Final
MANT 346 2016 Semester 1
Employment Relations
It is important that you read this document
closely. It represents the contract between
us for your participation in the course.
What it’s all about: this course covers collective and individual employment
relations and statutory, contractual and common law rights and responsibilities of
employees and employers. There is some focus on the New Zealand context, but
beyond the specifics of New Zealand law, many of the concepts and skills covered
are applicable elsewhere, and we examine concepts, principles, institutions and
processes in a generic and international way.
Part 1 of the course (the first 6 weeks), led by Alan Geare, covers collective
employment relations in general, and interpretation of contractual and statutory
rights and entitlements.
Part 2 of the course, led by Ian McAndrew, covers employee rights and
protections – against unfair dismissal, disadvantage, discrimination, and
harassment – largely based in the common law, and the obligations of employers
in managing those rights.
This is not a labour law course; the subject matter is dealt with from a managerial
perspective, though management has to operate in a manner consistent with law,
and so we will need to be cognizant of at least the broad strokes of NZ and
international employment law. The basic principles of NZ employment law are
also fundamental to employment law in many overseas jurisdictions and to basic
conventions endorsed by the International Labour Organisation, the UN affiliate
concerned with international labour standards.
The objectives of this course are to inform you about employment relations, to
introduce you to the institutions and processes used to interpret and enforce
employment rights and responsibilities, to ensure that you can analyse and deal
with employment rights cases and situations that might arise in your future
careers, both in NZ and overseas, and to dabble a little in the practice of resolving
employment disputes through negotiation, mediation and more formal resolution
procedures. We will also want to be aware of the ‘philosophical underpinnings’ of
labour market regulation: why some interests and governments advocate more
labour market regulation and some others advocate less regulation.
MANT 346 1st Semester 2016
Alan Geare & Ian McAndrew
Staff: Alan Geare
Commerce 8.07
Phone 479 8127
[email protected]
Ian McAndrew
Commerce 8.09
Phones 479-8124 or Mobile: 021-479-808
[email protected]
Lectures: Wednesdays, 3.00 – 4.50 pm; classes will be held each Wednesday
during the semester except for week 5 (the mid-semester break) and week 13 (May
25th). Half day mediation exercises will be scheduled during week 13 as the
culmination of Assignment 3 in lieu of the scheduled class. Participation is
essential to success in this course, so your regular attendance at classes is
expected as a part of your commitment to the course.
All material presented in lectures (& tutorials) is examinable, and you are
expected to be there. If you expect to have other commitments or social
priorities on a Wednesday afternoon, this is not the course for you.
Tutorials
: are scheduled during just six weeks of the semester. They
each run for 1 hour & 50 minutes. Tutorials are an opportunity for scheduled and
more spontaneous discussion of issues and cases. You can expect to be assigned
to make the occasional small presentation, lead issue discussions, advocate on
behalf of positions in relation to cases or issues, or negotiate cases to settlement.
Tutorials run 4:00 – 5:50 on Thursdays and 9:00 – 10:50 on Mondays, and you
will be streamed into one of those tutorial times. All tutorials will be held in
Commerce Room 4.31.
Tutorial sessions are another important part of the course, and again your
regular attendance is expected as a part of your commitment to the course. It
is your responsibility to be aware of the weeks, dates and times tutorials are
scheduled, and to be there on time and prepared to take an active part. If you
prepare for tutorials and actively participate, you will learn and enjoy it. If you
don’t prepare and actively participate, you will be bored to tears, learn nothing,
bore other people, and make no new friends.
In practical terms, employment relations management involves, among other
things, an ability to express yourself, in writing, but also orally. So we need you
to do some talking in classes and especially in tutorials and case exercises. If you
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MANT 346 1st Semester 2016
Alan Geare & Ian McAndrew
are someone who finds that difficult, you should talk to one of us early in the
semester so we can devise some strategies to get you talking (and eventually
talking comfortably) in tutorials.
