State Sector Amendment Bill (No 3)

The core of this part is section 74AA in clause 4, headed: “Commissioner’s powers when collective agreements are negotiated”. Subsection (1) states: “the commissioner has, for the purpose of those negotiations, all the rights, duties, and powers of an employer under the Employment Relations Act 2000 in respect of those employees.” In simple words that means that all negotiations are done at the behest of the Minister by the State Services Commission with the monopolistic unions, the Post Primary Teachers Association and the New Zealand Educational Institute—the Labour Party’s very good friends and, no doubt, funders thereof as well.

It is all very well for the member from New Zealand First to talk about the past. We ask that member to look forward, because that is what this Parliament is here for—to look at the way things will be done in the future. One of the things I have always said to New Zealand First members is that they have a fond memory of New Zealand prior to 1984. It is as if the last 20-odd years had never happened. They may have a certain appeal to a group of New Zealanders who would live in the past. That is the basic appeal of New Zealand First. That is why its members are so opposed to international trade, the ending of tariffs, and the modernisation of New Zealand’s manufacturing and service industries. They are also opposed to looking forward in the area of education. So all they can do is talk about the period of the 9 long years.

Actually, it is worth recording that the Hon Brian Donnelly was an Associate Minister of Education for two of those years. It is all very well for him to talk about 9 years, while he had responsibility for one-quarter of that period. [Interruption] That is exactly the problem with New Zealand First. Two out of nine equals one-eighth, in the eyes of Mr Mark. Does that not say so much about them?

I want to return to the core point. How do we go forward? We go forward by empowering people. That means boards of trustees. That means teachers. It means basically negotiating at that particular level. That is how we empower people. That is how we deal with modern professional relationships. Why is it so difficult for the Government to get that fundamental point? Can it not see that every private sector employer is able to negotiate with employees? It does not cause trauma. It does not cause drama. People simply get on with the job and do it.

I can tell the Minister that when that change was made in the 1990s—and Dr the Hon Lockwood Smith would have been Minister of Education at that time and promoted that change: the shift from centralised bargaining towards site bargaining at tertiary level; he saw an enormous flowering of diversity and opportunity at the tertiary level. Would it not be wonderful if that could also be achieved at the compulsory education level. We on this side of the Chamber are saying to the Government that a clear choice will be put to New Zealanders. That choice will be: “Do you believe in centralised, old-fashioned, State-controlled answers of the left, or do you believe in empowering people, giving people autonomy, freedom, and the ability to develop real relationships where people work between their real employers, the board of trustees, and the community, and the teachers themselves, breaking the cycle of restrictive unionism that virtually compels people into a union?”. That is the Labour way, but our way is superior.

The Greens have proposed an amendment to the bill, to delete clause 5. This clause sets out the redundancy changes. In our view this clause undermines the collective agreements and is an attempt to alter by legislation collective agreements with the teachers. Currently, when a school closes, a teacher is entitled to take redundancy. If the teacher subsequently gets a job in another school, after he or she has accepted redundancy, the teacher is required to refund an appropriate amount of his or her redundancy. That is perfectly reasonable, and is a process that already exists. But clause 5 takes that option away from teachers. If their school closes and they are offered an equivalent position—a decision about equivalency made by the Minister—they are required to take it, even if their original school has closed.

This is not even an equivalent process to the one for mergers, where there is at least a guarantee of employment for teachers. In the Greens’ view this is an attempt by the Minister to remedy the problems that he will face when he closes schools and builds new, flash, expensive ones, but finds that teachers in those areas are so unhappy with the process around their employment, so unhappy with the school closures, that they choose not to teach at that new school, or in some cases, not to teach at all.

How will the Minister staff these new schools? Will he listen to their calls not to close schools arbitrarily that are vital to the community, and thereby repair the relationships he has damaged? Will he offer better conditions and pay for teachers as a whole, to ensure that they are properly paid for the crucial job they do? No, he will not. What he will do, instead, is change the conditions of their employment, without their agreement, using legislation not bargaining, and strip away their choice of redundancy. The Greens’ amendment will eliminate this inequity in the bill, and we urge all members to support it.

