Lecture/seminar outline

114.709: Managing
1. international instruments
Employment Relations (ER) 2. legislative and institutional
frameworks
Week Four: Regulation I 3. tripartism and social dialogue

Prof. Jane Parker Readings

QB Room 3.03 - Rasmussen (2009) Ch 10 pp. 289-
Email: J.Parker@massey.ac.nz 92
- Rudman (2009) or newer
- Parker et al. (2011, 2019)
- IUF (2002)
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1 International instruments (i) Iinternational (supra-national) regulation

– strong forms:
• (new) economic regional blocs (e.g. EU, NAFTA)
• what has prompted a focus on this?
• EU: integrated markets, including labour markets
– comparative studies of nation states, their economic • harmonisation of employment minima and workplace
performance and institutional characteristics regulation (e.g. EU directives transposed into national
settings e.g. EWCs, information & consultation of
– globalisation employees)

– increased focus on MNEs: NZ and overseas based • less pronounced in Asia and Pacific rim countries
through membership of APEC (Haworth 2003) but
– insights of international business (IB), international emphasis on bilateral arrangements
HRM, cross-cultural management and international
law • nb: why is the above be of relevance when
considering the management of ER in NZ?
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• key institutions and instruments:

• bilateral arrangement for NZ: ANCERTA (Australia-NZ
Closer Economic Relations Trade Agreement • International Labour Organisation (ILO)
– opened both markets in terms of business opportunities – forefront of establishing international employment
and provided access to employment and (some) social regulations
entitlements
– closer interaction has made employment regulation and – through ILO membership, countries sign up to the
conditions in Australia important for NZ trends and fundamental principles of the ILO and can accept more
comparative research (e.g. Barry and Wailes 2005, specific labour standards advanced through ILO
Bamber et al. 2011) Conventions (ratifiable) and Recommendations
(guidelines)
• e.g. outflow of NZers to Australia to take up jobs
– ILO Conventions and Recommendations = international
instruments

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 • on international labour standards, the 1998 Declaration
on Fundamental Principles and Rights at Work has
• ILO has a particular policy formulation process that covered the basic positions:
upholds tripartite governance (national governments,
employer organisations and unions as committee – freedom of association and the right to collective
members and involved in its policy-making) bargaining
– elimination of forced and compulsory labour
• gives its Declarations, Conventions and – abolition of child labour
Recommendations more grounding in ILO member
– elimination of discrimination in the workplace
countries
• these fundamental rights are important as they set the
nb: it was the centenary ILO Conference minima for employment standards
earlier this year – check out new declarations,
conventions and recommendations on its • nb: no clear enforcement procedures without the active
website participation of national governments

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• New Zealand situation

• alignment of ILO approach also seen via emphasis on
– ILO & international labour standards have a considerable
tripartite solutions, e.g.
impact on NZ employment relations (Haworth 2004)
– (NZCTU and Business NZ have input into public policy
– ER Act 2000 influenced by thinking behind ILSs and the formation)
Act’s Object Clause refers directly to ILO’s Conventions 87
– dealing with casual and temporary employment (June
and 98
2008 announcement) informed by ILO Recommendation
on the Scope of the Employment Relationship
– partly a reaction to the controversy over the ECA 1991:
NZCTU complaint caused considerable media exposure – Fonterra: signed an international framework agreement
and put the government under pressure to align the (with the NZ Dairy Workers Union and IUFW) in 2002
legislation with the ILO obligations which committed it to respect principles of ILO
Conventions and apply minimum labour standards
wherever it operates

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International Framework Agreements (IFAs)

