Nzjer, 2016, 41(3)

Contents Page: NZJER, 2016, 41(3) Name Title Page Numbers Gordon Anderson Introduction 1-2 Helen White Opinion Piece: Creating an Elegant Solution 3-12 Susan Robson Protections, Loopholes and the Employment Court 13-23 Joss Opie The Right to Reasonably Limited Working Hours in the Smartphone Era 24-56 Leigh Thomson and What are business internships, and do Josephine Burke they offer opportunities for a symbiotic 57-65 relationship? Amanda Reilly and Why New Zealand Should Introduce Suzy Morrissey Paid “Dad and Partner Leave” 66-75 Gaye Greenwood and Employment Relationship Problem Erling Rasmssen Resolution: A gap between objectives 76-90 and implementation The Meaning of “Social Origin” in Angelo Capuano International Human Rights Treaties: 91-112 The Meaning of “Social Origin” in International Human Rights Treaties: A Critique of the CESCR’s Approach to “Social Origin” Discrimination in the ICESCR and its (Ir)relevance to National Contexts such as Australia New Zealand Journal of Employment Relations, 41(3): 1-2 Introduction The third biennial conference of the New Zealand Labour Laws Association was hosted by the Faculty of Law at the Victoria University of Wellington on 27 November 2015. In Issue 41(2), the Journal published six papers from the conference. A further seven papers are published here. This issue opens with an opinion piece by Auckland barrister, Helen White, in which she muses on the important question of why some legislative reforms become entrenched and accepted across the political spectrum while others remain vulnerable to significant amendment or repeal. The paper suggests that reforms that create lasting change need to be “elegant” and well-aligned with international and local changes in the way we think about society – but this does not mean they have to be weak. The paper uses a number of examples to make its point. A second paper that bears on labour reform is that by Susan Robson. This paper, based on the view that effective enforcement of protections relies on consistency of approach by enforcement authorities, considers the implementation and enforcement of statutory protections for those members of the workforce having little or no market power. The paper argues that the Court currently lacks a consistent approach to the issue of protection, that it appears to be overly vulnerable to the way that proceedings are presented and that it fails to consistently privilege the purposive approach to the interpretation of statutory protections. The paper suggests that an understanding of these dynamics is important to understanding the means by which protections are embedded, accepted and institutionalised. Joss Opie’s paper deals with another area of increasing importance – the work/life interface – and in particular the increasing intrusion of work into the private life through smartphones and similar devices. Opie argues that the understandings of work, work time and the workplace in New Zealand law have to be reassessed to take into account the transformation of these concepts by mobile technology. He suggests that decisions will be needed on how best to protect people’s rights in this age of limitless connectivity and that, as the duty-holder under the International Covenant on Economic, Social and Cultural Rights (ICESCR), which guarantees the right to reasonably limited working hours, the New Zealand state needs to take the lead in deciding what to do. Leigh Thomson and Josephine Bourke address an increasingly prevalent labour market trend – unpaid internships – and considers internships in the New Zealand business context. The paper poses questions around the symbiotic and exploitative aspects of the relationship, including the influence of labour law. It proposes possible options to assist interns and employers develop an appropriate, symbiotic relationship, which includes reciprocal benefits. Amanda Reilly and Suzy Morrissey’s paper argues that the parental leave debate in New Zealand needs to encompass the introduction of an independent entitlement to a separate period of paid parental leave for fathers and partners. This paper considers the question of the design of such an entitlement and concludes that partner leave should be well-paid, ring fenced for “Dads and Partners” and at least two weeks long. Funding options are also discussed. Gaye Greenwood and Erling Rasmussen use the example of dispute resolution in the education sector to illustrate a disjuncture between the ERA’s objective of resolving of employment 1 New Zealand Journal of Employment Relations, 41(3): 1-2 relationship problems close to the workplace and actual practice, where there is a propensity to bypass these intentions by confidential settlement negotiation or escalation to a personal grievance. The paper suggests that, in education, this disjuncture is a consequence of the complex employment and stakeholder relationships in that sector. The paper sets the scene for the forthcoming publication of a model for collaborative conflict management that provides process guidelines for organisations under the current legislative framework. In the final paper, Angelo Capuano discusses the meaning of the term “social origin” in international human rights treaties and, in particular, its meaning in relation to Australian legislation which prohibits discrimination based on “social origin”. The paper focusses on the interpretation of the term by the Committee on Economic, Social and Cultural Rights which monitors the implementation of the International Covenant on Economic, Social and Cultural Rights. His paper critiques the Committee’s approach and argues that it requires development if it is to have relevance and its intended effect (prohibiting discrimination on the basis of “inherited social status”) in national contexts, such as Australia. Again particular thanks, on behalf of both myself and the authors, are due to Louise Grey who edited the papers in this issue of the Journal. Guest editor Gordon Anderson, Professor of Law, Victoria University of Wellington. 2 New Zealand Journal of Employment Relations, 41(3): 3-12 Opinion Piece: Creating an Elegant Solution HELEN WHITE Abstract This opinion piece by Auckland barrister, Helen White, muses on the reasons why some labour reforms become an enduring and entrenched feature of labour law and others fail to do so. She suggests that reforms are likely to be enduring when they resonate strongly with the public, reflect international thinking and are accepted by the courts and legal profession. Key words Labour law, employment law, reform. Introduction New Zealand is currently experiencing a period in which people of all political persuasions and backgrounds accept the broad problems in the current employment law paradigm, but where governmental efforts to address these problems – on both the left and the right – are specific, crude, and largely ineffective. This opinion piece argues that these problems can be avoided by generalising the principles on which our laws rely, and, instead of protecting individual groups and classes, provide protection to vulnerable parties in all commercial relationships that are characterised by severe power imbalance and dependence. This piece will begin by sketching the successes and limitations of the Employment Relations Act 2000 (ERA) and then proceed to elaborate on the concepts entrenched therein. It will then discuss the limitations of the ERA, as well as the problems with much well-intentioned legislation since its enactment. This piece will then expand upon precisely what principles should be advanced by our law. Finally, it will explain what can be done to solve these problems, and lay out a pathway for necessary reforms in the future. Since taking office in 2008, the National Government has repeatedly tinkered with the ERA; the Employment Relations Amendment Act 2014 was the fifth such amendment in almost as many years. These changes have not been dramatic, but have steadily eroded the protections originally found in the Act. Since the 2014 Amendment Act, the Government has introduced more changes, again in a haphazard way that reflects a lack of deep understanding of either the extent or the causes of the problems that have become apparent. The attempt to address zero hours arrangements, for example, has been criticised for being more likely to entrench, rather than eradicate, the problem. The introduction of the ERA radically changed the way New Zealanders approached employment relationships. Margaret Wilson, the then Minister of Labour, successfully integrated concepts that were taking hold in other jurisdictions, such good faith and a distinction between relational and transactional contracts, and extended concepts that were Specialist employment barrister, Auckland. 3 New Zealand Journal of Employment Relations, 41(3): 3-12 already established, such as natural justice. These concepts summed to a legal ethos that is now taken for granted by people of all political persuasions. This success was for several reasons. Firstly, these concepts resonated with the New Zealand courts and legal establishment because they were part of an international intellectual movement in employment law. Secondly, they were more practical in application than the concepts in the Employment Contracts Act 1991 (ECA), which they replaced. The employment relationship cannot afford to be one of ongoing hostility, is usually sustained, and requires mechanisms and a language that all parties can use to resolve conflict; the ECA ignored this reality, but the ERA understood

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