I want to speak relatively briefly to draw the attention of members to the amendments. I have not yet heard anyone refer to the amendments that have been sitting on the Table for some time. There are now three amendments. There is a Supplementary Order Paper in my name. There is a minor amendment to that, and there is also the Greens’ amendment. The only reason for speaking is to draw members’ attention to them so that they do not get a fright later on. I notice that National Party members especially had not quite picked up the fact that the amendments were there.

I want to make just a few comments on this part of the bill. The first is to Dr Wayne Mapp, who has been fairly critical of New Zealand First’s position.

💬 Dr Wayne Mapp: Philosophically.

Philosophically. I say to Dr Wayne Mapp that during the 20 months that New Zealand First was part of the Government, the one thing we did do at least was to get the bulk funding formula right. That was something the National Party could not get right in all those periods of time before that.

There are a few other issues that need commenting upon. The first one is to make note of the—

💬 Gerry Brownlee: Why did you give up?

We gave National the opportunity to be able to—

💬 Gerry Brownlee: Why did you give up?

Because New Zealand First had a coalition agreement with National, and we withdrew from it. We gave National the opportunity to impose bulk funding with a good formula. National had the opportunity to make it compulsory for all schools, and it did not do it during that time. That suggests that National was not committed to it in the first place.

I want to comment on the penalties for not complying, which was the Minister’s original intention. I am glad that provision has been taken out of the bill, because it was draconian. It would have led to boards of trustees being penalised over and above any other non-compliance issues. In the long run it would have impacted upon the quality of education. New Zealand First is very pleased with the part it played in having that provision removed.

I turn to the issue of technical redundancies. The bill as it came into the House was untidy, and it was not really clear which schools it applied to. I will give an example. A number of schools in the Moerewa area are under the network review, but just over the hill is Pakaraka School, which is not within the review. However, it is very possible that the decisions the Minister makes concerning the Moerewa schools could impact upon Pakaraka School. The question is whether that school falls within the compass of this particular legislation.

💬 Hon Trevor Mallard: Not this time, but maybe next time.

OK, but that was one of the issues that had to be tidied up. I think the wording has now been tidied up, but the problem is that when the bill first came in, it was not very clear whether those schools would have been captured or not captured, so we did our job on behalf of the House of Representatives.

But I also say to the Greens that teachers cannot have it both ways. One of the things teacher associations really push for is job protection, and it has always been the case that they would prefer job protection over redundancy packages. There were priority rights schemes in the past, where teachers had access to other jobs in other places and had first priority with regard to those jobs. It has always been the position of the teacher associations to protect jobs first. Whilst redundancy packages have been negotiated, the preference is still to ensure that jobs are offered to teachers as a first priority when it comes to downsizing, merging, closures, or anything else.

So teachers cannot have it both ways where, first of all, there is job protection. In other words, this bill says, first and foremost, that those jobs have to be offered to the teachers who are coming out of the schools, then at the same time the Greens say that if teachers choose not to take the jobs, they should have full access to redundancy packages. I think that is asking too much. It is wanting additions to both sides of the equation.

I think that what we have here is fair. If teachers are offered jobs, they should be required to take them. They should not be able, for example, to collect a redundancy and then pick up a job at Pakaraka, just over the hill, even when they have already been offered a job. It seems in this particular case that the Greens really want the teachers to have it both ways.

However, I want to make another point that no one has raised with regard to this particular matter, and that is the issue of principals. The bill states that when schools are closed, the principal’s job has to be advertised, which is the reverse of what is offered the teachers. There are some very sound reasons for that. In the past, for example, if several small schools were merged, the job had to go to one of the principals. But with the way the Minister was running his network reviews, if several small schools merged with a larger school and the principal of the larger school did not want the job, then one of the smaller ones had to get it, and he or she might not have been experienced enough.

