Employment Relations Amendment Bill (No 2), Health and Safety in Employment Amendment Bill (No 2), Human Rights Amendment Bill

I move, That the Employment Relations Amendment Bill (No 2), the Health and Safety in Employment Amendment Bill (No 2), and the Human Rights Amendment Bill be now read a third time. The Employment Relations Bill (No 2) amends the Employment Relations Act, which is by and large working well. How do we know that? Well, the Leader of the Opposition, Don Brash, said so. Having said once that he would repeal, or scrap, the Employment Relations Act—

💬 Darren Hughes: By lunchtime.

—probably by lunchtime. In fact, lunchtime itself will be gone by lunchtime, if one listens to what the National Party is saying. Don Brash is now saying that employers think the Employment Relations Act is a good Act, so National will keep it. Now, what he is concerned about is this legislation, and, of course, it is always one more bill that he is not happy about. But we did say at that time that we would review the Employment Relations Act, and we have. The Employment Relations Bill (No 2) and the other two bills before us are the outcome of that review.

I would like to focus on a couple of issues in response to a some matters that were raised during the Committee stage. The first point concerns “freeloading” or “passing on”. If one is a union the issue is about freeloading—that is, people getting the benefits of bargaining without making any contribution, or, as many of the delegates have said, it is like someone who does not pay his or her taxes and expects to get free health-care. So the unions have most concern about that, and I am hoping the member also agrees with that. On the other hand, for employers it is an issue to do with “passing on”. So it is “freeloading” if one is a union , and “passing on” if one is an employer.

One of the critical things was how we get the relationship right between those who are on collective agreements and those who are on individual contracts. It is important to say, right from the start, that employers are not prevented from providing all their employees with the same terms and conditions of employment, so long as the bargaining has been carried out in good faith. Some of the employers were worried about whether they could have employment contracts people on one rate and individual contracts people on the other. In other words, could they have collectives and individuals on the same rate. The answer is yes. We made it quite clear and specific in the legislation, that one could do that, provided good-faith bargaining occurs. There cannot be anything wrong with that.

The next point is about the bargaining fee arrangement. It is not compulsory. I have heard a number of ridiculous and silly comments made in this House by people who wanted to work themselves into a lather about this, found that it was not what they thought it was, but continued in a lather, all the same. I want to say that the contribution made by Peter Brown on this has been, I think, quite measured on the basis that he considered that these particular provisions were quite reasonable. The bargaining fee arrangement will happen only where there is a willing employer, a willing union, and an acceptance by affected employees. Unions cannot strike over bargaining fees, and they cannot refuse to conclude a collective agreement, just because they want the agreement to include a bargaining fee clause. The legislation is quite clear on that. Even where the employer, the union, and the majority of employees in a secret ballot agree to have bargaining fees, individual employees can still opt out. The bargaining fee provisions give employers, unions, and employees another way to address union concerns about freeloading, extend the benefits of collective bargaining, and still protect the integrity of individual choice. So let us go through the issues again. If people want to have a bargaining fee—

💬 Hon Maurice Williamson: What would it be—100 percent?

It is not specific, but clearly when it comes to a ballot the amount of the bargaining fee would need to be included in the clause on which people are voting.

💬 Hon Maurice Williamson: Do you agree it should be less?

I think the legislation says something like it will not be any greater than that. The point really is that, first of all, the union and the employer have to agree. Peter Brown is quite right when he says that no employer is going to be bullied on this sort of thing. [Interruption] That member does not have the same view of the employers that Peter Brown has, which is what I have. If people do not want to have this, it will not be in it. Firstly, employers and unions have to agree. Secondly, there has to be a ballot of the members who are covered potentially by that particular collective.

💬 Dr Wayne Mapp: In many cases the majority will be unionists.

Yes, that is potentially true. A majority could be unionists and it could expect to go through. So what did the Government do? It says that we cannot have, in this case, the tyranny of the majority. What we do say is that if some people want to opt out, they can. It is just a simple matter of saying: “I don’t like this arrangement; I’m out of here.” I am trying to ask that member what is wrong with that. People who want to get the benefits of the collective—that is, the benefits that people have paid for to get the wages and conditions improved—somehow say that people who do not have to pay anything should make a contribution. What is wrong with that? There is absolutely nothing wrong with that. But we have gone one step further and said that if people do not want to be part of the union, that is fair enough because there is free choice. People do not have to be part of the union and the collective. They can opt out. What is wrong with that? There has been some criticism that it is a bit loose. I say to the House that—

💬 Dr Wayne Mapp: Union mates, I guess.

Well, “Union mates”—this is ridiculous! We think that, by and large, this provision will be used quite rarely. It will be used in places where there is high unionism and where, in fact, a number of employers say they would quite like to have one arrangement. It will be interesting to see how the measure proceeds. It is a very gentle bargaining arrangement. Peter Brown, who has just arrived, says that it is quite reasonable, and I agree with that. It is a shame he could not bring himself to recognise the full benefits of the legislation that the Government proposed, so that he could support it in its entirety. However, I do recognise that he voted for this clause, and I thank him for that.

Another important issue is the test of justification of personal grievance cases. The test now reinforces a fair and reasonable approach. Most people, including Employment Court judges, made good submissions on it. Employers’ actions and how they go about them must reflect what a fair and reasonable employer would have done in the circumstances. So that particular clause was improved by the Transport and Industrial Relations Committee. It has a lot more common sense, and I thank the members of the committee for that.

The Government supports the promotion of best practice so that employers can use the correct procedures with relative ease and avoid costly mistakes. As I stated before, I will be looking at ways to give more guidance to employers and employees around personal grievance issues, especially the procedural requirements for dismissals and disciplinary actions. Irrespective of what legislation we have, there will always be personal grievance arrangements. There were under the Employment Contracts Act. That is just the way of things. At some stage, employers will want to dismiss someone, for whatever reason, and the employee might say that it is not fair. There will always be some dispute.

It is fair to say that, generally speaking, the provisions around all those things, whatever the legislation, are not particularly clear. One of the criticisms I hear from some of the employers is that a lot of people get caught procedurally when in fact it is the substance of the issue that is important.

