Fair Pay Agreements Bill

Thank you, Madam Chair. It’s my pleasure to speak on this part, and also in relation to an amendment that I have proposed around clauses 86 and 87. Here, I am proposing to replace “without the employer’s consent” with “with the employer’s consent”. So if we go to clause 86 in the legislation, what we’re talking about here is the ability of union organisers and agreers to come in and to visit workplaces without consent—just rock up and talk to workers. We think it’s not unreasonable for employers—and this is a longstanding issue—to have some ability to give consent to that.

The other broad issue, I suppose, that I want to make in relation to this part and the rules in relation to fair pay agreement (FPA) meetings—and I’m sure the Minister for Workplace Relations and Safety will bat it off and say, “Well, there’s nothing to worry about here.” What you have is that employers will have to pay for workers to attend meetings on the fair pay agreement, and then additional meetings on the fair pay agreement if things need to go through different steps. It’s just, I don’t know, another few hours that employers will have to pay for. I’m sure the Minister will say, “Well, that’s nothing, they’ll just cope with that and swallow that. It’s just a couple of hours away from the workforce. What’s there to worry about?”

The point I would put to him is: does he not recognise that this is not the first imposition the Government has made on businesses large and small, and that every month, this Government passes fresh legislation adding costs and requiring businesses to do this; fill out this information; fill out that; report on this; report on that; give, in the last few months, an extra week of sick leave; give sick leave in different requirements; give bereavement leave in different requirements; have another public holiday every year; etc.—the list goes on.

This bill, this legislation, requires businesses first to engage in a process that they may or may not want to engage with; then it involves them trying to deal with setting up employer agencies and so forth; then it involves them having to have union reps coming in, visiting the workplace; and then it has to involve extra meetings to discuss these things and to consider it all. Again, I remember the Green MP standing up and saying that we were claiming that this is going to be the end of the world and it’s going to destroy businesses. We’re not claiming that; we’re not saying that for a moment.

Dr Duncan Webb: Which clause are you talking about?

Hon PAUL GOLDSMITH: I’m talking about clauses 85, 86, and 87, quite clearly, in relation to the requirements to access workplaces, and clause 84 about entitlement to attend additional FPA meetings. What I’m saying is it’s just another layer of cost, of time, of difficulty that this whole process adds on top of businesses that have got a lot to do as it is at the moment. I’d just like to get some thoughts, I suppose—some observations—from the Minister as to whether he acknowledges that at all. I presume he will argue that the cost is worth it for whatever ideological goals he has in mind, but I’d ask him to consider just that impact on workers. Ultimately, if we want to have sustainably higher incomes, which I think is the purpose that the Minister has in mind for all this, the best way to get higher incomes is to have more productive and more competitive workplaces so that they can thrive as a business. Then the opportunity is there to deliver higher incomes and higher wages.

I’m very happy to briefly respond to the member Paul Goldsmith’s questions there. Part 4, for people familiar with our employment relations framework, will seem very familiar. Most of the clauses in this part relate very clearly and strongly to corresponding clauses in the Employment Relations Act (ERA). In respect of the access provisions, there’s nothing here that’s particularly new or all that different from the access provisions in the Employment Relations Act, so I don’t especially see that there’s really any additional cost compliance or big issues there. It’s just about the basic right that most countries have—and it was accepted, in fact, under the previous Government, under the ERA that they oversaw, for union representatives to be able to speak to workers about activities which are relevant to them. In this particular case, the access provisions in the Fair Pay Agreements Bill simply ensure that the union in question is able to talk with employees who might be covered an FPA about those matters. I don’t see that as being in any way particularly inconsistent, new, or burdensome over and above the general access requirements that are in place.

Now, in respect of the union meetings that are in here, I do accept that to a small degree, there will be some additional cost that is associated with them, but we do need to keep things very strongly in proportion here. I think what we need to remember is that FPAs will have terms of between three and five years. So once every three to five years, when an FPA is negotiating, it will be possible for a union to be able to set up meetings to meet with people who are within the coverage of that FPA to ensure that those workers can genuinely feed in their views and be reported back to on the progress of that process. But for that to happen once every three to five years, I do not think is a significant additional burden on anyone.