I would like to turn to section 74AB (1), inserted by clause 4, concerning boards of trustees. It has been changed slightly from what originally came to the select committee. When we first got this bill, boards of trustees were totally liable for any financial claims for costs or damages that might arise from the exercise of powers conferred on the commissioner. That has been changed to state that in any claims or proceedings, the board of trustees becomes liable for anything the commissioner does—so if the commissioner makes a decision and does something, the board of trustees is liable for any claims. But the commissioner now must, out of money appropriated for the purpose by Parliament, indemnify the board for those costs or damages.

So far, so good, but we then go on to section 74AB(2), which states the board of trustees may not be indemnified for any costs or damages if the costs or damages have arisen out of conduct that, in the reasonable opinion of the commissioner, is not in good faith, or is engaged in without reasonable care. Here we have a commissioner doing something that places the boards of trustees in a vulnerable situation where they can be liable for costs or damages, but the commissioner then decides whether what has happened has not been done in good faith, or without reasonable care, before taking responsibility for indemnifying them for those costs and damages. That is a totally worthless and meaningless indemnity clause. We might just as well have been honest and stuck to the draconian clause that was there in the first place. At least boards of trustees would have known how vulnerable they are, and how vulnerable they will be, when this legislation is passed.

Why does the Minister not take a call to tell us what his definition of good faith is, or engaging in something without reasonable care? But, of course, it will not be the Minister who decides under this legislation; it will be the State Services Commissioner. Here we have a Minister who is both Minister of Education and Minister of State Services; therefore, he is in a perfect situation to tell the Committee what is meant by this provision, because most sensible people will read it as being totally meaningless. When this legislation is passed, boards of trustees will be extremely vulnerable in terms of costs and damages.

Who will suffer? Where will that budget come from? It will come from the school budget. It will not come from Parliament, because the State Services Commissioner will do everything he or she can to make sure that it does not come from Parliament, and that it comes back to the schools and out of the school budget. Again, learning will be the loser.

We have heard a lot of rhetoric today about the ACT party purportedly supporting the principle that if people go on strike, they should also get paid. If members were listening, they would know that that is not what we have been saying at all. I have consistently said that during strikes many boards of trustees decided not to pay their teachers at all. That is the right we are arguing for. We are arguing for those boards of trustees to retain the right not to pay their teachers, or, if they wish, to pay them in order to keep good relationships going.

This legislation will further damage the relationship between boards of trustees and their employees—the teachers. To all intents and purposes they are the employees; in reality, it is the Minister who employs them, because through the State Services Commissioner they will be told where to go and whether they should be paid. Under this legislation, the decisions that allow those boards of trustees to keep good relationships with their teachers will be taken away from them. They will be put further into a bad situation, and there is no guarantee that strikes will not happen.

Part 2 of the State Sector Amendment Bill (No 3) is really the heart of this legislation. In this part, clause 4 gives the State Services Commissioner all the rights, duties, and powers under the Employment Relations Act during the period of collective agreement negotiations. This is all about big Government, big unions, and forget the children.

If I am wrong in that assertion, why does the Government not provide the opportunity for it to be tested? For schools it owns, for State schools in the State monopoly, the Government will require that the boards of trustees totally abrogate their responsibilities during negotiation of teachers’ pay and conditions—teachers are meant to be the employees of the boards, but we will forget that for the moment. Let us allow that the Government wants to do that. But if that is so right, and if that will produce such good outcomes in terms of rewarding our best teachers as they should be rewarded, and providing the opportunity for poor teachers—and there are plenty of them—to be dismissed under appropriate arrangements, why not give the choice to schools? If the Government is right, why not allow some schools to say that, no, they actually want to negotiate with their own teachers? Why not open things up to absolutely fair competition for ideas? If centralised control, where one size fits all and Big Brother Government controls the lot, and the big teacher union on the other side controls all the teachers, is so good, let it be tested. Let the Government provide real choice for parents by funding children who go to schools the Government does not own in the same manner as it funds children going to schools it does own.