Finally, I would like to comment on the introduction of protections for the most at-risk employees. In sale, transfer, or contracting-out, a higher level of protection has been given to those employees who have been most vulnerable to restructuring situations in the past. Those employees will have the right to transfer to the new employer on the existing terms and conditions of employment, and are those in the cleaning and food catering industries. To accommodate future change in the labour market and in employment practices, we have built in a clear process for amending the groups of employees who will have a statutory right to transfer in restructuring situations.

Other employees will be given protection though a requirement for their employment agreements to contain a provision that describes what steps the employer will take to protect employees affected by a sale, transfer, or initial contracting-out situation. The details of those provisions will be a matter for agreement between employer and employee.

I acknowledge, firstly, the contribution of the Hon Margaret Wilson to the legislation. Both the Employment Relations Act and the Employment Relations Law Reform Bill reflect her commitment to an employment relations framework based on cooperation rather than confrontation, and I salute her for that. I also thank the members of the Transport and Industrial Relations Committee. I also thank the officials for the work they have done. They got slagged a bit in the Committee stage, and I found that quite reprehensible; I thank them for the huge amount of work they have put into this legislation.

The bills represent another step forward towards building an employment relations framework encompassing fair minimum standards and promoting productive employment relationships. I commend the Employment Relations Amendment Bill (No 2), the Health and Safety in Employment Amendment Bill (No 2), and the Human Rights Amendment Bill to the House.

Eighty percent of all workers in our country—1.7 million New Zealanders—have said no to unions, clearly and emphatically. That is what they said. When people have had a clear choice they have left unions in droves, and have never returned. There is one reason only for this bill, and that is to boost union power and membership. This is Labour’s debt repayment to the unions. It is the price it paid for the support of the Council of Trade Unions. There is nothing in these bills to promote productivity or workplace harmony, but there is everything in them to promote unions, to boost their power, and to deny choice to New Zealanders to choose their own bargaining arrangements. Instead they are forced against their wills into unions in order to have money extracted from their wages and paid to the unions for funding the Labour Party.

I make a prediction tonight that the only parties to vote for the bill will be the Labour Party, the Green Party, and the Māori Party. We have heard a lot of cant from the other side about conspiracies between the Māori Party and other parties in this House, but on these kinds of issues, members know where Labour is looking to. It is looking to the Māori Party and to the Green Party, and that is the shape of the coalition it would put up to the country at the next election. New Zealanders have every reason to be afraid.

This legislation is a return to the bad old days. For 50 years, from 1940 to 1990, we had compulsory unionism in this country. Those were the years of New Zealand’s economic failure. We were consistently below the OECD in our growth rate. We started off in the 1950s with the third-highest living standards in the world. Forty years later, we were twentieth and sliding rapidly. Why did that happen? Frankly, it was due to union power. That is the simple truth. Unions extracted huge monopoly payments in particular areas—the wharfs, the freezing works, the railways. Workforces were grossly inflated, and there was appalling productivity, and feather-bedding all round.

The reality is that even Mr Swain knows the truth of that. Any fair-minded people in this Parliament, across all the parties, would know the truth of that. I can tell members that people actually made the choice to join labouring workforces rather than go to tertiary education. Why did they do that? They did it because it paid more. The price the country paid was lower productivity, and the reality is that our country went backwards.

I have to acknowledge that that turned around, starting, I guess, in 1984. That party will turn the clock backwards. What it is promoting is an effective return to monopoly union power.

We will see multi-employer collective contracts and a constant pattern of strikes. Frankly, we have already seen that happen. One has only to look at the first warning shots, the wharf strike at Ports of Auckland. People came from Australia and from Tauranga with the clear and total objective of getting one national award across all the ports. What followed from that was lower productivity, feather-bedding practices, and strikes at critical times.

Our economy is uniquely vulnerable. We are more dependent on primary-product exports than any other developed country in the world. Everyone knows that to be true. Therefore, strategic strikes paralyse our country. They are intended to extract monopoly pricing, and feather-bedding practices, and this Government delivers precisely that to them. Why does it do that? Because its members are all unionists, including the Minister. That is the truth of it, and this is their pay-off to their old ideological allegiances.

We have six fundamental reservations about the legislation. The first is that the collective contract processes will be used to extract bargaining fees. The Minister will deny that, but the essence of voluntary unionism is such that one has to join the union. Under Labour’s approach, people will now have to pull out of the union. It is a fundamental reversal of the principle of human rights whereby people join the organisations they want to join, and are not dragooned or forced into them, as this legislation will do, and then have to pull themselves out against, no doubt, antagonistic union members.

The second objection is that the legislation promotes collective contracts over individual contracts. Right through the legislation there are a whole series of measures that force employers to sit down with unions in order to negotiate collective contracts. Employers do not have the right to say they object. That is prohibited, to the point of incurring a fine. That leads us to the third fundamental objection. Honest and robust negotiations are likely to lead to fines. Do members know why? Because the union will say that honest and robust negotiations are a breach of good faith.

💬 Hon Maurice Williamson: That’s what they all say.

That is exactly what they will say, and unions will go to the employment authority and effect fines of $10,000. That is a chilling and dangerous precedent to set. No other Western country has that provision in its industrial law. This Government is sending us back to the sorts of practices we would expect to see in Stalinist Russia—the sorts of things, frankly, that I thought we had left behind 15 or 20 years ago.

The fourth fundamental objection is that the authority will now be able to set the terms of employment contracts. The right of free will, and the ability of people to negotiate their bargains, is lost. We are going back to the old practice of national award-setting—of mediation whereby the terms of the deal are not just facilitated but are actually set.

The fifth objection is that the legislation destroys value in businesses. This employment relations legislation can properly be called the “Business Value Destruction Bill”, whose effect will be particularly acute for small businesses in the service sector.

Finally, there is a sixth problem. One would think it extraordinary that after a year of discussion on the issues of the treaty, what does Labour do—a year after Ōrewa? The Government is bringing into employment law the principles of the Treaty of Waitangi. Surely the Minister cannot actually believe in doing that, yet he is precisely promoting it. Maybe he is on instruction from Margaret Wilson, because it is the sort of thing one would expect her to put into legislation. He is pursuing an agenda that is divisive for our country.

💬 Hon Maurice Williamson: “Swainy and the girls” now.

