Monday 19 July 2010

Pushing Past the Illusions

Capitalism unmasks itself: John Key's most serious blunder is allowing us to glimpse the brutal reality beneath the benign illusions of his administration.

RUSSELL BROWN has written an excellent summary of the Department of Labour research paper on the impact of the 90-day "Fire at Will" legislation. His entirely justifiable indignation at the skewed nature of the investigation will no doubt be shared by most of his readers. How is it possible, they will ask, that a supposedly responsible state agency could embark on such a study without consulting the New Zealand citizens most directly affected?

Meanwhile, over at Red Alert, the Labour MP for Wellington Central, Grant Robertson, has posed another vexing question about the study. How was it that copies of a highly contentious departmental report were being openly circulated at a political party conference hours before its official public release?

Partisans of blogosphere journalism would no doubt add that if CTU President, Helen Kelly’s, sources were sufficiently well-placed to tip her off about the paper’s unauthorised release, then why weren’t the mainstream media similarly well-informed? Why was it left to Grant Robertson to alert the public to a flagrant breach of State Services protocols? Why was it Russell Brown at Public Address, rather than the New Zealand Herald’s John Armstrong, who crunched the report’s numbers on our behalf?

It’s only when we start to ask questions like these that the true character of society’s core institutions begins to emerge from the veils of illusion in which they are normally shrouded. And we only feel impelled to push past them when it’s clear that the citizens they're supposed to protect are not being adequately defended. At such moments we learn to our astonishment that the illusions of neutrality, even-handedness and rationality which these institutions have so assiduously nurtured can be jettisoned in an instant if the interests of the dominant social classes require it.

In feudal societies these latter would be the landed aristocracy, the senior clergy and the wealthiest city merchants. In capitalist societies like our own the dominant social classes are made up of employers, financiers and managers, senior civil servants, and that modern equivalent of the medieval church hierarchy – the corporate news media.

When these dominant groups decide to strengthen their collective hold over subordinate social groups (such as workers and/or beneficiaries) and intensify the overall rate of their economic exploitation, they do not hesitate to enlist the aid of society’s core institutions. The Department of Labour will be tasked with seeking out the views of employers – but not of workers. The news media will frame an overt attack on the rights of employees as a benign attempt to get marginalised workers into jobs. Journalists and commentators will vigorously condemn a little harmless pushing and shoving outside the National Party Conference venue, but ignore entirely the much more damaging economic violence inflicted upon working people who have first been stripped of all legal protection and then arbitrarily deprived of their livelihoods.

When class conflict on this scale is unleashed it is vitally important that as many citizens as possible push past the illusions of neutrality, even-handedness and rationality created by our core institutions and find the courage to describe what is actually taking place.

In this regard the lawyer, Max Whitehead, deserves our special commendation. His statement that the extension of the "Fire at Will" legislation to cover all new employees means that "workers have fewer right than murderers under the 90-day trial period" clearly irked the Prime Minister, who described Mr Whitehead’s claim as "ridiculous".

But the employment lawyer’s statement is very far from being ridiculous. In fact, Mr Whitehead’s claim is quite correct.

A citizen accused of murder is entitled to the presumption of innocence and the Crown is required to advance sufficient prima facie evidence of the charge to warrant the accused being sent to trial. If brought before a court the Crown must prove the accused’s guilt beyond reasonable doubt – or set him free.

Workers accused by their employers of not being up to the job, or of being party to an employment relationship that "just isn’t working" have virtually no rights. They are presumed to be guilty of the failings attributed to them by their employers, who are not obliged to advance the smallest piece of evidence for their claims. The dismissed workers are denied access to any kind of impartial tribunal, their employer being, in effect, their prosecutor, judge, jury and executioner.

Mr Whitehead’s stark comparison is disconcerting and alarming precisely because it tears the veils of illusion surrounding the National Government’s defenders to shreds. We find it deeply shocking – almost unbelievable – that working people can be treated in this way because in normal circumstances these veils of illusion shield us from the harsh realities of our class-divided society.

