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Upton-On-Line - Notes from Employment Law Seminar

Upton-on-line May 18th


Notes from the Employment Law Seminar (continued)


Labour Minister Margaret Wilson has continued her daily seminar on the Employment Relations Bill during Question Time with the long suffering, slightly wan humour of a parent who has refused her children any dessert until they’ve eaten up their greens.

The obstinate refusal of Opposition MPs to interpret the Bill as the Minister alone understands it is straining her contrived good humour. As she sees it, it’s her Bill, and therefore her reading of it is definitive. Members who persist in the folly of believing that it means what it says are being thoroughly irksome.

The trouble all goes back to the Minister’s insistence that no-one will be required by the Bill to change their employment status unless they wish to. This sounds very clear – and the Greens (on whom the Government relies) have been counting on the assurance. The only problem is that the Bill says the opposite.

Upton-on-line can now report a major break through in this apparently unsolveable riddle. The Minister’s assurance applies not in the real world but in some sort of metaphysical universe that can only be reached through her particular mind as it is applied to the Bill.

Readers will recall last week’s focus on clause 154 which the Minister had pretended was there to enable people to determine their employment status just in case they were feeling a little doubtful about it. (See upton-on-line, May 11). Persistent questioning flushed out the fact that the clause is really there to allow unions and bureaucrats to seek declarations whether or not groups of people are in doubt and whether or not they want to change their status.

The correct formulation is that even if a group of (two or more) people are ecstatically happy with their employment status and they’ve recorded that status as they believe it and want it to be, people whom they’ve never heard of and never wish to hear from are entitled to challenge that status and, if they can persuade the court, have it changed!

But still the Minister insists no-one can be made to change their status. At least, not in the parallel universe in which the Minister exists. That’s because, you see, employment status is not a subjectively determined matter which the parties to an arrangement are best placed to describe. Rather, it’s an objective matter that only a truly right-seeing individual (like the Minister) can divine.

While the Minister is, by all accounts, the only person who has a fully objective understanding of these matters, she has graciously condescended to provide judges with guidance in clause 6 of the Bill so that they too will be able to assist people come to understand the error of their (subjective) understandings of their own positions.

(Upton-on-line didn’t attend the Minister’s honours seminar in advanced sophistry at law school, but he’s sure there is some very tricky Kantian metaphysics going on here).

Clause 6, (for those poor muddled people who need the Minister and her law to reveal their true status to themselves) reads as follows:

6 Meaning of Employee
(1) In this Act, unless the context otherwise requires, employee -
(a) means any person of any age employed by an employer to do any work for hire or reward under a contract of service; and
(b) includes -
(i) a homeworker; or
(ii) a person intending to work.

(2) In deciding whether a person (person A) is employed by another person (person B), -
(a) a primary consideration is the extent to which the work that person A does under the agreement, contract, or arrangement and how and when person A does the work is -
(i) subject to the control and direction of person B; or
(ii) integrated into person B's business or affairs; or
(iii) both; and
(b) the Court or the Authority (as the case may be) must, among the other matters that the Court or Authority takes into account, give less weight to anything in an agreement, contract, or arrangement that, expressly or by implication, -
(i) describes person A as a contractor or independent contractor; or
(ii) describes the agreement, contract or arrangement as an agreement, contract or arrangement for services; or
(iii) provides that the relationship between person A and person B is not that of employee and employer.

As sharp-eyed readers will note, clause 6(2)(b) makes it clear that in the Minister’s parallel universe people mean the opposite of what they say. If people believe themselves to be independent contractors and say so in writing, that is deemed to be evidence that they are suffering from some deluded false consciousness. Upton-on-line is at a loss to know why the Minister didn’t have a sub-paragraph (c) that deemed the failure to mention that someone is an independent contractor to be evidence that they are likely to be just that…

Upton-on-line has been asking cosmologists whether any wormholes or superstrings have been identified that give access to this alternative universe. None seems to have been. But help may come from an unexpected corner. Murray McCully has informed upton-on-line that Wilson, unaccountably, gave him an 'A' for his Advanced Industrial Law paper. While McCully suspects the Minister was having an off-day, it may just be that he made it to her universe and back without realising it. The Opposition is urgently arranging a séance to see if he can once again conjure up the magic and break through to the other side. We will report in the next issue.