Readings
: There is no textbook required for this course. Any NZ
employment relations text will broadly cover the material in the first half of the
course. The options are:
Alan Geare, and Fiona Edgar (2007). Employment Relations: New Zealand and
abroad, Otago University Press: Dunedin.
or
Erling Rasmussen (ed.) (2004). Employment Relationships: New Zealand’s E.R.
Act, Auckland University Press: Auckland.
See also: Erling Rasmussen (ed.) (2010). Employment Relationships: Trends and
Issues under the Employment Relations Act. Auckland University Press: Auckland.
All three are available in the library.
Pre-readings have been suggested from the Geare & Edgar text, but so long as you
have read an equivalent piece covering the topic, that is fine.
The negotiation and mediation assignment cases, and supplemental readings and
tutorial cases are available on Blackboard. The cases for Assignments 2 and 3,
and perhaps some other items, will also be made available to you in hard copy.
You are expected to read the assigned materials prior to the class or tutorial for
which they are assigned.
Readings are to supplement lecture materials, and they are all fully examinable.
Case studies assigned as readings for class sessions will be used to illustrate
lecture material; you won’t get full value unless you read the case and think
through the merits of the case, the key issues, and the likely outcome ahead of the
class session. All cases used in the second part of this course are real cases, to
give you an indication of the types of cases and issues you can expect to encounter
when you enter the professional workforce. You will appreciate that people
sometimes behave badly and speak frankly at and about their work. We do not
sanitize the cases. However, names and places have been changed in most cases
to protect both the innocent and the guilty.
For the second part of the course, much of the essential reading in preparation for
class sessions, as well as your key research source for assignments and tutorial
cases, can be found in Westlaw Employment Law Library (formerly Brookers). It
is available on line from any university computer with internet access. Go to the
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MANT 346 1st Semester 2016
Alan Geare & Ian McAndrew
library at http://www.otago.ac.nz/library/index.html Click on “find … Article
databases.” Click on “Law” and the page that comes up will have several versions
of Westlaw. Scroll down and click on Westlaw NZ (Thomson Reuters). On the
next screen, click on the + sign by Legislation and Commentary to expand that
menu, then scroll down and click on Employment Law. The Employment Law
menu will appear on the left of the screen. Most of what we need to read is under
the Employment Relations Act, so click the + to expand that menu and spend a bit
of time exploring there. This database is an essential resource for this course
(and also valuable for related courses and for your employment relations
career) and you should invest a little time in getting familiar with it.
Additional reading
: The distributed readings for the course include
excerpted chapters from three New Zealand books, all of which are worth reading
in full if you have a particular interest in dispute resolution in the employment
field or other areas. These are: Boulle, Jones & Goldblatt, Mediation: Principles,
Process, Practice (Butterworths, 1998; or a 2nd edition published in 2009); Radich
& Franks, Employment Mediation (Thomson Reuters, 2013); and Spiller (editor),
Dispute Resolution in New Zealand (Oxford University Press, 1999).
Rasmussen’s (editor) 2004 and 2010 books of readings called Employment
Relationships are good primers on the employment relationship problems
resolution system in New Zealand.
A short, easy to read guide to resolving matters under the Employment Relations
Act is Dawson, Resolving Employment Relationship Problems (Dunmore, 2002).
Brookers (now “Westlaw”) puts out a more comprehensive legal publication,
Brookers Employment Law Handbook for those who like to get their learning from
a good book rather than a computer. When you are on the computer, though, the
Department of Labour (now part of the Ministry of Business, Innovation &
Employment) website: www.dol.govt.nz/er/ has a great deal of practical
information about the sort of stuff we deal with in this course and, if you dig hard
enough, it also has some useful policy and research reports on various aspects of
employment rights and relations.