Let us see which way parents choose to go. I would bet with every last dollar I had that we would see parents rushing out the doors of the great State monopoly, into schools where skilled teachers were rewarded, into schools that could employ the best, and into schools that could get rid of teachers who were not performing. That is my challenge to Minister Wilson, who has taken over from the Minister of Education in the chair: if this idea of total centralised control is so good, then the Government should allow choice. If the Government believes that it is such a good model, it should allow real choice. It should fund all children the same. When I say the same, if they are from poor backgrounds, then, OK, fund them more; if their need is greater, fund them more, but let their parents choose which school they go to. That ought to be the test of what is right. If what the Government is doing here is so right, let parents choose. We know, of course, that parents would leave the great State monopoly in their droves under this legislation, if they had real choice.

That is at the heart of this; this big nanny Labour Government thinks it knows best, and treats the public with contempt. We saw it with the foreshore and seabed issue. There was no consultation with the wider public; the only consultation was with iwi. It is such arrogance! The public is saying that it has had a gutsful of it. I say to the Minister in the chair, Margaret Wilson, that if she believes she is so right—she was Minister of Labour—if she believes that this kind of employment arrangement is so right, I accept that she may be right, but she should give parents the chance to decide whether they want this big State control and big union control. If she really believes in education for children, she should give parents the choice.

I had not intended to stand, but I heard a most remarkable speech made by a former Minister of Education who was in that role for 6 years, until 1996. We in education understand the time lag. I heard the worst apology I have heard so far, in my short time in this House, for a former Minister’s inaction and inability to galvanise the education industry into being what it should be. He is concerned about poor teachers—and he made a comment as to how many there were—but he is one of those in this House who is responsible for that very state in the schools.

I recall, and I say from experience, that the actual issue throughout the 1990s, with regard to the issue of the State Services Commissioner today, was no different from the Secretary for Education role. At times the powers have been reversed, but the education of children has always depended upon good teaching, which that former Minister did not provide for adequately in his day. I have a word for the present Minister: it is not being provided for adequately at the present time, either. If we had not had the benefit over the last decade of overseas teachers, the secondary school system in this country would be in a very parlous state.

So it ill behoves that former Minister of Education, who had the direction and the planning of the whole of the education system in his hands, to come here in 2004 and say: “Forget my mistakes, forget the way in which I ran the education system down, and, instead, give free choice’’—supposed free choice—“to those who can afford it.” That is what it is about. I find it appalling, and I find it a shocking indictment on the former Minister that he should, so soon after his administration, be so quick to denigrate the efforts of his department, his officers, and, most of all, the teachers, who for a while had faith in him. I do not want to say anything more. That member was the Minister until 1996, and was superseded by Wyatt Creech.

I want now to turn to Part 2, because that part talks about the powers of the commissioner—the so-called draconian powers that the member talked about—which are no more, as I said a moment ago, than those at times exercised by the Secretary for Education. In the practical realm of paying teachers, that role has sometimes been that of the State Services Commissioner, and at other times it has been that of the Minister of Education, who has delegated his powers to the secretary. So there should not be any great issue made here.

The real issue is that, as a past member of the Post Primary Teachers Association (PPTA)—until the end of 2002—I am quite confident that any member of the PPTA would feel that any teacher who was not on the job did not deserve to be paid. That is all that is envisaged in clause 4. Where a teacher is not on the job, then that teacher has no right to be remunerated at all, if he or she has been suspended appropriately or has been locked out. That is all that the clause says. As a principal, and on behalf of the boards that I worked with, I say that is fair and reasonable. I say again that in 2002 some schools felt they could not do that.

💬 Dr Wayne Mapp: How did you do the job?