Thank you, Madam Chair. That just highlights how disconnected the Minister for Workplace Relations and Safety is with the businesses around New Zealand. Now, we’ve got a set of impositions here that quite clearly make it difficult. They raise a number of concerns that the Minister has just brushed over as though there’s nothing to see here—no concerns to be heard whatsoever. There is nothing in here that gives any consideration to the potential implications of health and safety from a representative coming into the workplace. There’s also nothing that gives consideration to the importance of a particular task being conducted by the employee at the time that may be interrupted by this meeting, and the importance of that within the normal business operations of whatever entity it may be; for example, someone that’s on a farm, maybe they have a particular deadline for picking or milking or harvesting or whatever it may be that fails to be met as a result of an imposition like this discussion taking those employees away from their critical task.

You can look at other distribution businesses—chilled frozen products, for example—where product might be left, having been unloaded off one truck before it gets redistributed for delivery, and that is left sitting there getting damaged or destroyed as a result of the employees being otherwise engaged in a conversation with a union representative who has turned up unannounced and actually doesn’t even have to talk to the employer before they engage with the employees.

So we have, quite clearly, a total disconnect between what the Minister is suggesting—and yes, sure, it’s OK to say we should be able to have access for those discussions, but, actually, business still is happening. This is the key thing that the Minister totally neglects, that we are in an environment here where people are conducting business in some fashion that has certain expectations and requirements around the performance of their employee in that workplace. Some of those may be time-sensitive, and this doesn’t allow for that at all. So it would be nice to think that we could have some greater consideration.

This comes back to the points I made in an earlier part this morning, as well, around the total lack of desire, despite the Minister’s comments that what we’re looking to achieve here is to improve conditions. When you have these sorts of impositions that clearly favour the union representative coming in, with no ability for the employer to have influence over the timing of some of those critical, time-sensitive tasks that may need to be carried out, then it totally undermines that goodwill or good-faith approach that the employer and employee should be taking.

I think that’s the real challenge here is that, ultimately, whilst the intent might be nice—and we see this from the Government time after time—good intent doesn’t necessarily translate into good policy and good outcomes for Kiwis. I think we’ve seen that again here through clause 86 around the access to workplace and the conditions relating to access, where it quite clearly doesn’t allow for those time-sensitive, time-critical tasks that can be a part of a business function, particularly in the food manufacturing space, for example. I’d be interested in why the Minister hasn’t taken account of that.

Once again, I do respectfully encourage all members participating in this debate to read the clauses of the bill that they are commenting on. The member who has just stood up, Tim van de Molen, has said that the bill has no provisions in respect of access to take account of health and safety or normal business operations. I quote clause 87, two on from the one that the member is talking to: “A representative of an employee bargaining party exercising the right to enter a workplace (a) may do so only at reasonable times during any period when any covered employee is employed to work in the workplace; and (b) must do so in a reasonable way, having regard to normal business operations in the workplace; and (c) must comply with any existing reasonable procedures and requirements applying in respect of the workplace that relate to (i) safety or health; or (ii) security.”

Tim van de Molen: Madam Chair, speaking to that—

I call on Erica Stanford.

Tim van de Molen: Point of order, Madam Chair.

It is not a point of order when I, as the Chair, decide to give the call to Erica Stanford.

Tim van de Molen: Correct, but I have taken a point of order, Madam Chair. With the changes that were made to Standing Orders to allow for shorter calls and multiple calls to be taken, it was the intent that questions could be asked and answered to facilitate a better flow of questions. I’ve asked a question, the Minister has responded, and I have a further question off the back of that. Your decision is entirely within your right to make—

And it is up to me. When you actually sought the call before—both of you sought the call—I gave you the first call. I’m now going to Erica Stanford, and then I’ll come back to you. The flow of the questions will still be intact because both of you can ask the questions and then the Minister can answer both them at the same time—Erica Stanford.

Thank you, Madam Chair. I want to go back to clauses 82, 83, and 84 and just elaborate on what my colleague Tim van de Molen was talking about in terms of the health and safety. So under clause 82, it allows the employees who are subject to the fair pay agreement (FPA) to attend meetings. In fact, if you count them all up, there’s two, three, four, five, and then another one in clause 84 that are allowed to be two hours long. I think the point that I want to make around health and safety is not regarding the union reps going into businesses but the taking out of the staff in order to attend these meetings. I want to ask the Minister for Workplace Relations and Safety the question around health and safety of, let’s say, petrol stations, which is, as we all know, highly important in that sort of environment. If there was to be an FPA around gas station attendants and there was a meeting in Auckland for two hours, as I read it in the bill, all of those workers who were subject to the FPA could and probably would attend the meeting. Now, those positions are actually highly trained in terms of emergency response if anything were to happen on the forecourt in such a volatile situation.

