The Changes in Article 103A of the Employment Relations Act

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Table of Contents

Introduction
General Review of the Article 103A of the Employment Relations Act
Legal Procedure
Interpretation of Section 103A
Conclusion
Reference List

Introduction

Employment legislation in New Zealand is featured with the extensive focus on the matters of compensation and care of the employees. In fact, this is explained by the fact that employers have fewer opportunities to protect their rights in comparison with employers, hence, the legislation system is based on the principles of protecting rights and the aspects of employment freedom. Considering this fact, the legislation projects are mainly focused on improving the sphere of employees’ right protection. Hence, the aim of this paper is to discuss the changes in article 103A of the Employment Relations Act. The aim of the analysis is to assess the possible consequences of changing the word “would” for “could” and how it will help employees to benefit if some conflicts appear.

General Review of the Article 103A of the Employment Relations Act

First, it should be emphasized that the act itself is closely linked with the right defense practices, as well as the regulation of the employment sphere. As it is stated by Department of Labour (2010), the key purpose of this act is to amend the Employment Relations Act in order to provide the extended employment freedom. The article 103A is focused on restoring the right of the employees after the possible strike or lockout. The possible changes of the law formulation will extend this freedom; however, the legislation itself will become milder for the employers, as the employment process itself presupposes the possibility of strike, nevertheless, the legal procedure of strikes are not observed, hence, the employers should also have the legal shield for protecting from possible problems.

Legal Procedure

As it is stated by Chemis and Opie (2007), the key problem which is stated in the section 103A is the problem of dismissals. The discussed changes may be regarded as the interpretation of the subjective aspects of dismissal that are viewed through the prism of redundancy as a common example. Hence, the key aspect that should be stated is associated with opinions of legislative bodies:

Quite how section 103A reconciles with Justice Somers’ opinion in Hale that an honest assessment of an employer’s commercial needs cannot be subjected to objective tests of fairness, reasonableness, or necessity is difficult to fathom. The time will surely come when the principles in Hale and Simpsons Farms are fully tested against section 103A. The Court will no doubt be called upon to reconcile the clear language and intention of section 103A with the sanctity of managerial prerogative. When these two powerful and apparently conflicting principles emerge, neither will emerge unscathed. (Chemis and Opie, 2007, p. 201)

In general the key principle of the changes of the legislative context will result in the changed perception of the legislation and the changes in solving the legal sues associated with dismissals. The actual importance of the changes may be analyzed by regarding the dismissal cases. Considering the case Air NZ vs. V, it should be stated that in spite of the obvious violation of the employment policies, the employee had an opportunity for rehabilitation. Nevertheless, if the changes of the legislation are accepted, this will offer an opportunity for the company to impose sanctions for such workers. These sanctions will be associated with the aspect of protecting the company’s policy:

The policy included the option of rehabilitation at the plaintiff’s discretion. After the positive test and under the policy, the defendant met with the plaintiff’s Chief Medical Officer (“CMO”). The defendant told the CMO that he did not believe he needed to abstain from both cannabis and alcohol. The same day the defendant met with an alcohol and drug counsellor, Roger Green. Mr Green diagnosed the defendant as having a high probability of being both alcohol and cannabis dependent. (Chief Judge Colgan, Judges Travis, 2009. p, 186)

In the light of this statement it should be emphasized that the changes of the legislative context of the section 103A will improve the control factors from the side of a company, nevertheless, the rehabilitation principles and opportunities for employees will be increased.

Interpretation of Section 103A

In fact, the law tests associated with the analyzed changes would influence the interpretation principles of the section. The legal significance of the current distinction between “would” and “could” in the common law and statutory tests for justified dismissal is explained by the fact that “would “ context is closely associated with the recommendatory character of legislation, while “could” is more obligatory for both sides. Hence, in accordance with Delahunty (2003, p. 28), the following statement should be emphasized:

The objects of the Act already referred to may be taken as a guide to the standards which apply to a fair and reasonable employer. In light of these, s103A can be read as giving the Authority and the Court the opportunity objectively to evaluate the subjective decision of an employer against the standard of a hypothetical fair and reasonable employer in order to ensure that the objects of good faith behaviour and the need to address any inherent inequalities is achieved in all the circumstances of that case.