“Swainy and the girls”! I want to say very briefly what National will do. We will stamp out union preferences in legislation. We will fix up the personal grievance procedures. We will give young workers a real opportunity to get employment, with probation periods for 90 days, or thereabouts. Interestingly enough, Mr Tamihere supports that, but his voice is about to disappear from this Government and, I suggest, ultimately from this Parliament. This country is faced with a very clear choice: people can vote for Labour, the Greens, and the Māori Party, and what they will get is union power—more and more of it, over time. The other choice is the choice of freedom, opportunity, and prosperity—that is, to vote National for the freedom of workers, employers, and the people of our country.

After listening to Wayne Mapp, I have to say I expected him to break into something that sounded a bit like “Friends, Romans, countrymen”, or something like that, because it was such a melodramatic performance. Depicting doom, gloom, despondency, and disaster was just a bit over the top and does Mr Mapp no credit, at all.

First of all, I thank the Greens for the role they played as the legislation went through the Transport and Industrial Relations Committee. They worked cooperatively to help improve the legislation, so that it creates a balance for employees and employers. That is the reality of the situation, without the dramatics we just heard from Wayne Mapp. The claims that National is making about these amendments leading towards compulsory unionism are just—

💬 Hon Paul Swain: Old mantra.

JILL PETTIS:—as my colleague Paul Swain said, an old mantra. We have heard it all before, years ago. None of National’s dire predictions came to pass, nor will any of the silly statements it has made during this debate come to pass, either. This is good legislation and it creates a balance for employees and employers. I am very pleased to support it.

Whilst I do not agree with the member who just resumed her seat, I have to say that I thought she took a more rational approach than my honourable colleague of a few moments ago. He was saying that this legislation will give unions strength to the degree that we will go back to the bad old days. I think he was referring to the bad old days of the 1960s, when there was a low crime rate, when we could go outside our houses and leave the doors unlocked, when there was full employment—

💬 Dr Wayne Mapp: No productivity.

—I will come to the issue of productivity—when there was no traffic congestion, and when we were very much an egalitarian society. My honourable colleague said there was no productivity. Let me tell him that even in those good old days of the 1960s, which I think he tried to paint as the dark old days, we would handle cargo in the Port of Tauranga faster and more efficiently than in any Western port in the world.

💬 Dr Wayne Mapp: That is actually not true.

I tell the member that that is true—even in the 1960s, particularly with log and timber-type cargoes that got the port into the realm of being well-known. Things have improved since then in terms of productivity. I have heard the reflection against the watersiders. I am not going to defend the watersiders who have taken a strike in Auckland for whatever they want. They are trying to address the issue of casualisation. I do not know whether they are wrong or right—I have not studied it. But I will tell members that there are no ports in the Western World that can handle cargo faster and more efficiently than—again—the Port of Tauranga. I would suggest that Auckland is not too far behind, but it is behind. Some of our other ports are up with the play, also. We should be proud of our productivity when it comes to ship handling and waterfront handling. No ship comes to New Zealand and gets an inferior service. There is no place in the Western World—or even in the world, I would suggest—that can load ships faster and more efficiently than we can in New Zealand. So let us get a few things in perspective.

This legislation, however, does concern employers, particularly small employers. Large employers will take the attitude that if they do not like the country or do not get a fair go, they will move to Australia or somewhere else. They are no longer at the beck and call of the New Zealand economy. Small employers do not have the same luxury. They will either continue or close, and this sort of bill will make it harder for the small employer to make the positive decision of employing somebody. That is a real concern. But the concern is not because we have unions. Unions, by and large, are just part of society—

💬 Simon Power: Oh, steady!

Unions are part of society.

💬 Dr Wayne Mapp: That might be a fair comment, but what about compulsory unionism?

I am not talking about compulsory unionism. I would not want that any more than I would want people to join New Zealand First on a compulsory basis. But I would not be telling the truth if I did not tell members that New Zealand First believes in collective strength. I am sure the honourable member over there wants to advance his party by getting a few more people in this place. He knows he can achieve that only by getting collective strength in the public arena. Collective strength is a very important facet of political life and industrial life. I do not think we should chastise unions or put a black mark against them because they want to have a stronger power base. That is not to say that we have to agree or roll over. That is not to say anything except that they exist, they are entitled to exist, and they want to strengthen their hand in the industrial environment.

Much has been much made of the bargaining fee arrangement. I say to honourable members that, first and foremost, the employers have to agree to it. They cannot be in breach of good faith if they say no. If employers do not agree with a bargaining agent type of arrangement, then they are not in breach of good faith. I should imagine that most employers, who have a majority of employees who are not in a union, will not agree. I would expect employers with a large union workforce, and who have a few people who do not belong to a union, to think seriously about the bargaining fee arrangement. But I am not expecting employers right across the country to agree to a bargaining fee arrangement. I do not want to insult employers by saying that they will be rolled over a barrel if they do not agree. I cannot accept that for one moment. If that does occur, I will have a good career after I leave this place because there is still a little bit of steel in my backbone.

I am not expecting any major catastrophes as a result of the bargaining fee arrangement. I believe that the moderate unionists who have spoken to me have a case. I know that they have spoken to some of my colleagues. They do the work, they pay the money to set up an arrangement to do the negotiations, and then they see it passed on to all and sundry. It is human nature to have some concern about that. I believe that this arrangement will help them considerably. It will help both the employers and the workforce. As I said, the bargaining fee arrangement is not compulsory for the employer or for the workforce, either. They will vote by secret ballot if they want to proceed, and anybody who still does not want to proceed will have the opportunity and the ability to opt out. It will not be the end of the world. Ideally, unions should not have the monopoly on collective contracts. New Zealanders are not inferior to Australians—

💬 Dr Wayne Mapp: Labour doesn’t believe in that and the member knows it.

I know it does not. I am saying that this is the best option we can get because Labour does not believe in what is the very best option. But New Zealanders are not inferior to Australians. My understanding is that collective contracts are working very, very well in Australia where a group of working people can get together and appoint their own bargaining agent and have a collective contract. We are kidding ourselves if we think that is not occurring here. The members on the Transport and Industrial Relations Committee will remember several submitters telling us about independent collectives or covert collectives, or some such term. In other words, there are many workforces in this country where workers are all paid, effectively, on a collective contract, although it is written into the agreement that they are on individual contracts. New Zealand First says that it is about time we were honest with our own system. We know that the Government is not prepared to officially recognise collectives outside the union movement, so this bargaining fee arrangement has some merit. I believe it will be a short-term solution. I believe that in a few years’ time we will come to our collective senses and say that collective arrangements could be negotiated by whoever wants to employ a bargaining agent. I fail to understand the rationale for blocking that.