The International Labour Organisation is the closest organisation there is to an
international ‘regulator’ of the labour market, although its impact is normative
rather than actually regulatory. The standards that the ILO promotes can be found
at http://www.ilo.org/ilolex/english/convdisp1.htm Just click on the items to the
left of the screen. Europe is the best example of a regional ‘trading bloc’ that
attempts to regulate labour markets in its member nations. The European Social
Charter is the key document, and it can be found at the Council of Europe web
site: http://www.coe.int/T/DGHL/Monitoring/SocialCharter/ We may add some
readings on the international dimension as we proceed through the semester.
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Alan Geare & Ian McAndrew
Blackboard: We expect to use Blackboard fairly extensively for communications
and assignments, making available readings and cases, as well as posting lecture
slides, and you should check there regularly. We will also email to your student
email account on occasion, so please check there regularly too, or forward to your
preferred account.
Assessment: There will be three pieces of internally assessed work and a final
examination. The final examination will be a 2-hour exam accounting for 40
percent of the course grade. You must achieve an overall course mark of 50
percent or better, and a mark of 50 percent or better in the final examination to be
entitled to a passing grade in the course. The three pieces of internal assessment
are as follows:
Assignment 1 (20 percent): On graduating you get a position as a policy analyst
in the Ministry of Business Innovation and Employment. The Minister asks you to
write a paper (which should be in standard essay format) giving your views as to:
a)
the general standard of employment relations in New Zealand today; and
b)
1-3 recommendations to the Minister to improve the general standard.
(Take into account practicality, cost, probability of success etc.).
Justify your answer using logical arguments backed up by support from authorities
from good journals and texts (not blogs), and giving examples where appropriate.
2000 – 2500 words excluding the reference list.
Due date: 3pm Wednesday 13 April, 2016
How to submit:
You will be required to submit a paper copy and an electronic copy of your essay.
a) Submitting your paper copy:
Please post your paper copy into the MANT 346 assignment slot at the
Management Department reception desk (8th floor of the Commerce building) by
3pm, Wednesday 13 April, 2016.
b) Submitting your electronic copy:
The University of Otago reserves the right to use plagiarism detection tools. This
essay will be put through SAFE ASSIGN. SAFE ASSIGN is a programme that
indicates what seems totally original and what may have been “cut and pasted”
from: the internet; published works; and other essays and assignments (from your
class and worldwide).
Choose the Assignment folder on Blackboard and follow the instructions:
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MANT 346 1st Semester 2016
Alan Geare & Ian McAndrew
 If you want to submit one draft version to see the plagiarism analysis
yourself before submitting the final version; please select the Assignment
1 Submission DRAFT item;
 To submit your final assignment, please select the Assignment 1
Submission: FINAL item and follow the instructions.
This must be completed by 3pm Wednesday 13 April, 2016.
Assignment 2 (15 percent): Resolution of an employment rights dispute
through small team negotiation: a case study (Flanagan v Red River Mine) will
be distributed for this assignment following the mid-semester break. In tutorial #3
(April 28 & May 2), you will be assigned to a team of 2 or 3 (or possibly alone)
representing either the employee or employer in this case involving a claim of
unjustified dismissal. Your objective is to negotiate a resolution to the grievance
with a team representing the other party.
The details of the negotiation process – the logistics, ground-rules, timing – are to
be determined by the two teams. Each team is responsible for setting its own
internal rules for decision making, division of workload etc, so as to avoid any
misunderstandings or unpleasantness as the exercise unfolds.
Mediation
assistance is not available for this negotiation exercise.
To successfully complete the assignment, the two teams are to submit a signed
document setting out the agreed terms of settlement at or before 3.05 pm on
Wednesday May 11, 2016. Achieving a settlement is not an absolute requirement
for passing the course, but note that no marks are available for the assignment
unless a settlement document signed by, or on behalf of, all students in the two
teams is presented on or before May 11th.