I was one of the founding principals of the Secondary Principals Association of New Zealand and an intense believer in the association’s philosophies. But I come back to the point that the actual, practical situation does not much change from what it was yesterday. The bill merely makes certain that those schools that did not take appropriate action in 2002—and I say again that, unfortunately, some boards and some principals did not—would, under the directive envisaged in this clause, have to have regard to the instructions given by the commissioner. In another day, it could have been those of the Secretary for Education. The title does not matter, but the principle is that there is no ability for a member of the PPTA or the New Zealand Educational Institute to be paid for a work day if he or she was absent.

Again, I just wanted to add that little bit of further practical experience to the debate on the bill before the Committee.

I am driven to my feet, on behalf of the ACT party, to speak on this bill that gives the State Services Commission the power essentially to complete its control of negotiations with teachers and take boards of trustees out of the loop. Mr Jim Peters, who has just finished speaking, referred to the prospect that allowing funding to follow the child would end up benefiting only wealthy people. It is a shame that Mr Peters has not looked at the research. That same kind of reasoning would say that if people were allowed to pay for their bread, only rich people would get bread. What we have, in fact, is evidence from wherever it has been tried, that it benefits the poor the best. But my colleague Deborah Coddington will say more on that because it relates very closely to the alternative that should have been in this bill, and is not. We were delighted to hear the Hon Lockwood Smith so vigorously championing the real solution to the problem that Part 2 is trying to address.

I am sorry that the Minister in the chair now is the Hon Margaret Wilson because I really wanted to question the Hon Trevor Mallard, who is in charge of this bill, about clause 4 and the powers given to the commission in that clause. That is because the Minister, I believe, in his own patch of education, is making very, very sure that he is not afflicted with the kind of employment law that Minister Margaret Wilson has tried to push on to the rest of the employers of this country.

The rest of the employers in this country have very serious problems with the so-called good-faith obligation. The employer must foster good faith directly with the employee or with the employee’s agents. Here, of course, the employer is taken right out of the loop. In new section 74AA, inserted by clause 4, the commissioner has all the rights, duties, and powers of an employer under the Employment Relations Act. What possible basis for good faith can that give to boards? I would like to hear the Minister in the chair explain whether the Minister of Education had any consultation with her on this. There could not be a provision that is more directly antagonistic to the theories that the Minister in the chair has been putting into employment law for this country. Here we have a third party—someone who does not have to look the teachers in the eye, someone who does not have the concerns of the classroom, someone who does not have to worry about recruitment, someone who does not have to deal with the problems as an employer—being put in to completely usurp “all the rights, duties, and powers of an employer under the Employment Relations Act 2000 in respect of those employees.”

It may be that coming to this Chamber for the Committee stage of a bill is just a chore for the Minister, and it is possible to sit there and pretend that it does not have anything to do with the Minister. But, in fact, the Committee stage is Parliament’s opportunity to have an explanation. How does this bill fit with the Employment Relations Act? What possible basis of good faith is this bringing to the schools of this country? What possible foundation for good faith can this Government claim in relation to education, when the nominal employer is pushed out of the way, when the State Services Commission has all the rights, duties, and powers of an employer, in the most important negotiation for many teachers—negotiation on their wages and conditions in the collective employment agreement? Does this bill mean, for example, that the board can still communicate directly with its employees without the Minister’s thought police intervening? It does not say. All this bill states is that the board has to communicate with the commissioner. It does not state whether the board can go to teachers to explain the truth, which is: “Don’t blame us. Please don’t hold this against us or our children. In the negotiation, don’t hold the children to ransom. They have nothing to do with this. It’s all to do with the State Services Commission.” What sort of good faith does it show when the State Services Commission is given the power. This must have been a New Zealand First intervention—

I move, That the question be now put.