In the light of this statement it should be emphasized that the actual importance of the interpretation changes are closely linked with the necessity to extend the opportunities in employee-employer relations. The test for justification within the frames of the considered changes will impact the employer’s actions and the actions of the employer in the context of the response for employee’s actions.

In order to realize the actual importance of the changes of “would” for “could”, there is a necessity to realize the reason of the changes. As it is stated in the research by Bandyopadhyay (2001, p. 321), the current law makes too much emphasis on the matters of employers’ process, however, the action is not focused upon. In general, the amount of the possible reasonable responses is huge, nevertheless, the changes of the word “would” for “could” would reflect the actual importance of the employment process from the point of view of the Employment Court. The judgment for the employment, and the related aspects will be interpreted from the position of an extended requirements for both sides: employer and employee. (Judge Shaw, 2005)

In fact, the interpretation of the legislative context may be assessed as the required importance of the changes. In accordance with the analysis by Gallacher (2006, p. 128), it should be stated that the actual reason of these changes are associated with the requirement of the employment commission activity:

Defending the claims of the employees associated with the improved right defense can be costly and stressful and reduce productivity. While such claims are few (about 2% of total claims) their presence can have a disruptive effect. A mechanism is required to ensure they can be dealt with promptly. Any decision to dismiss a claim under this provision can be appealed to the Employment Court. Additionally, Many claims continue in the system for years even though it is clear that those who lodge them have no intention to pursue them. Eliminating such claims will reduce costs and avoid the stress and time of defending such claims.

Nevertheless, independently on the actual importance of the employment legislation improvement, these changes will be linked with the actual importance of interpretation changes. Hence, the necessity of changes will be closely linked with the employer’s defense from the employees who are intended to violate the general rules and then claim for the employment authority defense. (Gibson and Watane, 2001. P. 373)

In fact, the analyzed perspective of changes may be regarded from the perspective of the improved employment legislation. Nevertheless, the interpretation of the changed will add work to the employment authority, hence, the changes will require improved analysis of the legislation. (Gault and McGrath, 2001)

Conclusion

In fact, the changes of the world “would” for “could” will change the entire character of the legislative norm in general. Originally, section 103A is closely associated with dismissals because of the violations of the employment norms. Additionally, the issues of rehabilitation, recovery and compensation are touched in this section. The analyzed changes will extend the amount of the obligatory tools for the employer, and decrease the amount of recommendation tools for employees.

Reference List

Bandyopadhyay, D. (2001). The Industry Premium: What We Know and What the New Zealand Data Say. New Zealand Economic Papers, 35(1), 53.

Chemis, P., Opie, J. (2007) Justification since Section 103A: has anything really changed? Chemis and Swarbick, Auckland.

Chief Judge Colgan, Judges Travis (2009) Air New Zealand Ltd v V. Employment Court, Auckland (AC15/09).

Department of Labour (2010) Personal Grievances – Discussion on Paper. PO Box 3705 Wellington, New Zealand.

Delahunty, J. (2003). New Zealand: The Welfare State Ploughed Under. Monthly Review, 45, 28.

Gallacher, S. (2006). Avoiding the Law of the Jungle: Scott Gallacher Comments on New Zealand’s Place in a Multilateral Rules-Based Trading System. New Zealand International Review, 31(1), 10.

Gault, Blanchard, McGrath JJ (2001) “W & H Newspapers Ltd V Oram” Court of Appeal (CA140/00).

Gibson, J., & Watane, C. (2001). Why Is Job Security Lower for Maori and Pacific Island Workers? the Role of Employer-Provided Training. New Zealand Economic Papers, 35(1), 1.

Judge Shaw (2005) Air New Zealand Ltd v Hudson. Employment Court, Auckland AC30/06.

Keith, K. (2007). The Application of International Human Rights Law in New Zealand. Texas International Law Journal, 32(3), 401.

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