Eurofound report (2009):
• IFAs promote key features of the respective national models of social
partnership and cooperative industrial relations. This implies that IFAs are
clearly present in MNEs whose headquarters are located in social market
economies characterised by collective interest representation as the basis
for the regulation of work and the labour market, while there are only a few
examples of IFAs in liberal market economies.
• spread of IFAs, particularly among MNEs from outside continental Europe,
has so far remained quite limited and it is probably unlikely that the situation
will change in the near future given the evolution of the strategies of the
social partners at global level. In that event, existing IFAs might just remain
a significant but restricted number of positive cases.
• IFAs – relatively new ER feature (European Foundation 2009)
– By end of 2012, 113 in existence, only five concluded before the
year 2000
– most of them were signed with European-based companies
– only 1 case in NZ: Fonterra (also only 1 case in Australia:
banking group NAG)
– Factsheet on IFAs:
https://www.businessnz.org.nz/ data/assets/pdf_file/0020/7461
2/IOE-Fact-Sheet-for-Business-IFAs.pdf

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 Fonterra’s International Framework Agreement
Case study: Fonterra
• Fonterra Cooperative Group Limited – some background
• Fonterra IFA signed on 14 May 2002 by the company, all
– NZ multi-national dairy cooperative owned by 10,500 NZ subsidiaries, IUF and the NZ Dairy Workers’ Union
http://www.iufdocuments.org/www/documents/Fonterra%20agreement-e.pdf
farmers Nb: http://www6.rel-uita.org/companias/nestle/fonterra_y_nestle-eng.htm
– Sectors: dairy and fish
– Industry: manufacturing and retail
– Responsible for 30% of world’s dairy exports
– Revenue exceeding $16.75 billion
– NZ’s largest company
– Size: 15,600 employees
– Subsidiaries include Anchor, Mainland Cheese, Tip Top

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What does the Fonterra IFA cover? Also:

• Fonterra undertakes to respect the principles of ILO
conventions
• agreement stipulates the appointment of a review
– 87: freedom of association and collective bargaining and committee with union and company representatives.
right to form and join trade unions
Meets at least once a year to monitor its application
– 100: equal remuneration
– 111: discrimination in employment and occupation • Fonterra also commits to informing its joint venture
– 29, 98, 105, 135, 138, 182 partners of its obligations under the IFA

• also aims not to discriminate or take prejudicial action • agreement has also promoted increasing liaison
against any employees for belonging to a union
between unions
• committed to sharing relevant company info. during
collective bargaining, & providing healthy & safe working
conditions
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Exercise: Fonterra IFA United Nations (UN)

1. Read the Fonterra IFA document.

2. In your opinion, what are its strongest and weakest
features? Why?
3. Do you think the document could be more extensive? If
so, how?
• UN does not deal with labour matters as such but …
• recognises the ILO as the specialised agency
responsible for taking appropriate action for the
accomplishment of the purposes set out in its
Constitution

• and some UN instruments of more general scope have

covered labour matters

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• various provisions on labour matters contained in the:
• UN General Assembly has adopted legally binding
Conventions on labour matters, including:
– International Covenant on Economic, Social and
Cultural Rights – Convention on the Elimination of All Forms of Racial
Discrimination (1969)
– International Covenant on Civil and Political Rights
– Convention on the Elimination of all Forms of
• both legally binding HR agreements, adopted in 1966 Discrimination against Women (1979) (CEDAW)
and entered into force 10 years later, making many of
the provisions of the Universal Declaration of Human Convention on the Rights of the Child
Rights (UDHR) effectively binding (1989)

• because of their comprehensive nature, the Covenants

- Nb: regional instruments of international
are drafted in general terms and various labour rights
labour law (e.g. Council of Europe
are dealt with in a less precise and detailed way than
instruments, EU instruments, NAFTA) -
ILO standards
see ILO website

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2. Legislative and institutional frameworks

• nb: breaches of international instruments do take
• key forms of collective regulation (Parker et al. 2011)
place
• often informed by international regulation and
• it has been argued that New Zealand has at instruments
times breached its obligations under the UN • e.g. ER Act 2000 influenced by thinking behind ILSs and the Act’s
CEDAW and obligations under the ratified core Object Clause refers directly to ILO’s Conventions 87 and 98
ILO conventions 100 (Equal Remuneration) and • employment law governs the
111 (EEO) and the UN UDHR
relationship between employers
& employees – mainly of
concern to employers, employees &
unions (collective & individual
status and rights) (cf. workplace law)