And this, ultimately, may prove to be Mr Key’s most serious blunder. He has allowed us to catch a glimpse of reality, and reality is always deeply, deeply subversive of our masters’ most cherished illusions.


Olwyn said...

Today's news on mining is a classic example of what I was alluding to in my comment on your piece about the arrogant left. It's like, hey educated urban liberal, you don't have to worry your sophisticated little head about those ghastly workers because....we're going to spare your National Parks.

ak said...

...that modern equivalent of the medieval church hierarchy – the corporate news media.

Cracker. That's going straight to the poolroom.

Big mistake from NACT. The Keyster should've stuck to the Goober Pyle act: bad timing for chanelling the Pope.

Yes, we've come a long way from feudalism; the not least advance being an ingrained expectation of rational justification for serious decisions. (the pathetic excuse proffered - "no one complained last time" is risible: how could they. "Look, we cut out their tongues and no one complained")

To legislate that the food can now be snatched from your children's plates for no reason whatsoever and that further, you are not permitted to question that decision is faeces in the face of civilised rationality and our hard-wrought heritage: toss in if you catch a cold you'll have to prove it and unions are banned from the workplace, and the ground is warming.

The seeds of their own destruction are sown in unprecedented (post-ECA) fashion: texting, interweb fillums and emails are the hitherto-unencountered grassroot nitrogen bombs that worked with such dazzling success on Mining. The scribes and high priests are bare; cowering under increasing irrelevance.

Man the keyboards and reclaim the temple.

maps said...

Excellently put Chris. I hope this piece is widely circulated.

Madison said...

Yes, your job can be taken away from you ONLY DURING THE FIRST 90 DAYS, and ON:Y IF YOU AGREE TO THIS PROVISION!! Take note that only 16 percent of those employers surveyed used the scheme to fire someone! You claim the research is shoddy and biased but when I had to qualify for Work Visas I usually had to line myself up to match DoL statistics that weren't even researched, they were given to them straight from Union surveys. Biased there much either?

If this was going to damage jobs where were the mass firings we were told to expect, where are the massive abuses? Oh wait, those are still mostly employees using the full wait of the law. Especially since Labour, while not being run by the Unions at that point was still letting 24% of the workers write the employment laws that 100% of us have to deal with. This is an evening of the balance, not a destruction.

Carol said...

Madison, it is evident that for most offered a 90 Day trial contract, they will not get the job if they refuse it. This shifts the power into the employers favour, especially with respect to young people who have no previous work experience.

This is compounded by there being no requirement to explain the reasons for dismissal, advance notice of under-performance that gives the employee a chance to improve, and no possibility to claim unfair dismissal.

Furthermore, this s part of a whole raft of proposed changes, which, though subtle in many instances, all serve to shift the balance of power to the employers: ie in an unbalanced way.

This includes:
Allowing employers and employees to agree to transfer the observance of public holidays to another identified working day.

I gather this also includes the provision for employers to be the ones to decide that a worker must work on a public holiday.

Employers allowed communicating directly with staff during bargaining, including about terms of any settlement offer.

This could intimidate employees, enable abuse of employer power and undermine employer-employee relations.

And there are proposed simplifications to grievance procedures that also look likely to shift the power subtley in favour of employers.

Victor said...

Olwyn and ak

It will certainly be interesting to see whether the type of online campaign waged over mining will have similar success in connection with this latest package.

I have my doubts, as employment law issues (unlike conservation) go to the heart of what divides our political tribes. A tough line with unions can be expected to play superbly with both National's core constituency and its floating voters.

Also, the apparent victory over mining in prime conservation areas may well prove pyrrhic, as the government and mining industry will now claim the green light over mass extraction elsewhere.

If a large dollop of rural Southland ends up looking like the former GDR thanks to unrestricted lignite mining, there will be huge consequences for both the health of New Zealanders and for the "clean green" brand on which our only hope of prosperity is based.

Forest & Bird won't care about this as it's mainly farmland, humans and imported animal species that will be in danger. But the rest of us should.

Meanwhile, there is a genuine issue over how to help and encourage employers (and particularly small companies)to take on new staff during the recession.

I would like to see some suggestions from the unions as to how this could be addressed.