In the meantime, back in this universe, other realities have reared their head. Lockwood Smith asked the Minister whether “[the] claim made on TV3 News by Mike Jackson of the National Distribution Union that the Employment Relations Bill will be used to take utu [was] consistent with the principle of good faith the Minister claims underpins her bill?” The Minister smiled enigmatically across the vast distance that separates her universe from ours. “I have no knowledge of that statement,” she said.

It’s just as well elections are conducted in this universe. Electoral utu by enraged independent contractors may yet restore sanity.

Footnote: Word collectors will be charmed to know that the ancient Greeks had a word for arguments that claimed (as Margaret Wilson does in Clause 6(2)(b) ) that black is white. It’s paryponoion. Thus, we may accurately say the Minister is suffering from paryponoia. Upton-on-line suspects readers will have more familiar anglo-saxon terms in mind.

Animal behaviour experts visiting the Valley this week have made an exciting new discovery. It is nothing less than a new life form, never previously described.

Observers of the valley will be aware of the basic predator-prey relationships that exist between the Clark/Anderton herbivores and the Shipley/Prebble carnivores. And as we have previously reported, the Greens have a tribal linkage with the main herd while Winston Peters’ small pack plays a useful scavenging role feasting on the scandal-rich manure that the big herds leave in their wake.

Scavenging ecology was, until recently, believed to be a relatively simple opportunistic activity. That was until behaviourists noticed some strange new herd dynamics. Working on the basis that nothing about the Member for Tauranga is ever quite as simple as it seems, researchers discovered that the arch-scavenger is secretly working to support the herd whenever the Greens’ strict dietary code leaves them out on a limb – which is happening more and more frequently.

As herbivores of a particularly pure strain, the Greens have wisely come to the conclusion that there is nothing to be gained by inter-breeding with the Labour herd as the Alliance has. All Jim Anderton has to show for his cross-breeding programme is a 2% poll rating. Already Park Rangers are asking whether a future IVF (In-vote fertilisation) programme may not be necessary to rescue the dwindling gene pool.

But as the Greens have distanced themselves on the Party Hopping Bill (despite its Claytons provisions), and found to their dismay that they had been misled on the terms of the Royal Commission into Genetic Engineering and the use of urgency to ram through the tobacco excise increase, the Government has discovered to its delight that the scavengers are invariably only too happy to tide the government through.

This is, to the excitement of the scientists, the first time a parasite has been known to develop symbiotic tendencies. The symbiosis seems to be selective, though. Winston Peters’ earnest support of the Government does not extend to certain Maori Labour MPs such as John Tamihere. Never mind. With a minority of guaranteed herbivore votes, the Government (having learnt from its predecessor) will jump into bed with anyone who can deliver the proxies.

So a new dynamic is operating. Depending on the issue we have either a Labour/Alliance/Green government or a Labour/Alliance/NZ First government. The Government’s special relationship with the Greens can be switched on and off at will.

The sordid, mercenary nature of this co-habitation has never troubled Mr Peters. (Whoever said that the Darwinian struggle had a moral basis). But for the Greens this is torture. To find that Winston Peters is, in the Government’s mind, your alter ego is like being forced to eat raw meat. How can they bring their tormentors to heel?

Upton-on-line has noticed that the Party Hopping Bill has, from being the Government’s most important legislative priority, slipped mysteriously down the order paper. Why? After all, the Government has the votes to ram it through. NZ First knows a populist issue when it sees one. It’s standing ready to back the measure.

For an explanation we may need to look to the Greens. Perhaps they’ve been fingering the weapon of mass destruction in their arsenal – not supporting the Budget. The Budget this year is predicted to be like one of those mild volcanic eruptions that blanket the Valley in rich vote-buying fertiliser. Getting it through with Green support will be important to maintaining public confidence that the Greens will do the Government’s bidding when told.

That might just be put at risk if the Party Hopping Bill exposed, yet again, the new symbiosis that can be switched on with NZ First if the Greens stand on their dignity. So keeping it out of the House till after the annual fireworks display from Mt Cullen would seem a prudent move.

How comfortable the herd must be as it beds down on the plains each night knowing that it if it’s under attack, the scavengers who once kept it out of office can be called up to defend it at any time.

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