💬 Dr Wayne Mapp: You’ll have to have a National Government for that.

I correct the honourable member. There need only be New Zealand First teamed either with National or with Labour, to put a little more sense into the whole thing.

💬 Dr Wayne Mapp: They’re dead.

I do not want to debate coalition arrangements with National—not right now. We will talk to them, maybe, after the next election.

In conclusion, I say to United Future that this is the debate where that party can really talk about the Brethren clause. I felt that the United Future member was a little bit confused during the debate on the Holidays Amendment Bill, but this is the bill where it is appropriate to talk about that clause. I draw the United Future member’s attention to the fact that New Zealand First supported him 100 percent with that clause. I only wish United Future had supported New Zealand First, and my colleagues in National, on the other bill, as we would have got a lot more sense into the Holidays Act.

The Green Party is pleased to see the Employment Relations Amendment Bill (No 2) in the House for its third reading—the original Employment Relations Law Reform Bill having been broken into three constituent bills. The bill’s progress thus far has been something of a long and winding journey and I am glad the legislation will finally see the light of day. Above all, with this bill the Green Party is delighted that at last we see protections in place for some groups of particularly vulnerable workers who risk losing their jobs and built-up entitlements when the business they work for is restructured or sold out from under them. Once this bill is in place, what was known as the transfer of undertakings provision in the original Employment Relations Bill will assist in the protection of cleaners, caterers, caretakers, orderlies, and laundry workers in the State sector and in some parts of the private sector.

I commend the Government for having the fortitude to push through with this, despite the scaremongering from large employers that led Labour to retreat on this provision the first time around in 2000.

The only regret from the Green Party’s perspective is that Labour has not been willing to include caregivers in rest homes in the schedule that covers vulnerable workers. Most people in this country, and MPs in this House, would, I believe, recognise that such caregivers are one of the most hard-working, essential, yet exploited groups of workers in New Zealand. Their wages are often the minimum rate—around $9 or $9.50 an hour. The work they do is essential to the well-being of many of our most disabled elderly, and others, who need the best care and attention possible. Yet we pay these workers a pittance for work that is often physically and mentally demanding in the extreme.

These are also workers whose workplaces are at high risk of being sold because residential care is big business in this country. When rest homes change hands the staff concerned often go through a period of extreme anxiety and distress. Workers are in danger of losing their jobs and all the long-service leave and other entitlements they may have built up. I am sorry the Government did not see fit to support a Green Party amendment that would have seen caregivers in residential homes added to the schedule of vulnerable workers. I just hope they will be the first group to be added to the schedule, as soon as is practicable, through the new process.

The Green Party also put up several other amendments to the bill during the Committee stage. One of these was aimed at strengthening good-faith provisions in cases where there are serious breaches by employers. The second amendment called for the bill to be amended to allow all employees who transfer to a new employer in a “transfer of undertakings” situation, the right to bargain for redundancy entitlements. Neither of these amendments was radical or out of hand. Again, I am sorry that Labour has not seen fit to support them.

I turn to an issue in the original Employment Relations Law Reform Bill, which has now disappeared altogether. Part 2, as it was first drafted, was devoted to amending equal pay legislation. But it was completely inadequate in this day and age because of its refusal to deal with pay equity—that is, equal pay for work of equal value. It was highly ironic that, at a time when the Government had just done a lot of excellent work through the Pay and Employment Equity Taskforce, it should introduce legislation that covered equal pay but left pay equity out. Fortunately, the majority of the Transport and Industrial Relations Committee agreed with the bulk of submitters in this area, and in the end Part 2 was deleted wholesale from the bill.

It is now critical that the Government does not just use this as an excuse to abandon the equal pay and pay equity “ship” altogether, but rather treats as a matter of urgency the need to draft distinct new legislation that builds on all the good work that has already been done in this area. I hope we will see, as the commentary on the bill points out, the development of robust equal pay and pay equity provisions being introduced in the very near future.

With regard to the bill overall as it was returned to the House, the Green Party congratulates the Government on being willing to learn from some of the weaknesses and failings of the original Employment Relations Act. We are pleased to support measures to strengthen collective bargaining, to further define and refine what is meant by good faith, and to tidy up matters in the area of personal grievances, so that this legislation is not such a bonanza for lawyers.

We are also pleased to see some minor moves to take stronger measures against the problem of freeloading, which, sadly, has become endemic in many unionised and semi-unionised workplaces. The Green Party has every sympathy with workers who feel a natural resentment when colleagues doing the same or similar work in the same workplace get all the benefits of collective bargaining that have been hard won by the union, without those colleagues having to pay a cent for the privilege. We have therefore been happy to support moves through this bill to prevent the overt passing on to the collective—when it is done with the intention of undermining the bargaining position of the union—with the introduction of bargaining fee arrangements, when these are freely agreed to between the employer and the union. We believe that unions and employees should have the right to include arrangements within a collective agreement that will allow for non-union members to pay a bargaining fee.

To those on the right who argue that that is a return to compulsory unionism or a replica of the closed shop system in America, I say that that is total nonsense. Those agreements can happen only when both employee and union freely agree, and non-union employees will still have the right to opt out of that arrangement and negotiate directly with their employer on their own behalf. That is neither compulsion nor anything like the closed shop system. In fact, the Green Party would have liked to see much stronger measures taken against freeloading, but we accept that the tightly argued compromise contained in this bill is probably the best that could be achieved in the current climate.

In conclusion, I would just like to note, once again, the way in which even the mildest of industrial relations reform seems to bring out the worst in certain parts of the business community. Although some big-business and employer submitters offered calm, rational submissions, pointing out, as they have every right to do, what they saw as wrong or right with this employment relations bill, others seemed to use this legislation as an opportunity to make the wildest claims about what will happen to the economy if it goes through. Sue Bradford made the point that, having been in Parliament for 2 years, she was starting to get used to fact that some parts of the business world always cry wolf, claiming that even the smallest change to the employment relations framework will result in businesses closing down or going off shore, high unemployment, and an economic disaster in general. That manifestly did not happen as a result of the Employment Relations Act, and I certainly do not believe we will see a host of business closures or an unemployment Armageddon as a result of this bill going through.