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Roles of employment and workplace law (i) Prominent employment-related statutes in NZ

• to provide the framework for the employer-employee

relationship (every employment agreement is governed
• ER Act 2000
by the ER Act 2000) • ER Amendment Act 2018
• Employment Standards Act 2016
• to set minimum terms and conditions of employment • Health and Safety at Work Act 2015
(statute law) • Holidays Act 2003
• to regulate workplace standards and conditions (health
and safety legislation is the most prominent regulator of • others?
working conditions and workplace standards)

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(a) ER Act 2000
The object of this Act is –
(a) to build productive employment relationships through the promotion of
mutual trust and confidence in all aspects of the employment environment
and of the employment relationship –
(i)by recognising that employment relationships must be built on
good faith behaviour; and
(ii)acknowledging and addressing the inherent inequality of
bargaining power in employment relationships; and
(iii) by promoting collective bargaining; and
(iv) by protecting the integrity of individual choice; and
(v)bypromoting mediation as the primary problem-solving
mechanism; and
(vi) by reducing the need for judicial intervention; and
(b) by recognising that employment relationships must be built to promote ob-
servance in NZ of the principles underlying ILO Convention 87 on Freedom
of Association, and Convention 98 on the Right to Organise and Bargain
Collectively.
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(b) Health and Safety in Employment Act 1992 (old H&S statute)
• object was to promote the prevention of harm to all people at work,
and others in, or in the vicinity of, places of work
• applied to all NZ workplaces and places duties on employers, self-
employed, employees, principals & others who are in a position to
manage or control hazards
• emphasis on the systematic management of H&S at work. It
required employers & others to maintain safe working environments,
& implement sound practice. It recognised that successful H&S
management is best achieved through good faith co-operation in the
place of work and, in particular, through the input of those doing the
work.
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• Health and Safety at Work Act 2015 (current)
• on Monday 4 April 2016, the new Health and Safety at Work
Act 2015 (HSWA) came into effect – for info., see:
http://www.mbie.govt.nz/info-services/employment-
skills/workplace-health-and-safety-reform
– what does this Act emphasis in terms of rights and responsibilities of
key ERparties?
• the majority of the first phase of regulations to support HSWA
have been now been finalised and came into force on 4 April
2016, along with theAct
• you might like to visit the WorkSafe website for more info.
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• ERA and ECA 1991: points of difference
– shift from employment contracts to employment relationships
– introduction of good faith bargaining
– promotion of collective bargaining (just tolerated under the ECA
1991) in line with ILO Conventions 87 and 98 (which were not
observed under the ECA)
• ERA and ECA 1991: similarities
– individual choice still promoted
– similar emphasis on less judicial intervention (cf. IC&A system
instituted by the ECA 1991)
– nb: ERA object indicates that mediation will be given a more pro-
active role
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• Dept of Labour administered and enforced the HSE Act
in most workplaces
• Maritime NZ and Civil Aviation Authority administer and
enforce the Act in the maritime and aviation sectors. NZ
Police works with the Dept enforced the Act in relation to
commercial vehicles
• HSE Act was first passed in 1992, but was reviewed and
amended substantially in 2002; Regulations
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(c) Holidays Act 1993
• purpose is to promote balance between work and other
aspects of employees’ lives and, to that end, to provide
employees with minimum entitlements to -
– (a) annual holidays to provide the opportunity for rest and
recreation;
– (b) public holidays for the observance of days of national,
religious, or cultural significance;
– (c) sick leave to assist employees who are unable to attend
work because they are sick or injured, or because someone
who depends on the employee for care is sick or injured; and
– (d) bereavement leave to assist employees who are unable to
attend work because they have suffered a bereavement.
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(ii) Key legislative changes
a) 2011 changes to the ER Act 2000
• Extension of 90 day trial period to all employers
– trial period was extended from employers with less than 20 employees, to
all employers. This means any employer and employee can enter into an
