Employment security and employment protection in the light of the New Zealand Minimum code : including a comparison with German law

Abstract

Generally, the employee is interested in the continuous existence of his or her employment, the provision of fair employment contract conditions and their observance, and respectful treatment concerning his or her activity in the workplace itself. Conversely, the employer is interested in being flexible; it wants to be and to remain in the position to adjust its staff to the economic situation, and to remain in that situation, or react to negative situations which may arise in the employee's sphere respectively, at any time. Consequently, the task of employment security and employment protection is to provide a reasonable balance of both interests. This thesis shall deal with employment security and employment protection in the light of what is termed, informally, the New Zealand 'Minimum Code'. In addition, a comparison is presented with the legal grounds in German law regarding the subjects concerned. The thesis is divided into two main parts: The subject of the first main part is the personal grievance procedure under the New Zealand Employment Contracts Act 1991 and the corresponding German law.

Section 27 (1) of the EC Act 1991 defines the term 'personal grievance'. In short survey, the stated grounds for an employee's complaint are: unjustifiable dismissal; unjustifiable action; discrimination; sexual harassment; and duress. Because of the broad scope of these grounds of complaint, only two of those grounds shall be presented. First, an older one, namely, unjustifiable dismissal, which was already contained in the Industrial Relations Act 1973; and second, a newer one, namely, sexual harassment, which was introduced in the previous Labour Relations Act 1987. Within the following exposition of the selected personal grievances, Division 1 deals with unjustifiable dismissal, and Division 2 with sexual harassment. Great attention shall be paid to the preconditions of the two grounds of complaint. In order to complete the presentation, a short survey shall be given on the right to use the personal grievance procedure. Each division contains three subdivisions. First the exposition of the legal grounds in New Zealand law, and second, as a comparison, the description of the legal grounds in German law. Finally, under subdivision three, a resume shall be given.

Concerning unjustifiable dismissal, the personal grievance procedure under the Employment Contracts Act 1991 grants better employment security for the employee than the common law alternative. Alternative or additional protection is of interest in regard to sexual harassment and will be presented in a short survey. The main emphasis shall lie on the preconditions for the grievance / complaint, rather than on the right to use it. In German law, there is no similar personal grievance procedure. Protection against dismissal is only available under the complaint of unfair dismissal in the courts. As for sexual harassment, the employee must also file a suit to get legal protection. The second part deals with the illustration of some other significant contents of the Minimum Code: parental leave, holidays, and wages. These areas also require legal minimum rights. The code is contained in different Acts of Parliament. That main part is divided in Division 1: parental leave; Division 2: holidays; and Division 3: wages. Each division also contains three subdivisions. New Zealand law is analysed under subdivision 1. The German comparison is presented in subdivision 2. Finally, under subdivision 3, a resume will be given.

In comparison with German law, it is especially notable that parental leave provisions in New Zealand might be improved. As to holidays, in both countries the pertinent Acts are governed reasonably and satisfactorily. Contrary to German law, in New Zealand wages are governed in more detail, but not perfectly. Beyond the presentation of a wide variety of different Acts, the writer's analysis includes constructive criticism, proposals and ideas for reform, and conclusive results.