In addition to the settlement document jointly submitted, each participant is to
individually and separately submit a “negotiation journal” containing (1) a date
and time log of the negotiation meetings with the other party; (2) a one paragraph
summary of the team’s strategic approach to the negotiations; (3) a one paragraph
summary setting out the team’s target and resistance points at the outset of
negotiations; (4) a one paragraph summary of the key meetings, events, or turning
points in the negotiations; (5) an assessment of the final outcome, particularly in
terms of the merits of the case, including a reflection on the team’s handling of the
negotiations process, and on your own role in the negotiations; and (6) an
individual rating on a 0 – 10 scale for each participant in the exercise, including
yourself.
The document containing items (1) through (5) would be unlikely to exceed two
pages. Please provide item (6) on a separate, anonymous sheet, with a comment
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MANT 346 1st Semester 2016
Alan Geare & Ian McAndrew
of 20 words or less explaining each individual evaluation. These peer evaluations
are advisory only, but important.
Your ratings of individuals [item (6)] should be based on, to the best of your
knowledge, the amount of effort put into preparation for the exercise,
conscientiousness in carrying out the exercise, ability to think about and
understand the issues, understanding of tactical considerations, and overall
contribution to a successful outcome. While it may be tempting, it is not at all
helpful, and is in fact unhelpful, to give everyone the same score.
Actual bargaining “skill” as such should not be a major consideration in your
evaluation, and you should keep in mind that different people may have been
assigned different roles in the exercise. DO NOT CONSIDER personality
factors, degree of aggressiveness, or matters of personal taste except as they relate
to the above criteria.
The exercise will be assessed on the basis of the settlement achieved and the
negotiation journal submitted, but informed also by the peer evaluation input.
Your journal must be submitted by 5:00 pm on Monday, May 23, 2016.
Assignment 3 (25 percent): Resolution of an employment rights dispute
through team mediation (Warren Watson v Peninsula Cove Rugby Football
Club Limited) You will be assigned to an advocacy team of 4 or 5 or 6 students
representing either the employee or employer position in this case involving a
claim of unjustified dismissal. Your ultimate objective is to negotiate a resolution
to the dispute with an advocacy team assigned to represent the other party. This is
to occur in a half-day mediation to be scheduled during week 13 of the semester.
In the meanwhile, your team will need to read and thoroughly understand the case,
analyze and evaluate the case on its merits, fully prepare the case for advocacy on
both the facts and the law, and set goals and devise a strategic approach for the
mediation hearing.
Some limited tutorial time will be made available for work on this case, but most
of it will need to be done outside of scheduled tutorials. The exercise will be
assessed on the basis of the team’s work at each step of this process across the
second half of the semester, and on the basis of the settlement achieved in
mediation, but informed also by a peer evaluation process.
It is to be understood and accepted as a condition of taking this course that
this Assignment 3 is intended to conclude with a mediation hearing of the
Peninsula Cove Rugby Club case, and that if the mediation hearing does not result
in a mediated settlement of the case, the teams will be required to prepare for and
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MANT 346 1st Semester 2016
Alan Geare & Ian McAndrew
present the case (subject to agreement being reached in the interim) in a formal
evidentiary hearing (in the nature of an Employment Relations Authority
investigation hearing but ‘on the papers’) to be scheduled prior to the scheduled
final examination.
Please note that the grading for this assignment will be out of a maximum of 25
percentage points only, regardless of whether the case is settled in mediation or
goes to a formal evidentiary hearing. In the event a formal hearing is necessary,
grading will be based on performance in both the mediation phase and the
adjudication phase of the assignment.