employment agreement which provides for a trial period of 90 days or
less. During these 90 days, the employer can dismiss the employee
without risk of a personal grievance for unjustified dismissal.
• Justification for dismissal and fair process
– test for considering if an employer’s actions & decision to dismiss an
employee were fair & reasonable now based on “whether the employer’s
actions & how it acted were what a fair and reasonable employer could
(rather than would) have done in the circumstances at the time.”
– min. requirements of fair & reasonable process set out in the Act &
employers no longer so scrutinised for minor procedural defects
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NZCTU response (2010) to the first batch of ER
Act changes
• Government is not listening to NZ workers ‘with its divisive,
imbalanced & unfair employment legislation’.
• ‘80% of NZers support the right to appeal unfair dismissal even in
the first 90 days … More than 22,000 workers took to the streets in
October to express their opposition and thousands appealed to the
Select Committee to abandon these changes’ (CTU Secretary, Peter
Conway)
• ‘A lack of balance in this legislation, swinging the advantage too far
in favour of employers. The 90 day provisions undermine job
security, as does the weakening of the personal grievance process.
The restrictions on union access will obstruct workers seeking to
exercise their democratic right to bargain collectively and get union
advice and support. It appears that the decision to allow employers
to unreasonably demand a sick note for a single day’s absence was
made without reading current legal requirements’.
(CTU Secretary, Peter Conway)
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Business NZ response (2010)
• see employment law as becoming more accessible and
affordable in compliance terms
• ‘businesses have said they want less complexity, less
process and more flexibility in the laws around
workplaces to help them get more productivity and
workplace harmony’
• changes reflect a professional approach … are a
practical and ‘good practice’ approach to ER that should
help achieve more productive workplaces
- Business NZ Chief Executive, Phil O’Reilly
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• Union access only with employer’s consent
– union reps who want to enter a workplace will need the employer’s
permission to do so. Employers must respond to the request within
one working day, allowing the union rep to enter or providing written
reasons if consent is denied. Limited circumstances where consent
can be denied, so employers should tread carefully when
contemplating denying access.
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• ‘They show clearly that such demands can apply if there are
reasonable grounds to believe sickness is not genuine’
• ‘None of these changes will make New Zealand more productive,
reduce unemployment or lift wages. The Government is turning
against the workers of New Zealand. Every time they touch an
employment law it is to do the bidding of business interests’.
• ‘CTU is offering to work with the Government to try and help New
Zealand close the gap with Australia. But to do that we have to lift
the minimum wage, lift productivity, and establish industry wage
standards which return a bigger share of the profits to the workers,
bringing greater prosperity to the population at large, not just to a
tiny minority of high earners’
(CTU Secretary, Peter Conway)
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ER Amendment Act 2015
Check out the MBIE site re. the legislative changes:
http://www.mbie.govt.nz/info-services/employment-
skills/legislation-reviews/amendments-to-the-employment-
relations-act-2000
Essentially, the main changes were:
• removal of the 'good faith requirement' that obliges employers to conclude a
collective agreement during bargaining
• removal of the employers' obligation to provide rest breaks of a certain length
and at a particular time,
• removal of protections to new workers and workers in sectors that are
vulnerable to exploitation (such as cleaning and food service),
• allowing of employers to opt out of multi-employerbargaining and reduce the
pay of employees conducting partial strikes.
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– the recent changes to the ERA 2000 were debated
on 27 July 2015 at a panel forum hosted by the
NZERS and MPOWER (see
http://www.massey.ac.nz/massey/learning/colleges
/college-business/research/mpower/events.cfm)
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• Reactions/responses to the ERA changesfrom
2015 (10,000+ submissions …)
– NZCTU: “Massive reaction against employment law changes”
(NZCTU website, 25 July 2013):
http://union.org.nz/news/2013/massive-reaction-against-
employment-law-changes
– Business/legal view (National Business Review, 5 August 2013):