What amazed Sue Bradford most of all this time around was the way in which so many employer submitters calmly told the select committee that the Employment Relations Act is working fine and to please not change it—when so many of them had forecast doom and destruction in 2000—especially given that the industrial relations bill is very moderate amending legislation, based in large part on the contribution of working-parties, which included employer representatives.

To finish, I would once again like to thank the Government for sticking to its guns with this bill, and for not caving in to unreasonable demands from some parts of the business community. I fully expect that when the next good industrial relations bill turns up, the business community will be saying how well everything is working with this one, as it turns its sights on the latest supposed atrocity from Labour and the Greens.

I rise on behalf of United Future to speak on this employment relations legislation, which we will not be supporting. It is interesting to think of the many things that we say will happen and the things we say will not happen. It was not that long ago—probably 7, 8, or 9 years ago, or maybe a little bit longer than that—that we were starting to say to people that one of the biggest challenges we were going to face in the days ahead was that we would not have enough hours to work. We were going to have the 35-hour week, then the 30-hour week, and we were beginning to think about what people would do with all that leisure time. I think the people listening tonight will be wondering whether that leisure time is even on the horizon.

Some of the speakers today have said that this legislation is very pro-union legislation, and I tend to agree; it is definitely pro-union legislation. But I would not be able to speak strongly enough to say that I do not agree with having unions. If one says that one does not agree with having unions, then, on the other hand, one has to say that one cannot agree with having an association like an employers’ association. Any association that represents members has to do the very best it can for its members. This is clearly payback time for the unions, and the unions have been trying to get far more out of this legislation.

I do not like the term “good-faith bargaining”. What is good-faith bargaining, and who defines it? I think those are very good questions to ask. My understanding has been that when people get into a dispute, only one group actually has to pay to get a decision, and that group is normally the employers. The dispute will, without fail, end up in some type of employment court, and employers will have to pay to get a result. As a consequence of that fact, employers will often look at the cost of fighting a dispute and decide whether it is better to pay out. I do not like that sort of trend coming into our legislation. Workers, unfortunately, will always receive different rates of pay for different types of jobs. For one thing, there are different profit margins in different things. Therefore we can never get to a situation—unless we go to communism—where everybody gets paid the same amount of money.

We seem to be deregulating everything these days—except that in this legislation we are not deregulating people. We are not giving people the free right to choose. We are finding that forces are coming—whichever way we want to look at it—on to employees to toe a certain line. That is why United Future does not like this. I do not think it is a good thing to have disputes that cost one side more than the other. There is no doubt that this legislation will cost employers more than before, and United Future cannot support that.

There is much in this legislation about employers having to divulge information to employees when changes are coming in a company. I think that is a very challenging situation. There may be changes in a company—changes that an employer or a company owner is aware of—that will affect staff, but it may not be in the best interests of the staff for that information to come out into the public arena too early. Firstly, that could affect the very viability of their jobs, and, secondly, it could mean that the business could degenerate because the employer does not have all the facts together about the proposed changes. Therefore I think employers must always have the ability to keep some information that may be commercially sensitive out of the sight of their employees until they get to a stage when they have some concrete evidence or a concrete process whereby they can go to their employees and say: “This is actually what’s going to happen, and these will be your various options.”

Under this legislation, if one is going to buy a business in some industries one has to take on the staff who work there. That may sound fair enough, but what if those very staff are the reason why the employer is having to sell the business? The poor person who takes it over will be stuck with the same problem, and therefore the business will not be able to progress. I think most business owners today always say that their staff are their strongest asset. Therefore they need to have the ability to make business decisions by weighing up all the factors involved, including the staff.

I have also mentioned that I understand the principle of contributing toward collective agreements, but what if an individual signing an agreement faces costs of his or her own that have arisen out of the process of putting their case to the employer? Will they be able to go the union and ask for a share of that cost? Maybe, because of that individual agreement, the whole of the collective agreement came up a level because that person had been able to convince the employer to pay them a little bit different. I do not think that person would have any chance of getting any contribution towards that cost. United Future will not be supporting this legislation.

I rise for the ACT party to debate, in this third reading, the final stage of the three bills that came out of the employment relations amendment package: the Human Rights Amendment Bill, the Health and Safety in Employment Amendment Bill (No 2), which is a very small one, and the Employment Relations Amendment Bill (No 2).

Listening to debates on labour legislation is always painful because we literally have to listen to fools—people who reason from their intentions and their wishes, but not from the way people actually work and from what actually happens. We have seen an explosion of lawyers in this area. When I started legal practice I do not think that the relations between employers and employees were noticeably any worse than they are now—in fact, relations were possibly better than now—but the notion that any lawyer could make a living out of employment law would have been just unbelievable. There might have been a couple of academics and a few people who practised before the Arbitration Court.

This bill is a guarantee of profits in boarding school fees for generations of lawyers. I think it was Dr Mapp who said that this is a Government that has been so badly burned by the vague statements in law like Te Ture Whenua Maori Act and the treaty principles, yet it would then go and stick into employment relations law—which affects even more people—phrases no less, probably more, stupidly vague and deliberately ambiguous.

💬 Dr Wayne Mapp: Including treaty clauses.

I have just been scanning the legislation. I have not come across it, but if the member can tell me where it is I would like to have a look at it. The equivalent of the treaty clauses is the “good faith” clauses. They sound as vague and silly as the treaty clauses that the Government has been sprinkling into legislation. As has been mentioned, the Government has decided to introduce what is effectively compulsory unionism, at least as far as the workers who object to unions—because they think they are a waste of money—are concerned. The bargaining fee arrangement means the union can have the best of all possible worlds for a lazy, interfering union official. They can get paid by people who do not want to join the union, and they do not have the bother of those people having votes. They can have this arrangement where they might have only 10 percent of the workforce. They can collect the fees, and they do not have to provide any service. It is a perfect outcome.