Yes, they are right to oppose the extension of the 90 day rule. But what else can be done?

Madison said...

Thanks Carol for confirming my complaints. People who oppose this hedge their bets with the statements that this COULD be abused. This MIGHT happen and this would be POSSIBLE. What you don't mention is that the system is CURRENTLY being abused at a very high rate by recognised toxic employees, and these worst are the ones the Unions end up protecting and defending the most.

I notice Unions do oppose laws, legislation and justice often, but don't propose too many solutions other than "compulsory" membership (mandatory or forced are now unpopular words) or to keep throwing massive amounts of money at people. We need new options but these rarely if ever appear from the left. I would recommend the PSA push to adopt a report they had commissioned with a think tank that encourages full new thinking and an evolution of the service industry and provides one major bright light. However the Union hasn't figured out how to monopolize this so we don't hear much about it yet.

Carol said...

Well, Madison, I think it's quite appropriate when talking about proposed legislation, especially just after it's been announced, to use words like "could", "might", "possible" - because, guess what? The law hasn't been past yet.

There's is good evidence available that shows developing trust and more co-operative approaches between workers and employees gets better results from workers. And fair employment practices that we have in place work pretty well, though they could be improved.

If you want some relevant research, this report by the Human Rights Commission provides some evidence that some of the National Government's recent proposals are a backward step.

A woman involved in producing the report is interviewed here.

It's an extensive piece of research that shows, for instance that, as you say, most bosses treated employees well, especially in small businesses. But it also showed that most workers are not slackers.

It also provides evidence that treating employees with respect gets better results, rather than intimidating them. And showed why workers should be treated fairly.

Many workers are already afraid to complain about unfair treatment for fear of losing their jobs, such as some immigrant workers. The proposed laws will just make them more fearful and afraid to complain, allowing the minority of bad employers to get away with unfair practices, but also, in the process, disempowering a large number of workers workers. This is counter-productive for NZ business, not to mention for the future of many workers.

Some workers who have been dismissed under the 90 Day Trial period have complained to employee agencies and a small number have talked to the media. They show that dismissing employees without telling them why they are being dismissed or giving them an opportunity to improve (as some employers have done), does not help the worker to improve and undermines their efforts to get a permanent job.

Also, the National Government has produced little/no reliable evidence as to why these changes are necessary. They say it will enable more people to work. The proposed laws are just tinkering around the edges in that respect. The only way to ensure more people become employed, is to provide a large number of jobs. This legislation does nothing to achieve that end.

Madison said...

Yes, I agree that providing more jobs is the real solution to all of this, hopefully where everyone can find a job that bests suits them. But currently while some employers will abuse the system at least as many employees are still abusing the system and there isn't really a way to fix the problem as the laws stand.

Even the EPMU got caught out with a former employee when they made the correct move and got rid of him as quickly as they could even if it was going to violate the laws. To protect the rest of their workers even they had no choice but to violate the law.

I would have expected that someone like them would have known of some way, any way to sort out the problem without coming to that. But when an organization as fully versed and accomplished in dealing with employment law can't find a way to extricate themselves from the problem legally then there is obviously something very wrong that needs to be fixed.

National hasn't proposed a real fix to the problem but they have given many employers a safety valve for when they sense some of those employees. Many can hold on for a few days, but most start to show their true colors before the 3 months. Also, the current probation periods as judged by the employment court make you cover about 2/3 of the normal "fair" process and that alone takes close to 3 1/2 months. That's already out of the probation period so as that legislation is designed it's a failure as well.

There are 2 changes that need to happen. The employment legislation needs to be redesigned with a serious look at real probation periods and the current recognised problem of stress-causing co-workers. Legislation to deal with that weakness would remove a majority of support for the 90-day law. I also think that Parliamentary voting should be readjusted so that there are no forced party votes as currently decide the majority of laws. All the votes need to be 'conscience votes' to have the MPs voting what their constituents want and I would suspect some National MPs dropping support for these laws. However as it currently stands the leaders of the party decide just about everything and the rest of our elected MPs end up following those people in lock-step. That appears to be a very weakened view of democracy.