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Journal of Employment Relations
Volume 43 Number 3
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Journal of Employment Relations the following topics are covered. If
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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
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.
Adopting a Health and Safety Framework for the Assessment and Remediation of Earthquake Prone Buildings
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
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: email@example.com
Resolving Workplace “Bullying”
DAVID G BECK*
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
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?
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
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
* PhD candidate and Lecturer, Faculty of Business and Law, University
of Newcastle, Australia. Email: firstname.lastname@example.org.
Transition of a Contract of Employment: from the Locatio Conductio to the Relational Contract
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;
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