Of course, the Government probably likes that too, because not having to provide the service means there is more surplus left for these people to devote to their political campaigning. It would allow unions, as the Engineers Union did in the last election, to put up billboards that walk carefully around the electoral law restrictions on election spending. They use money supplied by members—many of whom no doubt would find that they absolutely detest the policies of the Government, particularly in relation to its politically correct areas and treaty law. These people, whether or not they wanted to, funded the Labour Party’s political campaign. The bargaining fee arrangement is plainly a thank you and a promise that enables the union movement to fund more contributions to the Labour Party for the next campaign.

Nobody else in this discussion has addressed the effect of the amendment to the Human Rights Act. The Human Rights Amendment Bill that came out of the select committee process inserts new section 79A in the Human Rights Act. It provides that employees get a choice. Where they have something they can dress up as a human rights complaint, they get a choice of taking it through employment grievance procedures, or to the Human Rights Review Tribunal or to the Human Rights Commission. As far as I can see, the committee did not think that was a very significant change, but employers ought to think about just what that means. The Human Rights Review Tribunal is the body that decided that one of New Zealand’s most vicious criminals deserved $1,200 for his hurt feelings when the prison service omitted to supply him with a copy of a letter from one of his victims, or a letter from the father of one of his victims, complaining about, or setting out, the damage that criminal had done to his daughter.

Taking a complaint to the Human Rights Review Tribunal will now be a choice—one or the other—for an employee under the Act. The employer has no right to object. The employer cannot insist that it go even to the discredited processes of employment law and to that court, that mock court—the Employment Court—which does not apply law but instead applies the political and ideological preferences of the judges of the day as they allocate what they consider to be the right distribution of rewards for business and for enterprise to the people they consider the subject of unequal bargaining power.

To give employees the right to elect to go to the Human Rights Review Tribunal illustrates how unrealistic this Government is. The whole Human Rights Act jurisdiction is inflated by a body that is absolutely determined to turn every possible area of conduct that it can reach, into a matter for judges and lawyers to finally decide. It is a body that does not believe there is anywhere that the law should not touch—that there are things that are just matters of good manners, of ethics, of custom, of morality, that the law should avoid. It is a body that does not understand the wisdom in saying that there cannot be a remedy for every wrong; that for many things it is simply spilt milk—get over it, and go and find a better relationship. Instead, that body, assisted by this part of this bill, can now hold out the false promise to employees of a remedy for every grievance. In this case, harassment—sexual harassment and racial harassment are expressly mentioned—but any ground of complaint under the Human Rights Act, whether fanciful or bogus, can be taken through the Human Rights Review Tribunal process. As I mentioned, that is the body that had such deep wisdom that it thought the hurt feelings of a vicious criminal were worth ordering compensation for.

The employment relations fiddling that we are seeing is characteristic of a Government comprised of people who have never paid anyone out of their own money. This is a bill that is designed—allegedly by “Swainy and the boys”, although I think it was actually “Swainy’s” predecessor, but he has loyally marketed it—to ensure that the unions got a little closer to what they thought they got 4 years ago when the Employment Relations Bill went through. The Minister now, for example, gets a chance to gazette safety courses without having to put them in the Gazette.

These bogus safety issues and courses are a monstrous waste of money. They are another part of the victim culture the Government is encouraging throughout New Zealand, where people do not take responsibility for their own actions or for their own conduct. They always are encouraged to feel that someone, somewhere, is always to blame if there is an accident or a problem. Of course, they are a godsend to a union when safety can be used as a trump card in negotiations where nothing else will do. The union can claim that failure to comply with the detailed requirements of safety is enough to bring a shop out, or to bring down an employer who has been a little bit recalcitrant. The principles of good-faith bargaining do not apply and can be set aside, because who will dare to go against the safety god—that trump card that is so often used when people do not want to argue the merits but, instead, want to bring in an argument that is incontrovertible as far as the PC mob goes. This bill is a bad bill and ACT will be voting against it.

I rise in support of this legislation, and in particular to make a point about freeloading. As a unionist working really hard to get a pay increase, nothing used to annoy me more than people, like members opposite, who spend their time deriding unions and running them down, and running down those of us who belonged to unions and worked very hard for a pay increase. Then, as soon as we had got the pay increase, they would have their hands out to get their share of the increase the rest of us had worked hard for. That was entirely unfair and I think this bill addresses that point very well. I totally support this move.

It is always a pleasure to follow the member for Hamilton East, because she puts so much work into her speeches! She does an enormous amount of work on important issues before the House, and that is reflected in her contribution, which is always incisive and sometimes to the point.

The employment relations law reform legislation is a disgrace. It is legislation that delivers to the trade union movement all the things that the Labour Party could not deliver during the winter of discontent in the year 2000. At about the same time as Mr Tamihere was receiving his cash payout, the Labour Party was delivering, through the winter of discontent, a bill for the trade unions; and, at about the same time as Mr Tamihere got caught, it followed that up with the sequel to this issue. The Labour Party has delivered to the trade unions all the ways they can get the funding that they need to pump back into the Labour Party campaign. That is what the legislation is all about. It is effectively compulsory unionism. It is a levy. Employees who do not belong to a union have to pay a levy to the union if they want the same pay and conditions as union members, and that levy, of course, is a ticket-clicking exercise for the Labour Party to help fund its campaign.

I hope that the trade union movement declares to this House how much money it is putting in the Labour Party coffers, unlike the Waipareira Trust, which put a whole heap of Government money into Mr Tamihere’s campaign that was not declared during the process. I hope that we do not see the same sort of tactics used by the trade union movement with this legislation as we have seen with the Waipareira Trust and Mr Tamihere in relation to Government money.

💬 Hon Maurice Williamson: We will.

The prediction is that we will, and, unfortunately, I am inclined to believe that.

The most insidious part of the legislation is the part that says to workers that if they do not join the union, they cannot get the same terms and conditions as staff who belong to the union. I ask the Greens in particular, as they have supported this measure, but Labour members, as well, how they say to the checkout operator in the supermarket who is a solo mum and is working part time—and whose benefit starts to abate if she earns over $80 a week—that unless she joins the union she will be paid a lower hourly rate. How fair is that? Why is she not able to negotiate her own rate? Good God, we trust her to raise her kids on her own and to do a whole lot of other stuff on her own, but we do not trust her to negotiate her wage.

💬 Mike Ward: She can.

The Greens say that she can. But the employer cannot pay her the same, can they? The Greens will not answer that.