http://www.nbr.co.nz/article/2013-set-bring-significant-changes-
employment-law-holiday-review-GB
– What are the key union and employerarguments
over the changes?
– What’s your view on the changes?Why?
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Latest batch of changes to the ERA 2000 (the ER
Amendment Act 2018)
• purpose of changes: to improve fairness in the workplace, and
deliver decent work conditions and fair wages
• Essentially, takes us back to the legal context of 2015 with key
changes including:
• reinstatement of set meal and rest breaks;
• strengthening collective bargaining and union rights;
• restoring protections for vulnerable workers (e.g. in cleaning
and catering), regardless of size of employer
• limiting 90 day trial period to businesses with fewer than 20
employees
(most changes effective from 6 May 2019)
More info: https://www.employment.govt.nz/about/employment-
law/employment-relations-amendment-act-2018/
• nb: ER party responses?
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Video and exercise
• Heather Smith ‘90 days’ unfair dismissal story
http://www.youtube.com/watch?v=P3yTjbkxEdw
and Adam Grieve’s story:
https://www.youtube.com/watch?v=VOpIOW
uaD-M
• What do you think of Heather and Adam’s
situation and comments? Why?
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Holiday Act changes
– employees now able to “cash up” one week of their four weeks
leave. This will only be permissible at the request of the employee
and should not be discussed by parties during salary negotiations.
– employees who have irregular working hours & pay, now have their
holiday, sick & bereavement leave calculated on an “average daily
pay” basis.
– employers & employees will be able to agree to transfer the taking
of a public holiday to another working day.
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(iii) Scope of employment legislation
• as well as enunciating the key statute law, we can also
consider employment law by its scope (Rudman 2009:3-6)
• employment relationship
– ER Act 2000, ER Amendment Act 2018, State Sector Act 1998,
State-Owned Enterprise (SOE) Act 1986, State Sector Act 1988,
Crown Entities Act 2004 (public sector), Immigration Act 1987
• unions and union membership
– ER Act 2000, ER Amendment Act 2018
• collective bargaining
– ER Act 2000, ER Amendment Act 2018
• hours of work
– Minimum Wage Act 1983, ER Act 2000
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• wages
– Minimum Wage Act 1983 (MWO), Wages Protection Act 1983,
Income Tax Act 2007, Kiwisaver Act 2006, Child Support Act 1991,
District Courts Act 1947
• holidays and leave
– Holidays Act 2003, Parental Leave and Employment Protection Act
1987
• health and safety
– HSW Act 2015, Hazardous Substances and New Organisms Act
1996, Smoke free Environments Act 1990
• accident compensation
– Injury Prevention, Rehab., and Compensation Act 2001
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(iv) employment institutions
• ER Act 2000 has a special approach to dispute resolution and
law enforcement
– mediation seen as the primary problem-solving mechanism
– reduced need for judicial intervention
• Act gives exclusive jurisdiction over employment agreements
& other employment-related matters to the Employment
Court (s 187) & Employment Relations Authority (s 161)
• while Employment Court decisions can be appealed to the
Court of Appeal or the Supreme Court on questions of law,
Employment Court decisions on the construction of
employment agreements are final
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Employment Court
• deals with applications for hearings of matters previously
determined by the ERA, actions for penalties for breaches of
the ER Act 2000, questions of law referred to it by the
authority, etc. (Rudman 2009:11)
• Court has exclusive jurisdiction in other ways (e.g. it declares
that no other court has jurisdiction over any matter which is
within its or the ERA’s exclusive jurisdiction; the personal
grievance procedure is the only legal process an employee
may use to challenge a dismissal or any aspect of it)
• except on grounds of lack of jurisdiction & in circs set out in
the Act, Court’s proceedings & decisions can’t be
challenged/reviewed by any other court (but its decisions may
be appealed to the C. of Appeal/Supreme Court on questions
of law)
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• anti-discrimination
– Human Rights Act 1993, Equal Pay Act 1972 (imminent? Equal
Pay Amendment Bill)
• privacy
– Privacy Act 1993, Protected Disclosures Act 200
• training
– Industry Training Act 1992, Modern Apprenticeship Training Act
2000, ER Act 2000 (union members), HSW Act 2015
• community service
– Volunteers Employment Protection Act 1973, Civil Defence Act
1983, Juries Act 1981
• note
– pertain to employment and other spheres
– dynamic (e.g. PaEE Act 1990 repealed after six months)
– certain areas relatively ‘light’ in legal regulation terms now