So my question around health and safety is: was there any proposal to put in the bill a requirement for the union to hold multiple meetings that the employees could pick from so that we didn’t have a situation where there was, for example, one meeting in Auckland where every single gas station attendant who was subject to this FPA would be required to and would probably want to attend this meeting, leaving no one who was suitably trained, or certainly not enough suitably trained people, to man the forecourts and, in the case of an emergency, would put those businesses and potentially people at risk.

I guess my question, because as I’ve mentioned to the Minister, this could happen not just once but two, three, four, five, maybe six times—and I just wanted to know from the Minister whether or not he would support a Supplementary Order Paper (SOP), if it was to be introduced, that would require the unions, in those cases where health and safety was potentially an issue, to hold multiple meetings so that the workers could attend one of a number of meetings, therefore staggering the employees so that they weren’t all attending a meeting at the same time.

So that was my question around safety, and it certainly wasn’t anything to do with unions entering workplaces; it was to do with the employees leaving the workplace to attend these meetings. I can think of other occupations—ambulance drivers, care workers, anywhere where there is a particular health and safety issue.

Setting that aside, health and safety, of course there are other concerns as well: just normal day-to-day business, and, as we know, we’ve got a workforce crisis which we haven’t seen in 50 years because of our immigration settings—that’s for another day. But it does mean that businesses are under a certain amount of pressure and stress and are already having to close their doors, and to have all of their workers out, potentially, at one time where there wasn’t ability to stagger meetings could seriously impact their business.

So, question to the Minister: was that proposed, does he think it’s an issue, and would he consider an SOP just slightly amending that to allow for staggered meetings?

Coming back to my point I was making before, the Minister for Workplace Relations and Safety can stand up and say, flippantly, “You should read the bill”—words are one thing, but, actually, it’s the interpretation of that that it’s become clear the Minister really doesn’t have his head around. It’s that sort of detail that just shows how uninformed this Minister is when it comes to putting this legislation forward.

He referred to clause 87(1)(c)(i) around the safety and health aspects—“must comply with … existing reasonable procedures and requirements” in relation to the workplace. But how are they to know what those are if they are allowed to enter the workplace without having spoken to any employer, or any representative of the employer, which is allowed for under clause 87(3)—just, you know, they can turn up, if they haven’t made the effort, and they can’t find the employer, a representative of the employer, or a person in control of the workplace. So they can turn up without seeing anyone whatsoever, having no understanding of what those safety and health requirements might be in that workplace, and they can still enter. And this is where it’s clear that the Minister doesn’t understand the complexity of workplaces around New Zealand and the types of examples that could be found.

Ms Stanford’s one was a good example of that, as well, where you’re taking a critical skill out of a critical role that, in and of itself, may not be the union rep breaching that health and safety requirement under clause 87(1)(c)(i), but could have an impact on the overall business operations, and the same applies in any number of construction businesses. For example, if you’re, perhaps, taking a health and safety rep off the floor for discussions and some sort of incident happens during that time—these are the sorts of things that happen in workplaces that it’s clear the Minister doesn’t understand.

And alongside that, as well, was the impact of the timing of those things that he really didn’t address whatsoever. He said, “Oh well, it’s totally fine. There’s no issue around there being time-sensitive aspects because the representative of the employee bargaining party exercising the rights to enter a workplace must do so at reasonable times, and must do so in a reasonable way.” Well, what is reasonable in those circumstances? There’s no definition of that, in this bill, around what constitutes a reasonable time during a period when that employee is working or, indeed, a reasonable way, having regard to normal business operations. Of course, assuming that union rep understands what the normal business operations are—and it’s clear that this Minister doesn’t have a good understanding of normal business operations across a range of sectors. And, of course, that sort of complexity can vary significantly, even within businesses in the same industry. So we really aren’t getting to the nuanced sort of detail we need to properly cater for the requirements that can be found in a workplace.

So I’m interested in why the Minister doesn’t understand that, or whether he has sought any advice on that, whether he will consider amending that to accurately reflect the impact this will be having on those businesses, or whether he simply doesn’t care.

The members opposite are again becoming extremely worried and anxious about provisions in this bill that are almost exact copies of provisions in the Employment Relations Act that they oversaw for nine years while they were in Government. All of the provisions that the member has just referred to, in respect of union access to workplaces, including the reasonableness, are, effectively, word for word from the provisions in the Employment Relations Act.

