: New Zealand’s Legal Response to Work-Stress-Related Depression and Cardiovascular Disease

DAWN DUNCAN*

Abstract

As patterns of work change, so do the resulting patterns of work-related ill health. While medical thinking on stress-related illnesses has shifted enormously in the past decades, the law has not. This paper will explore New Zealand’s legal response to work-stress-related illnesses, especially depression and cardiovascular disease. It will outline the current interaction of the Health and Safety at Work Act 2015, the Accident Compensation Act 2001 and the personal grievances regime in cases of work-related depression and cardiovascular disease, and highlight key areas of reform needed. The law, as it stands, is failing to provide either adequate protection from, or compensation for work-stress-related illness. With heart disease as New Zealand’s leading cause of death, and rates of mental illness on the rise, addressing the more complex relationships between work and health becomes an urgent task for the future of New Zealand labour law.

*Lecturer in Commercial Law, Faculty of Business, University of Auckland. Email: d.duncan@auckland.ac.nz


Adopting a Health and Safety Framework for the Assessment and Remediation of Earthquake Prone Buildings

JOHN GODDARD*

Introduction

He Whakatauki: He Korowai Whakaruruhau
“He korowai āta raranga
He korowai whakaruruhau
Mō tātou katoa”

This whakatauki (proverb) features prominently in the Independent Taskforce’s Report on Workplace Health and Safety.  The korowai (cloak) was woven by Robin Hill who explained that:

This korowai is made of pheasant feathers, both male and female birds, which speaks to me of the inclusion of all people.  The taniko (woven border) is designed with a family in mind.  The marriage of two people and their respective families join to make one pattern.  Although people belong together in society we are all individuals so there are individual bundles of feathers throughout the korowai body.

The image, symbolism and cultural significance of the korowai embodies and embraces the requirements for best practice regarding workplace health and safety.  The Independent Taskforce considered that “urgent sustainable step-change in harm prevention activity and a dramatic improvement in outcomes” are required to improve New Zealand’s poor health and safety performance.   

* A litigation associate for WCM Legal. Email: john.w.g@wcmlegal.co.nz 
Resolving Workplace “Bullying”

DAVID G BECK*
               
Introduction

This paper provides a brief definitional overview of the current law on what is popularly known as the problem of workplace bullying, and comments on how to avoid and/or resolve matters from a practising employment lawyer’s perspective confronted with finding an adversarial legal solution to what is often a breakdown in workplace communication.

Bullying is a term that, I think, is particularly unhelpful (with its stark connotation of abuser and victim). It is difficult to avoid the term, given its common usage and its evident descriptive force, but the breadth of behaviours it describes often makes the term unnecessarily inflammatory. Although, Dr John Clarke, author of Working with Monsters, archly, suggests that bullying is a more helpful definition to calling someone a workplace psychopath:  

Although it could be deemed spin, when responding to a claim of bullying, framing the issue in less negative terms may produce a better resolution.  I recommend a focus on the behaviors in dispute (which are often mutual) and the use of terms such as: you have made an allegation of “unprofessional behavior” or that you have raised an allegation of “negative interaction”. However, for this analysis I will adopt the in-vogue term bullying.

* Partner at SB Law, incorporating R A Fraser & Associates
What if Voters Wanted a Less Flexible Labour Market?

SUSAN ROBSON*

Abstract

In the event of a public recognition of the connection between flexible labour markets, wage stagnation and high social inequality ratios, an option for redress in government policy is the re-collectivisation of employers and employees.

The implications for labour law traditions that emerged following the enactment of the Employment Contracts Act (ECA) 1991 (and that were reinforced by the operation of the Employment Relations Act (ERA) 2000) include dispute resolution mechanisms, currently (in New Zealand), fundamental to flexibility.

Analysis of the factors that influenced the transition from collectivist to individualist labour relations suggests a means by which this transition might be reverse engineered.  Returning personal grievance resolution, the foundation of the ECA transition, to collectives will be crucial to the success of any reverse transition.

* PhD Otago University.
Labour Law and the Labour Market: A Case Study of Malaysia

JONATHAN SALE*

Introduction

According to the International Labour Organization (ILO):  “…global economic integration has caused many countries and sectors to face major challenges of…continuing high levels of unemployment and poverty…and the growth of both unprotected work and the informal economy…”

But the level of unemployment and size of informal sectors vary across countries over time.  For instance, the unemployment rate is around three per cent  and non-agricultural employment in the informal sector is about 11 per cent  in Malaysia. On the other hand, the unemployment rate is close to six per cent  while the “informal sector employs between 61% and 70% of the total labour force”  in neighbouring Indonesia.

By and large, labour laws developed in “both the common and civilian law systems” in the twentieth century.   In the case of Malaysia, might the outcomes described in the preceding paragraph, among others, be explained through the ways its labour law and regulation have been framed and/or revised over time?  Generally, is there a close relationship between the country’s labour law and economy or variety of capitalism?  Specifically, does its labour law contribute to labour market formation,  including relatively low levels of unemployment overall, and employment in the informal sector in particular?  Owing to its pre-colonial, colonial and post-colonial histories, might the ways by which Malaysia’s labour law and regulation have been framed and/or revised show legal pluralism, exogenous (e.g., common law and civil law) and endogenous (e.g., “ethnic distribution”) origins?

This paper aims to provide some plausible answers to these questions through systems analysis and case study of labour law and regulation in Malaysia and their links to the economy, including the variety or varieties of capitalism, labour market formation and outcomes.

The paper is divided into six parts. The first section reviews some relevant literature and develops a systems framework for the case study.  In the second section, the history and development of Malaysian labour law is briefly traced and some key provisions of the Employment Act are discussed.  From this historical account, the third section teases out aspects of the context and political economy of the country’s labour law.  The fourth section delves into varieties of capitalism.  Outcomes in terms of employment and gross domestic product are tackled in the fifth section. In the last section, the paper concludes with an examination of the links among labour law and regulation, varieties of capitalism, labour market formation, and work creation, as well as some implications and challenges.  

* PhD candidate and Lecturer, Faculty of Business and Law, University of Newcastle, Australia. Email: jonathan.sale@newcastle.edu.au. 

Transition of a Contract of Employment: from the Locatio Conductio to the Relational Contract

GYÖRGY KISS*    

Abstract

This article presents the correlation between the economic background of a given era and legal regulation of labour. It aspires to answer the question: what legal construction most suits a current global economy. The author shows the effect of locatio conductio on the employment contract of today and offers three possible scenarios regarding future labour law. One such scenario is the maintenance of the current, traditional concept that strives to secure a balance between security of the employee and flexibility of employment. The second scenario entails possibilities provided by the so-called gig economy; it deconstructs almost all limitations provided by labour law and, at the same time, annuls the structure of labour law as it is today. The third scenario proposes an adaptation of a specific interpretation of long-term contract – relational contract – to labour law.

* Professor, National University of Public Service; University of Pécs; Chair of MTA-PTE Research Group of Comparative and European Employment Policy and Labour Law; Kiss.Gyorgy@uni-nke.hu; kiss.gyorgy@ajk.pte.hu


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