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• nb: not all employment or workplace law cases fall within
the jurisdiction of the ERA and Empt Court. Prosecutions
under the HSE Act 199 taken in the District Court, for
instance
• also, opinions and decisions from quasi-judicial tribunals
and administrative bodies may influence the law of the
empt relationship and the workplace (e.g. Human Rights
Commission and the Privacy Commissioner which both
have ambiguous roles as advocates of the causes
embodied in their legislation and investigators of
complaints; and the Human Rights Review Tribunal for
civil proceedings for breaches of that legislation)
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• nb: Court is not superior to the ERA in usual hierarchical way
• Employment Court has a limited, but exclusive, jurisdiction to
hear and determine proceedings base don tort (i.e. a civil
wrong for which the law provides a remedy) issued against a
party to a threatened or actual strike or lockout or against any
person in respect of picketing related to a strike or lockout.
Also has full and exclusive jurisdiction over applications for
injunctions relating to strikes and lockouts or picketing
• Employment Court has considerable operating flexibility. It is
bound to consider whether attempts have been made to
resolve matters by mediation and must direct that mediation
be attempted before it hears any matter unless it believes
mediation will not be construction, against the public interest
or will undermine the proceedings
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Employment Relations
Authority
• established by the ER Act 2000 to resolve ER problems by
establishing the facts and making a determination ‘according
to the substantial merits of the case, without regard to
techicalities’ (s 157)
• nb: an investigative body in a legal system which largely relies
on adversarial processes, but has the power to make
determinations about ER problems. Tribunals have historically
been focused on conciliation and arbitration
• has a chief and at least 2 other members (in practice c. 15
members) appointed and not required to have any particular
skills or background (in practice: most are experienced in
employment law or ER)
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ERA case study
The NZ Rugby Football Union (NZRFU) had various
contractual arrangements with provincial unions regarding
player secondment. One provincial union contracted with a
player on a different basis, raising a question of whether the
contractual arrangements between that union and the NZRFU
had been breached.
The NZRFU said the Employment Relations Authority and the
Employment Court had no jurisdiction because the matter
was not an ‘employment relationship problem’. The Court
disagreed. It said the Employment Relations Act did not focus
on who was bringing the action but on the subject matter of
the problem. Thus, parties who were not direct parties to an
employment agreement could file a statement of problem:
Waikato Ruby Union (Inc.) v NZRBFU (Inc).
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Resolving employment relationship problems
• key points on problem resolution in the employment
relationship: https://www.employment.govt.nz/resolving-
problems/
• note the emphasis on local/internal and informal
resolution
• note that the ERA and Employment Court are separate
and independent tribunals, each having status as a
court. The ERA also has a unique status as an
investigative body. The Act also carefully circumscribes
the Employment Court’s powers in relation to the ERA
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• ER Act 2000 gives the ERA extensive and exclusive
jurisdiction to make determinations about ER problems
generally (s 161) (Rudman 2009:14-15)
• ERA does not have the jurisdiction to make determinations
about bargaining matters or to fix new terms and employment
conditions (there are some exceptions e.g. when one or more
parties to CB seek the assistance of the ERA when they are
having serious difficulties in concluding a collective
employment agreement)
• generally, the ERA may interpret an existing term of
employment but must not create new terms
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• ERA role
– ER Act 2000 says little about how the ERA should
operate procedurally, provided that it complies with
the ‘principles of natural justice’ and acts in ‘a manner
that is reasonable having regard to its investigative
role’.
– it must also aim to promote good faith behaviour;
support successful employment relationships;
generally further the objects of the Act; and act as it
thinks fit in equity and good conscience, but not do
anything that is inconsistent with the Act or the
relevant employment agreement.
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Mediation
• though the Act nominates mediation as its primary problem-