💬 Mike Ward: If she pays the fee she can.

Mike Ward says that if she pays the fee she can get the same. I ask the Greens whether they stand in the organic line at the supermarket and say to the part-time solo mum on the checkout that she will now be up for a union fee otherwise she will get a lower rate than the person in the next aisle. Do they say that? Because that is the effect of it and they know it. They do not say it because they are not straight up enough to do so. Why do they not say that? Why do they not tell the staff what they already know? I say to this House that I fronted in a supermarket staffroom last week, and the question from the butchery department was: “Why would we get different rates of pay for doing the same job just because one of us belonged to a union?”.

💬 Hon Maurice Williamson: How did you answer that?

I said: “Go and ask the Government.” It is no good asking the Greens. They do not eat meat. They do not know where the butchery department is. It is just not fair. The good old Labour Party is saying that it trusts a solo mum to raise her kids but no way will it trust her to negotiate a wage. It is saying: “We do not trust the man in the butchery department to negotiate his own salary and, damn it, if he does, he will be paid a lower rate than someone who is a member of the union. We’re going to write and pass a law of the land that says that if you negotiate your own rate of pay for doing exactly the same job as someone in the union, you are prohibited, by law, from being paid more. The union will put a cap on top of the wage and we will say that you cannot even be paid the same.” Well, how fair is that? It is very fair for the union because it will get a captive group of people who have to belong.

💬 Mike Ward: They don’t have to belong.

They do not have to belong if they want a lower rate of pay. That is right, is it not? The thing about this debate is that the good old socialist argument for collectivism is more important than individuals being trusted to do something for themselves. Goddam that we should ever trust people to do something for themselves. This Government hates that. It says that we must not empower people or trust them. It says that we must not encourage them to do something for themselves and that we must make sure that the union, by law, is given the best rate. Why would members opposite not support it the other way? Why would the Greens not vote the other way? Why would they not vote to say that anyone can negotiate anything, but the union must not negotiate the same as an individual and it has to be less? Why do we not vote for that? What is wrong with that? They do not say anything about that. It is OK for the collective to have the advantage, but, my gosh, we must not give an individual an advantage.

This law is crazy. This law will be breached all over the country, and some poor employers will be fined $10,000 for paying their staff the same rate. I know—and other members, if they are honest, know it as well—that employers have said: “In my workplace everyone will get the same, regardless.” They are going to ignore the law. The Greens have come to Wellington to vote with the Government for a law that will be ignored. Only a few will get picked off by this. Someone who stands up to a bolshie union official will be picked off and fined. At the end of the day, who loses? It is actually the person who is the most vulnerable. It is the young part-timer—or the young and the part-timers. Those people lose because they have to pay a union fee that in many cases is more than any increase they will get. They lose. They have to belong to an organisation they do not believe in. They lose. They have to have money taken from their wages to pay for Labour’s re-election campaign just as money was taken from the Waipareira Trust—from kids’ vaccinations—to pay for John Tamihere’s election campaign. That is where the money came from. It was taken from kids’ vaccinations, from reading programmes, and from welfare programmes—money that was siphoned off for the Labour Party. That is what we are doing here tonight.

After that fairly large speech, which continued to talk about vulnerable employees, I want to express to the House why I happen to support this bill and, in particular, support vulnerable employees. It is all very well talking about butcher shops—about going into the back of them and having those conversations. That actually misleads people. But in this Chamber I would like to comment on the fact that we are reintroducing protections for employees most at risk in the sale, transfer, or contracting out of business situations.

Members are aware of the cleaners who work in our hospitals, who work in this building, and whose jobs get taken out from underneath them. They are replaced, their conditions are made worse, and they work for longer hours or do even more work, just because a business has been sold. This bill gives a higher level of protection to those employees who have been the most vulnerable to restructuring situations in the past. Those employees will have the right to transfer to the new employer on their existing terms and conditions of employment.

So even though we have had those most wonderful speeches from Opposition members going on about the rights of workers, I say that they are the same people who have trampled on cleaners, who have trampled on the most vulnerable workers in this society, and who could not give a hoot as long as they continue to line their pockets. I totally support this bill.

I am absolutely delighted to be able to take a call on this legislation. I want to tease out with this Government what I think is the most central difference between the left and the right in politics. When it comes to labour relations law, the members of the Labour Party, especially those on the Transport and Industrial Relations Committee—who, I repeat, were all members of trade unions—were actively advocating the fact that workers should have a right to organise. OK, that sounds perfectly sensible. I do not have a dispute with that. If workers want to get together and negotiate collectively, as a group, I do not have a problem with that. But the members then went on to say that the only group that can organise and represent any group of workers in a company is a trade union. So one may have a company with 600 staff, 500 of whom are in the union and 80 of whom are not, and those 80 workers say: “Well, look, rather than doing 80 individual contracts, why don’t we get together and negotiate a collective of our own?”. When one raises that with Labour Party members, the answer is: “No, that is absolutely outrageous.”

Hang on! I thought Labour supported the idea of being able to organise collectively. Oh, yes it does, but the only way people can use a collective organisation for their negotiations is to be a member of the union. So the 80 workers cannot get together collectively and appoint an employment law specialist, or an advocate of some sort, and say: “We’ve had a little club together and we’d like you to negotiate on our behalf.” No, the Labour Party says that that is wrong, because those employees are not part of the trade union movement. So it has nothing to do with being able to organise collectively, because if it were, Labour members would not mind a group of X number of employees getting together and negotiating their own deal. Instead, they want those employees to be members of the trade union.

Let us tease that out. Why would Labour members want that? Well, one can see the thinking behind the little deal. My colleague in the front row is doing the twitching of the fingers, and that is what it is about—it is the moolah, the payola. But let me explain even further how that works. The Government is now saying: “Well, all right, you can negotiate collectively if you’re in the union, and get a deal. Those of you who aren’t can’t have the same terms and conditions as those who are.” Now let us imagine the first law case. I want to see a businessman in the dock of the High Court: “The charge against you, sir, is you treated all your workers the same.” The outrage that the public would feel for some evil employer who said—

💬 Hon Member: Would they agree about that?