The course topics and readings are as follows:
Off to our first MANT 346 lecture
Part 1: Alan Geare
Class 1: Mar2:
Introduction to Employment Relations & Unions (Chs. 1 & 4)
Class 2: Mar9:
Interpretation Skills
(Ch 6)
Class 3: Mar16:
Management in Employment Relations
(Ch. 3)
Tute 1: Mar17&21: Interpretation Skills
Class 4: Mar23:
Bargaining Theory
Wages
(Ch. 7)
(Ch. 11)
Mid-semester break
Class 5: Apr6:
and
Class 6: Apr13:
Issues in Employment Relations:
- Industrial conflict
- Redundancy
- Stress
Tute 2: Apr14&18: Management in Employment Relations
8
(Ch. 10)
(Ch. 14)
MANT 346 1st Semester 2016
Alan Geare & Ian McAndrew
Part 2: Ian McAndrew
Class 7: Apr20:
Employee protection against unjustified action: disadvantage
To be read:
McAndrew, Reformation of labour legislation and the resolution
of employment relationship problems in New Zealand
Brookers, Statutory language and commentary, ERA 2000,
sections ER 101 – 103.05; 103.27 & 103.28; 113 – 115; 122 – 128;
and CL1: Common Law: “Common law duties of employee &
employer”
Class 8: Apr27:
Protection against unjustified action: dismissal
To be read:
Brookers, Statutory language and commentary, ERA 2000,
sections 103.06 – 103.26 & section 120, and Appendix 5,
“Checklist of dismissal procedures”
Case: Angus Allison v Sticky Buns Bakery
Tute 3: Apr28&May2:
Personal grievances: disadvantage
To be read:
Case: Henry Tokona v Harbourside Power Company
Case: Sajan Singh v Northern Health
Class 9: May4:
Assessing, preparing, & negotiating employment rights cases
To be read:
Wade, Don’t waste my time on negotiation and mediation
Cooley & Lubet, Ch 4, Preparing for the arbitration hearing
Chauvel & Spackman, Ch 7, Negotiation
Spiller, Ch 2, Negotiation
To be re-read:
Case: Angus Allison v Sticky Buns Bakery
Tute 4: May 5&9:
Personal grievances: dismissal
To be read:
Case: Mary Ludlow v South Island Merchants Limited
Case: Julie Blake v Brown Corporate Holdings Limited
Case: Mathew Aldrich v Mothers’ Recipes Limited
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MANT 346 1st Semester 2016
Alan Geare & Ian McAndrew
Class 10: May11:
Protection against discrimination & harassment
To be read:
On discrimination: Brookers, Statutory language and commentary,
ERA 2000, sections 104-107, 110-112 and 119, and browse
Brookers, Employment Law: Human Rights (covering the Human
Rights Act 1993, and the Bill of Rights Act 1990)
On harassment: Brookers, Statutory language and commentary,
ERA 2000, sections 108-109 and 116-118
Chemis, Sexual harassment
Tute 5: May12&16: Personal grievances: discrimination & harassment
To be read:
Case: Denise Luchessi v Blooming Beauty Limited
Case: Peter John Harris v Harbourside City Council
Case: Anita Nowak v The Appliance Store
Class 11: May18:
Dispute resolution institutions & processes
To be read:
Brookers, Browse the statutory language and commentary, ERA
2000, Part 10, paying particular attention to the Mediation Service,
the Employment Relations Authority and the Employment Court
Chauvel & Spackman, Ch 6, Mediation & Ch 11, Common
mediation problems
McAndrew, The employment institutions
Boulle, et al., Ch 4, The mediation process
Tute 6: May19&23: Assessing, preparing, & mediating employment rights cases
To be read:
Case for Assignment 3: Warren Watson v Peninsula Cove
Rugby Football Club Limited
Class12: May25:
Mediation exercise scheduled (in lieu of this class session)
Class 13: June1:
Investigation and adjudication advocacy; final course review
To be read:
Cooley & Lubet, Ch 5, Advocacy during the arbitration hearing
[selected excerpts]
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MANT 346 1st Semester 2016
When
Lecture
Week
1:
Lecture 1:
AG
29 Feb
– Mar 4
Wed
Mar 2nd
Week
2:
Lecture 2:
AG
7 – 11
March
Wed
Mar 9th
Week
3:
14 – 18
March
Week
4:
21 -25
March
Week
5:
28 Mar
– 1 Apr
Week
6:
4–8
April
Week
7:
11 – 15
Apr
Lecture 3:
AG
Alan Geare & Ian McAndrew
What it’s all about
Tutorials
Introduction to
Industrial Relations &
Unions
No tutorials
this week
What to do, with whom,
& what’s due when
No tutorials
this week
Interpretation Skills
Management in
Employment Relations
Wed
Mar 16th
Tutorial 1.