solving mechanism, it does not specifically establish a
mediation service or provide for the appointment of mediators
• instead, it requires the MBIE Chief Executive to employ or use
people to provide mediation services to support all
employment relationships
• left to the Chief Executive to decide how to provide mediation
services but the Act gives examples
• mediators must be independent of other parties to the
mediation (i.e. not a member of the ERA or Empt Court)
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• confidentiality of the information process with some
exceptions (e.g. confidentiality requirement does not
apply where mediation services are provided to help the
parties engaged in collective bargaining)
• otherwise, all written or oral communications made ‘for
the purposes of the mediation’ are protected
• settlements following mediation are final and binding and
enforceable by them in the ERA
• nb: some growth in the use of restorative justice
approaches in NZ workplaces (see Julich and Cox, 2013)
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3. Tripartism and social dialogue
(i) Defining tripartism
• a process (of cooperation) whereby governments consult
and involve representatives of employers and workers in
the formulation of socio-economic policies at the national
& industry levels & in particular, on the legal framework
of labour/employment relations & labour-related policy;
• ensure that the social partners' views and concerns are
reflected in the policies and laws formulated; and
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(ii) Defining social dialogue
• ILO definition: includes all types of negotiation, consultation
or exchange of information between, or among,
representatives of governments, employers and workers, on
issues of common interest relating to economic and social
policy.
• social dialgoue can exist as a tripartite process, with the
government as an official party to the dialogue, or as bipartite
relations between representatives of labour and one or more
employers.
• decision-making and consultative mechanisms offered by
formal tripartite bodies and collective bargaining are the most
wide-spread institutionalised forms of social dialogue (ILO
2007)
•
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Dispute resolution services
• under the ER Act 2000, the Labour Group Chief
Executive may provide dispute resolution services to
parties in work-related relationships that are not
employment relationships
Labour inspectors
• have powers of enforcement under the ER Act 2000, the
Equal Pay Act 1972, the Holidays Act 2003, the
Minimum Wage Act, the Parental Leave and
Employment Protection Act, the Volunteers Employment
Protection Act 1973 and the Wage Protection Act
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• provide the social partners with opportunities to contribute to
socio-economic progress & thereby enable them to fulfil a
wider role than one of only providing direct services to their
members in relation to matters covered by the employment
relationship
• nb: tripartite arrangements - both formal and informal - that
may be adopted (consultation fora or bodies) are the
means which give effect to the basic objectives of tripartism
• the practice of tripartism may be cosmetic or effective –
government attitudes and social partner capacity are
important in determining this (de Silva 1997)
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• social dialogue and collective bargaining may occur at
various levels – national, sectoral, regional/ provincial
and/or enterprise – and may be more or less formalised
• successful social dialogue structures and processes
have the potential to address and resolve important
economic and social issues, encourage good
governance, advance social and industrial stability and
boost economic progress
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(iii) NZ employment relations situation
• NZ has experienced key changes in the political context
for social partnership
• in the 1980s, it radically shifted from one of the most to
one of the least regulated ‘Western’ economies,
including a programme of privatisations and industrial
relations reforms which severely weakened union rights
• from the late 1990s, various employment and labour
market protections were reintroduced under relatively
benign economic conditions by the Labour-led
governments of 1999-2008
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• in recent decades, we have seen less formal bi- and tri-partite
cooperation between ER actors than is typical in Europe
• for many years, there have been no significant cooperative
agencies working permanently at the tripartite level
• in 2019, however, under the current government announced
the establishment of a new ‘Future of Work’ forum, involving
representatives of the NZCTU, Business NZ and the
government