They will! There will be marching in the streets. These filthy employers—they want to treat their workers the same! That is what the employer will be charged with. The judge will say: “How do you plead, sir? Is it true that the charge the Department of Labour has brought against you is that you want to treat all your workers the same?” That will be the charge. There might be some other questions such as: “Do you pay your taxes, sir?”. “Yes, I do, I pay my taxes.”, the employer will say. “Right, are you a good corporate citizen?”. “Oh, sir, I am, I am, yes.”, will be the reply. But the judge will say: “Right, but the charge still stands. You tried to pay all your workers the same.” What a crime! Yet that is what this bill will do. But, hang on! There will be another round in order to boost the trade union’s coffers, and that is the bargaining fee. So the Labour Government has decided to do the tricky deal. It will say: “No, no, it’s probably a bit harsh to say you can’t all share. You can share the same as everybody else and all be on the same, but you will have to pay a bargaining fee.”

💬 Hon Member: To the union?

Well, that is the first point. Who does the bargaining fee go to?

💬 Hon Roger Sowry: I want to pay mine to the Waipareira Trust.

Good on that member! At least he will know where it is going. So the employee will have to pay a bargaining fee. Now, there are just a few questions here. Who do the employees pay that to? Well, they will have to pay it to the trade union. How much will it be? At the select committee we suggested that we should limit the bargaining fee to quite a small percentage of the union membership fee. I do not think I can live with that concept, but I can live with it more comfortably than I can live with the situation as it is now. If members on the other side are saying that the only thing a trade union does in the whole calendar year is negotiate the wage round, then I have to say that that is completely against everything the trade unions say they are there for. They say they are there for welfare, as benevolent societies, supporting education funds for the kids of the workers, and doing stunning stuff all year round. In fact, I think that some of the unions—and someone could help me with this—especially the teacher unions, negotiate once every 3 years, and the contract lasts for 3 years. So they negotiate—and the negotiations are, say, 3 or 4 weeks’ work—and then 3 years of union fees are paid. They are telling people who are not in the union—and who are not enjoying any of the benefits, or any of the so-called wonderful things I hear people such as Andrew Little say are the benefits of being in the union—that they will pay a bargaining fee that will be the exact same amount as the whole union fee. If members of the Labour Party are saying: “Oh, no, it won’t be that much.”, then why would they not accept amendments that limit the fee to no more than 20 percent or 10 percent of the union fee? Oh no, they will not have that. They have left it at 100 percent.

Let me make that last point clear. The people in the collective—that is, the union members—pay their union membership dues of, maybe, $600 a year to the union. In return for that—if the rhetoric from the trade unions can be believed—they get stunning services, stunning value, and unbelievable quality, and one of the small things that the union does along the way is negotiate terms and conditions. Now the Government has come along with a grubby little thing called the bargaining fee, and if one is not in the union, and one’s boss says: “All I want is to do the same for you as I’ve done for the rest of the workers in the collective.”, he will be able to as long as he says “And, by the way, that’s 600 bucks a year bargaining fee.” The workers will say: “But hang on! This took us 2 minutes.”, and the employer will say: “I know, but the Labour Government has put in place a law that says I now have to extract from you a bargaining fee. It will be 100 percent of what the union dues are, even though those union members supposedly get fantastic other products and services.” The poor old workers will say: “What is this but compulsory unionism by any other name?”. And that is exactly what it is.

It was clear to see what the Government’s agenda was by the presence in the precincts of this Chamber, during the Committee stage, of one Ross Wilson. I do not know whether he is a relation of Margaret Wilson but I am really getting worried. [Interruption] He could be. He could be a very close relative of Margaret Wilson. He is the head of the New Zealand Council of Trade Unions. [Interruption] No, Ross Wilson is not better than this. The member cannot say he is better than this. Ross Wilson is the head of the New Zealand Council of Trade Unions, and one would expect him to have no say in—

💬 Judith Collins: Is there an office out there?

I am told that a room has been set up with Ross Wilson’s name on it, and the phone extension goes through to him, because he had to be right here within the precincts of this House, advising the Minister. In any other political regime that would be seen as direct interference in the political process. If the Business Roundtable had an office in the lobby and was advising a Tory Government, we could imagine the meltdown and the marching in the street. But here was the head of the organisation that will benefit most out of it, and he was not in the gallery—he was here in the precincts of the Chamber, where members are supposed to be, and he was being told he was here only to give the Minister advice. Well, if people believe that, they believe in the tooth fairy and they believe that the Waipareira Trust does things transparently—neither of which I believe.

I have to say that this legislation represents all that the left of the Labour Party has come to believe in. They do not trust employers. They do not trust workers to negotiate their own conditions. They put nebulous definitions like “good faith” into the legislation, and—listen to this—even the Employment Court judges, whom I do not have a great deal of time for, came before the select committee and said that they do not know what “good faith” means. If they do not know, how are we supposed to? It is an outrage.

After that speech made by Maurice Williamson I am flabbergasted, and I cannot understand why he languishes amongst the most lowly back-benchers of the National Party. That was the most talented, able speech the National Party has ever put up—a classic Tory anti-union line. He compares amazingly with the lacklustre, limpish, wimpish front bench National has. Maurice Williamson brought out all the old anti-union bogies possible.

It was the classic right-wing line, which is to attack the union and say the union is not the appropriate thing, and then to put up another organisation led by a bargaining agent. Those are known all over the world, I say to Mr Williamson, as stooge unions, yellow unions, and bogus unions, and it is a classic right-wing tactic to attack workers’ conditions.

It came from a member of the National Government that, when it came into power in 1990, wrote all over the country promising workers it would not attack penalty rates. Let us listen to this. They promised they would not attack penalty rates, and within months the Employment Contracts Act had been brought in and penalty rates were consigned to the dustbin of history. That is what the National Party did.

Its sole object was to do the bidding of the bosses and the Business Roundtable, and to smash workers’ wage rates. Through the 1990s this country’s workers and their families descended into poverty. Not only did the National Party cut penalty rates and wages but it also cut benefits. Let us understand who Maurice Williamson is speaking for. He speaks for the Business Roundtable.

This Government looks after ordinary New Zealanders. We are raising wages and improving the conditions of workers, and doing that at a time when unemployment is falling. So there will be better working conditions and more jobs—something the National Party could never ever provide.

This is fantastic legislation. I want to say that the sooner the National Party promotes Maurice Williamson, the better off it will be.