Interpretation
Skills
Thurs & Mon
Mar 17 & 21
COM 4.31
Lecture 4:
AG
Wed
Mar 23rd
Bargaining Theory
No tutorials
this week
Wages
Midsemester
break
This week, what you do,
where, and with whom is
entirely up to you.
Lecture 5:
AG
Wed
Apr 6th
Lecture 6:
AG
Issues in Employment
Relations:
Industrial Conflict
Redundancy
Wed
Apr 13th
11
Tutorial 2.
Management in
Employment
Relations
Thurs & Mon
Apr 14 & 18
COM 4.31
MANT 346 1st Semester 2016
When
Lecture
Week
8:
18 – 22
April
Lecture 7:
IMcA
Wed
Apr 20th
What it’s all about
Tutorials
Employee protection
against unjustified
action: disadvantage
Wed
Apr 27th
25 – 29
April
Sorry, no
tutorials this
week
Tutorial #3:
. . . at last!
Lecture 8:
IMcA
Week
9:
Alan Geare & Ian McAndrew
Personal
grievances:
disadvantage
Protection against
unjustified action:
dismissal
Thurs & Mon
28 Apr & 2 May
COM 4.31
What to do, with whom,
& what’s due when
Read the assigned
materials for the lecture.
Read the assigned
materials for the lecture
and read and analyze the
cases for the tutorial; if
assigned, prepare to
advocate on behalf of one
of the parties to the cases.
Tutorial #4:
Week
10:
Lecture 9:
IMcA
2–6
May
Wed
May 4th
Assessing, preparing,
and negotiating
employment rights
cases
Personal
grievances:
dismissal
Thurs & Mon
May 5 & 9
COM 4.31
Week
11:
Lecture 10:
IMcA
9 – 13
May
Wed
May 11th
Protection against
discrimination &
harassment
Tutorial #5:
Personal
grievances:
discrimination
& harassment
Thurs & Mon
May 12 & 16
COM 4.31
12
Read the assigned
materials for the lecture
and read and analyze the
cases for the tutorial; if
assigned, prepare to
advocate on behalf of one
of the parties to the cases.
Read the assigned
materials for the lecture
and read and analyze the
cases for the tutorial.
If assigned, prepare to
advocate on behalf of one
of the parties to the cases.
Agreement for A2 due at
3:00 pm May 11th
MANT 346 1st Semester 2016
When
Lecture
Week
12:
Lecture 11:
IMcA
16 – 20
May
Wed
May 18th
What it’s all about
Dispute resolution
institutions &
processes
Alan Geare & Ian McAndrew
Tutorials
What to do, with whom,
& what’s due when
Tutorial #6:
Read the assigned
materials for the lecture.
Assessing,
preparing &
mediating
employment
rights cases
Thurs & Mon
May 19 & 23
COM 4.31
Week
13:
23 – 27
May
Lecture
12: No
lecture
this week
Instead, we will take
our Assignment 3 case
to mediation for
settlement.
Sorry, no more
tutorials this
semester
Work with your team on
preparation & negotiating
at mediation; tutorials will
be spent in final
preparation for the
mediation
Work with your team on
preparation & negotiating
at mediation.
Journal for A2 due by 5:00
pm Monday May 23rd
Week
14:
Lecture 13:
IMcA
30 May
– 3 Jun
Wed
June 1st
Investigation &
adjudication advocacy
& final course review
13
Read the assigned
materials for the lecture &
prepare any questions you
may have for the course
review.