I want to carry on from Stephen Franks’ speech, because he hit on a very important aspect of this bill. This bill will not correct what it is trying to correct. There is only one way to get this country’s education system out of the hole it has got into with centralised control. As the Hon Lockwood Smith said, it is to let parents choose. It is so interesting that every time this debate is brought up there are people who think that ordinary people cannot choose. It is as if they are reading directly from the script of Yes, Minister, where that very situation was demonstrated in such a comical way.

But let me draw members’ attention to what is happening in America, and this will happen soon in Britain with the Blair Government. The Prime Minister said of Tony Blair, the Prime Minister of Britain: “We are so close, you couldn’t even slip a piece of paper between us.” That is not the case, because the Blair Government has decided to introduce a voucher system to inner city schools for children of poor families, where the schools are failing them. An article in Florida in the United States stated that there is no doubt why Jesse Jackson was in Tallahassee this month, calling Governor Jeb Bush’s policies racist. He and his allies understand all too well that when poor African-American and Latino children start getting the same shot at a decent education as the children of our politicians do, the bankrupt public education empire starts looking like the Berlin Wall.

When the ACT party started talking about parental choice in 1996 it was considered mad. It is so gratifying now to hear the National Party vigorously championing the case for parents being able to choose. If we devolved the funding out to families and they took it to the school of their choice, then we would not have to have legislation like this State Sector Amendment Bill (No 3) that takes what even little power parents have, in the form of boards of trustees, over teachers who are employed and how they are paid, and removes it entirely back to the State Services Commissioner.

This is draconian legislation. It should not be progressing through the House, especially under urgency. It will make life a lot worse for those families whose children are struggling at school. I challenge the New Zealand First member who said that this legislation gives choice only to those who can afford it. Only those who can afford it right now have choice. They can either choose to send their children to a private school if they can afford it, or they can choose to move into a particular school zone if they want to, if they can afford it. It is choice by mortgage capacity. Property values are being driven up by this Labour Government in places like Epsom, Remuera, the Takapuna Grammar School zone, the Mount Roskill zone, and in places in Christchurch. If parents do not like the school that is next door to them, but they cannot afford to buy or rent in those zones, then they do not have any choice.

Tell me how giving those parents the financial equivalent of their child’s education deprives them of choice. It is not logical to deny it. It is absolutely what we should be doing. It is how we should be fixing this situation whereby the Labour Government got rid of bulk funding, stripped it away from those schools that wanted to have it, and then took it back. The Government then realised it had created a bigger problem for itself, so it has had to bring in this legislation that puts all the power for it in the hands of the State Services Commissioner. We will continue to vote against the bill.

I want to take a short call on Part 2 of the State Sector Amendment Bill (No 3). In particular, I refer to new section 77HB, which relates to the appointment of employees following the closure or merger of schools. Although not much has been made of this aspect in the bill, I understand that there is also a Supplementary Order Paper to go with this. The bill deals with the matter of redundancies resulting from school mergers or closures, which is a very topical subject at this time, given the Government’s desire to proceed with some network reviews, and properly, I would imagine, they will continue.

Although each board is still a separate employer, in the case of a merger or a closure an employee may be offered a similar position by another board in the same locality, but without the need to comply with provisions in the Employment Act that require employers to advertise vacancies, and give preference to persons who are best suited to the situation.

I am very sympathetic to teachers, and indeed, all the communities, families and children, who face the prospect of school closures or mergers at the present time. However, I do believe that schools recruiting teachers should have the merit of their applicants uppermost in their minds. In the case of a merger, a teacher who has experience with one of the former schools might well be viewed as the best qualified, but on a merit basis, may not be.

If alternative employment is offered, then there is no entitlement to redundancy compensation, but the select committee recommended that that be clarified so that, among other things, employment offered in another school refers to the replacement school, or another school affected by the merger or closure. As a select committee we felt that this addition, correction, and modification to this bill would add value to all occasions where mergers and closures would take place, not only now but in the future. I just want to add this as part of our contribution from United Future.

The question was put that the following amendment in the name of Metiria Turei to clause 5 be agreed to:

to omit this clause.