1 00:00:00,080 --> 00:00:03,520 Speaker 1: To the Work from Home Department where mediation between the 2 00:00:03,560 --> 00:00:05,520 Speaker 1: government and the union's has fallen over. So it's off 3 00:00:05,519 --> 00:00:07,680 Speaker 1: to the Employment Relations Authority. So what does the law 4 00:00:07,720 --> 00:00:10,400 Speaker 1: say around about this? Jennifer Mills is an employment law 5 00:00:10,440 --> 00:00:14,360 Speaker 1: specialist in Cheesbag with this as well. Jennifer morning, Good morning, Mike. 6 00:00:14,400 --> 00:00:14,840 Speaker 2: How are you. 7 00:00:15,000 --> 00:00:17,360 Speaker 1: I'm extremely well. I think this has been invented out 8 00:00:17,400 --> 00:00:19,560 Speaker 1: of COVID. Correct me if I'm wrong, And if it has, 9 00:00:19,640 --> 00:00:22,000 Speaker 1: is there any actual well established law around whether you 10 00:00:22,040 --> 00:00:24,040 Speaker 1: can or who makes the rules whether you have to 11 00:00:24,040 --> 00:00:24,520 Speaker 1: follow them? 12 00:00:25,920 --> 00:00:29,760 Speaker 2: Well, it absolutely has had its genesis because of the 13 00:00:29,760 --> 00:00:33,440 Speaker 2: COVID situation, and there was a guidance issued by the 14 00:00:33,479 --> 00:00:37,760 Speaker 2: government in twenty twenty which enabled public sector workers to 15 00:00:37,840 --> 00:00:40,640 Speaker 2: work from home by default. And what we've got here 16 00:00:40,800 --> 00:00:43,960 Speaker 2: is Sir Brian Roche issuing a new guidance which says 17 00:00:44,520 --> 00:00:47,880 Speaker 2: no working from home is not an entitlement. It's got 18 00:00:47,920 --> 00:00:52,240 Speaker 2: to be by contractual agreement between the employee and employer 19 00:00:52,720 --> 00:00:55,840 Speaker 2: and it can only be agreed where performance isn't compromised. 20 00:00:56,600 --> 00:01:01,000 Speaker 2: The PSA is running a novel argument that this is 21 00:01:01,080 --> 00:01:05,839 Speaker 2: discriminatory this guidance, noting that of course Sir Brian Roche 22 00:01:05,840 --> 00:01:08,959 Speaker 2: has very broad powers under the Public Service Act to 23 00:01:09,000 --> 00:01:12,720 Speaker 2: issue this guidance in any event. But the PSA's argument 24 00:01:12,880 --> 00:01:17,560 Speaker 2: is that it is discriminatory and it is inappropriate for 25 00:01:17,600 --> 00:01:21,199 Speaker 2: the government to restrict flexible working practices in this way. 26 00:01:21,520 --> 00:01:24,640 Speaker 1: But they how can you argue about something that wasn't 27 00:01:24,640 --> 00:01:26,399 Speaker 1: even a thing until it was, and then you're just 28 00:01:26,440 --> 00:01:28,080 Speaker 1: going back to what it was beforehand. 29 00:01:29,280 --> 00:01:32,759 Speaker 2: I understand that it's a good question, Mike. I understand 30 00:01:32,800 --> 00:01:35,800 Speaker 2: that the PSA are relying on the fact that there 31 00:01:35,880 --> 00:01:39,319 Speaker 2: is this new guidance and that this guidance is somehow 32 00:01:39,360 --> 00:01:44,520 Speaker 2: included in employees' collective agreements. But the argument that there's 33 00:01:44,520 --> 00:01:48,960 Speaker 2: a breach of workers collective agreements will necessarily fail because 34 00:01:49,000 --> 00:01:53,360 Speaker 2: the guidance expressly carves out any employee's express right to 35 00:01:53,400 --> 00:01:55,800 Speaker 2: work from home. So let's put that to one side. 36 00:01:55,880 --> 00:01:59,120 Speaker 2: The rest of the argument is that this new guidance 37 00:01:59,360 --> 00:02:03,040 Speaker 2: is discriminated tree because of the impact it has on women. 38 00:02:03,200 --> 00:02:05,720 Speaker 2: And I can't see a legal basis to run an hour. 39 00:02:05,680 --> 00:02:09,440 Speaker 1: Were they're not running that this is of what a 40 00:02:09,480 --> 00:02:11,720 Speaker 1: pile of well, I mean, I suppose by my union, 41 00:02:11,760 --> 00:02:14,640 Speaker 1: I try anything on can they win? This would they 42 00:02:14,680 --> 00:02:14,960 Speaker 1: win this. 43 00:02:16,360 --> 00:02:19,560 Speaker 2: In my assessment, the authority would not find that the 44 00:02:19,560 --> 00:02:24,560 Speaker 2: PSA's argument or arguments would be successful. I can't see 45 00:02:25,280 --> 00:02:28,600 Speaker 2: a successful argument that women are being treated differently by 46 00:02:28,680 --> 00:02:32,959 Speaker 2: reason of the metal families status, and I can't see 47 00:02:32,960 --> 00:02:36,880 Speaker 2: that it's indirect discrimination. Sure, there is a negative impact 48 00:02:37,080 --> 00:02:41,000 Speaker 2: on women, but the condition can be justified objectively, and 49 00:02:41,040 --> 00:02:44,400 Speaker 2: that's the legal test here. So I cannot see that 50 00:02:44,440 --> 00:02:47,160 Speaker 2: the authority would find in favor of the PSA. 51 00:02:47,560 --> 00:02:49,919 Speaker 1: Good stuff, Jennifer, appreciate your time as always, Jennifer Mills, 52 00:02:49,960 --> 00:02:53,480 Speaker 1: who's with Jennifer Mills and Associates. You notice that it's 53 00:02:53,520 --> 00:02:57,959 Speaker 1: almost like the unions are overreaching on the pay equity law, 54 00:02:58,800 --> 00:03:01,000 Speaker 1: which might lead you to bel lead the pay equity 55 00:03:01,120 --> 00:03:06,280 Speaker 1: law might need changing. For more from the Mic Asking Breakfast, 56 00:03:06,480 --> 00:03:09,840 Speaker 1: listen live to News Talks at B from six am weekdays, 57 00:03:10,040 --> 00:03:12,080 Speaker 1: or follow the podcast on iHeartRadio.