The good, bad and ugly politics of probations

National rewards its base with a dance it calls the 90-day probationary two-step. But is it good law or just a political sop?

The late and much-admired Texan columnist Molly Ivins published a book about ten years ago called, You got to dance with them what brung you. A long title and very Texan, but it's a political truism that the National-led government has already started to honour.

Helen Clark was often criticised by those on the left for not doing enough for core Labour constituencies. The employment law reforms were slow in coming and, some said, didn't do enough for the unions. Re-instating beneficiary levels was always put off as politically too hard. The Greens were spurned in favour of centrist parties. Clark, ever cautious, tacked to the middle, sometimes spurning those what brung her.

Key also has the air of the cautious manager about him, but by announcing that a 90-day probation law will rushed through under urgency before Christmas and during the new government's honeymoon period, he has adhered to Ivin's dictum. Thanks for the votes and the money, he's saying to business, here's a little two-step by way of reward.

Using urgency for such a controversial bill is poor form, and it's interesting to note that some right-wing commentators who wailed and gnashed when Labour used the power of government to get its way on the Electoral Finance Act and ETS are happy for that power to be mis-used when the shoe's on the other foot. Hypocrisy exposed.

While the process is without doubt ugly, I'm torn on the legislation itself. Let's put aside the government's nonsense that this is somehow a wise response to the financial crisis. It would have been pushed through whatever the economic climate. Most companies aren't expanding or looking to take on the 'hard to hire' ex-prisoners and mothers-returning-to-work that this law is meant to help; they're trying to find a safe place to wait out the storm.

If anything, you could argue that the timing could hardly be worse. Just yesterday I heard from two talented, middle-class, professional friends, one who had been made redundant, one who had been restructured. Even for those who would usually consider their livelihoods safe, a job has become a precious thing, so adding insecurity to already nervous workplaces is counter-productive.

I do, however, sympathise with small employers for whom an extra salary is a significant investment and risk. A CV and an interview is little enough information on which to base a decision that will cost tens of thousands of dollars every year. It's not always easy for small business owners to discipline or fire someone to the letter of the law – legal advice is expensive. What's more, given New Zealand's low unemployment rate and skill shortage, a large proportion of those looking for work are the least-educated and least-experienced in society. That increases the risk to employers.

It's also important to note that National has also amended the bill from Wayne Mapp's private members effort in 2006, removing some of its worst aspects. Labour Minister Kate Wilkinson says there will be no benefit stand-down period for those sacked within 90 days and employers will be banned from firing and re-hiring staff every 90 days to keep them as casuals.

Considering those points, taking three months to test out someone's work standards and skills doesn't seem unreasonable.

Having said that, there are at least as many argument against such a law. For one, a trial period can already be written into an employment agreement under the existing law. It could also dam up the labour market. The dire economic predictions mean employees are already clinging tightly to the jobs they have. Who would risk a new job now, knowing they could be out on their ear after three months for no more reason than a personality clash?

Even more importantly, however, it will make it easier for bad bosses to be bad, especially in low skill workplaces. They can get away with poor recruitment policy, a lack of training and maltreatment – bring 'em in for a few months, then shunt 'em on.

As Labour's Darien Fenton has said, "workers should not be deprived of their economic livelihood easily and frivolously". Yet, to use language John Key can understand, workers are being asked to carry more of the risk under this law.

Perhaps the greatest opportunity for abuse – and the real reason National is giving this as a reward to its base – is that it gives greater power to employers when they're negotiating employment agreements with new workers. If the boss doesn't want to talk about better pay and doesn't want you joining a union, for example, workers will feel the pressure to comply given that boss could turf you out after three months.

Still, no matter how serious or minor this law change may be in practice, you can be sure Labour will fight it tooth and nail. National has won a decent chunk of the working vote in recent years with its 'nanny state' line. Labour MPs only have to look across the House at Paula Bennett, MP for Waitakere and Sam Lotu-liga, MP for Maungakiekie to remember how badly they've got it wrong in the past few years. If it's going to have any chance in 2011, the party needs to take every opportunity to paint National as the bosses' party and convince working class New Zealanders that it is their natural home.