• there are also a handful of smaller bipartite organisations
operating at sector/industry level (e.g. National Bipartite Action
Group in the health sector – Parker et al., 2019).
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– belongs to & supports lead organisations such as the
HRC, and like the CTU is represented on the National
Advisory Council on the Employment of Women (NACEW)
– nb: it has also lobbied against certain initiatives (e.g. the
Labour-led government’s legislation requiring compulsory
EEO policies and pay equity initiatives introduced towards
the end of 1990)
– but Business NZ and its affiliates report that they advocate
a mainstreaming approach to all labour market issues via
dialogue and activity with other social partners
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• under the National coalition (from Nov. 2008), stress on
education & economic growth to improve the position of
different groups, though more naturally it favours ‘voluntarist’,
market solutions to labour force & equality problems (Hyman
2008)
• deregulatory approach reflected by the removal of the right to
fair dismissal in the 90 day trial period, restriction of union
rights to enter workplaces, cancellation of pay equity reviews
• … however, policy remains framed by the ER Act 2000 which
aims to build productive employment, address bargaining
power inequality, support collective bargaining, etc. (Parker et
al. 2011)
• and NZ has ratified the ILO Tripartite Consultation
(International Labour Standards) Convention (No. 144)
& as noted, current government is developing tripartite mechanisms
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Other egs of tripartite, bipartite and social dialogue
activities and mechanisms involving NZ ER agencies
• Business NZ contributes to tripartite working parties and
international bodies and debate, for instance
– is a lead advocate at the 2009 International Labour
Conference
– endorsed the conclusions of the ILO Report of the
Committee of Gender Equality (2009) On the need for
social dialogue and tripartism
– assisted Labour-led government’s inquiry into WLB and
the Government’s Work, family and parenting study
– worked with union movement on various initiatives such as
widening access to workplace-based learning
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• NZ Council of Trade Unions (CTU) also has operations which
extend to international, national and local arrangements. It
has been party to a number of tripartite and social dialogue
arrangements, including
– (with Business NZ & government) the ILO campaign on
Decent Work
– worked with DoL Partnership Resource Centre (now
defunct)
– union (and business) reps on the Ministerial EEO Advisory
Group (under Labour)
– lobbying role, formal submissions (e.g. on minimum wage,
parental leave)
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Tripartism, social dialogue and level Conclusions
• e.g. international
International instruments
– government department (esp. DoL), CTU & Business NZ
engagement on ILO issues, providing the former with • various contextual factors encouraging international regulation
information on international labour practices & trade
• International regs can be strong or less formal/institutionalised
agreements with reference to ILO core standards
• key institutions including the ILO and UN. Countries ratify ILO
• e.g. national conventions (specific labour standards). ILO upholds tripartite
– govt depts (e.g. DoL), CTU and Business NZ on initiatives governance
like the WLB Project and the Workplace Productivity
• 1998 Declaration on fundamental rights set employment
Group and the former PaEE Steering Group; DoL tripartite
standards minima; enforcement an issue
Sector Labour Market Development group
• ILO and ILSs impact on NZ employment relations (e.g. ER Act
• e.g. sub-national
2000; tripartite solutions; Fonterra’s IFA)
– Community groups and trusts engage in direct dialogue &
submissions

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Legislative and institutional arrangements

Next week
• key form of regulation, often informed by int’l initiatives • REGULATION 2
• employment law v workplace law – collective bargaining
• key employment statutes: ER Act, HSE Act 1992, Hols Act 2003, – collective employment agreements
recent legislative changes and social partners’ responses
– industrial conflict and dispute resolution
• employment institutions’ roles, jurisdiction and unique aspects – workplace and voluntary initiatives
• resolving ER problems – key steps (flowchart)
• key ER law changes – significant workplace and worker • Recommended readings:
implications
– Rasmussen et al. (2011)
– Rudman (2009 or newer)
Tripartism and social dialogue
– Parker et al. (2011, 2019)
• definitions, level(s) and presence in NZ employment relations
– key examples
– political context
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