In the end, people are not idiots. People do not want to create problems in a huge way. These things get managed well between sensible adults who work through employment relationship issues. When it comes to questions of reasonableness and issues being tested around the edges, there is an established jurisprudence which is established if unions or employers want to test out these rights.

But I repeat again that in both respects, union access and all of the wording here in respect of meetings with people, these are copied across, effectively, from the Employment Relations Act and operated without very many issues at all for the entire nine years that the previous National Government was in power. Most of these provisions date back to the year 2000, when the Employment Relations Act was established. Again, I must encourage members to please not just look at a particular clause but to actually look at the surrounding clauses to understand the issues and how the clauses actually connect.

So Erica Stanford asked questions around how union meetings are established. If she went back to clause 81(3)(a) and (b), she would see that they have to be set up with 14 days’ notice, as is the case under the Employment Relations Act. She would also see that there is a requirement for the union setting up those meetings to make arrangements with employers to ensure that their business is maintained. It’s there in black and white, as it is the current Employment Relations Act, which deals with all of the issues that she has raised in that area.

Thank you, Madam Chair, and thank you to the Minister for Workplace Relations and Safety for his invitation for us to do some extra reading on this side of the House. In the spirit of bipartisanship, I might refer him to some reading. He could look at one of my books, actually, on Douglas Myers and the history of Lion Nathan, and look at some of the union practices in the 1980s at Lion Breweries on Khyber Pass for evidence as to whether people behave reasonably. And you might find, indeed, some very interesting practices that were the development of a system, an arrangement, and a plan that was similar to what he is reintroducing.

And you might also read about the history of the building of the Māngere Bridge, for example—which was held up for a decade—and have a look inside the harbour inlet there to see all the concrete that was poured into the harbour because of people being on strike and practices that were dealt with and were part and parcel of the industrial relations framework that we had then, which the Minister seems to look back upon as a golden age.

What I was trying to work out was just—getting clear in my head, and the Minister may well think that I’m not as swift and mentally agile has he claims to be, but let me just work this out. So the point that he makes is he says, “Oh well, look, this is all just what there is in the existing legislation; what’s the problem?” Well, the problem is that this is additional. This is new. This is another set of circumstances—another whole suite of negotiations, conversations, meetings, and people arriving—on top of what we already have. It’s not replacing the current regime; it’s adding to it. So notwithstanding all the things that are currently going on and the union meetings that are already being paid for under the existing regime, he is coming into the House and introducing a new set, an additional set—and more hours, and more meetings.

So you can go along and you attend an initial two “fair pay”—misnamed “fair pay”—agreement meetings. So that’s two hours each; so that’s four hours gone. And then under clause 82(1)(b), if they decide midway through the fair pay agreement—and I’d be interested if he could confirm whether I got this right. So under paragraph (a) you attend two meetings; two hours each. Then, if they decide to propose a variation midway through, which they possibly could—there’d be another two-hour meeting, so that’s three. And then under clause 84, there is the entitlement to another meeting; so another two-hour meeting for the purposes of the fair pay agreement. And then, remember that we may be dealing with multiple fair pay agreements.

And so a business might have to face the possibility that they have a whole bunch of workers, who may spend some of their time as cleaners, for example, and they go through this whole process and they have three meetings, possibly four—I don’t know whether it’s possible to have four meetings under this arrangement—of two hours each. And they go through all of that and have all these visits. And the employer—and again, we think of the small mum and dad operator in Haast who might have two employees; so the two of them have to travel to wherever they have their meeting. They’ve had their three, possibly four meetings because of the cleaning operation.

But then, that goes through, and then next month another fair pay agreement comes along and it turns out that actually—while they’re cleaners a third of their time and they’ve gone through the whole process and they’re in that—actually the next one relates to something else; it may well be hospitality, and so they have to go through the whole thing again. And they go through a number of meetings, and so that’s great.

The Minister says, “Oh, it’s nothing, it’s nothing, it’s nothing! It’s just a few hours, and it’s every three or five years”. Well, I don’t know where he gets that great deal of confidence from, because this is all additional to what we’re already doing. And the point that we’re making is that it’s not the end of the world; people aren’t going to go broke overnight because of this—but it’s another layer of cost that he is adding on to businesses right here and right now.

I move, That the question be now put.

The question is that the Minister’s amendments to Part 4 set out on Supplementary Order Paper 264 be agreed to.

The question is that the Hon Paul Goldsmith’s tabled amendments to clauses 86 and 87 be agreed to.