Employment Relations (Flexible Working Arrangements) Amendment Bill

The purpose clause of the Employment Relations (Flexible Working Arrangements) Amendment Bill gives a bit more meat to the debate than the previous two clauses we have been discussing. As members who have read the bill and understood it will have seen, a significant change has been made in the purpose clause from what was originally quite a narrow group of people who would have been able to qualify. The replacement clause is the new majority clause, and members will note that it is a majority clause because the National Party could not bring itself to support this very sensible proposition.

The clause states: “The purpose of this Act is to insert a new Part 6AA into the principal Act to—(a) provide a statutory right to employees who meet specified criteria as to the period of their employment to request a variation of certain terms and conditions of their working arrangements because they provide care of certain persons; and (b) place certain duties on employers who receive those requests.” How could anybody oppose that? As the author of the bill, Sue Kedgley, said, the clause is very light-handed. It will not bring down the world and it will not bring employers to their knees, as the National Party likes to pretend. The clause provides for the right of employees to request of their employers a variation of certain terms and conditions of their working arrangements.

I was sitting on a select committee the other day and I read some very interesting stuff from Business New Zealand about productivity in this country—the National Party should take note of it. Business New Zealand said that there is a greater need for part-time work and flexible working hours, because they will assist an improvement in productivity.

Where is Dr Lockwood Smith when we need him in this debate? He has been going on and on about improving productivity for so long that I cannot remember when he was not talking about it. We had Business New Zealand in front of the select committee saying that we need to encourage the ability for more workers to have part-time hours and flexible working times. This bill will allow people to request that right from their employers.

💬 Anne Tolley: There is nothing stopping them now.

If there was nothing stopping them—and we heard all about that during the something like 18 months the bill was with the select committee—we would have seen a massive change in employers’ approach to this bill. We offered them the chance by having an adjournment, if you like, on this bill of 1 whole year.

We asked the employers who came along to the select committee and submitted whether they could show us the educational material they gave to their members of the Employers and Manufacturers Association showing them how to go about making a request, because we had worker after worker, and group after group, coming and saying that it was extraordinarily difficult to get that simple request listened to.

The evidence was from professional women and from workers in supermarkets, factories, and the many, many industries that presented themselves, but every one of them said that they had difficulty in getting their employers to consider their requests. They did not want a law change just for the sake of it; they wanted a law change because of their own personal experience.

We had employers saying they wanted to improve productivity in New Zealand by encouraging flexibility of working arrangements, and they asked for a voluntarist approach. We gave them a year and said: “Go ahead and do it. Show us your stuff.”, but unfortunately they just did not bother. They just paid lip-service to the idea. As a result, we have this very light-handed legislation that asks employers in New Zealand to, please, listen to the requests.

💬 Bob Clarkson: Certainly don’t say please!

If it does not suit Bob Clarkson, as an employer, there are seven reasons why he can say no, and legitimately say no. What is wrong with that? I ask what is wrong with that. Employees are given the right to request, and employers are given a whole menu of reasons to say: “For this particular reason, I am sorry but I cannot accede to your request.” And those employers would have obeyed the law. They would have listened to requests from people who, after all, have responsibilities in their family home to look after a child, a sick relative, a disabled person, or an older person in need of care.

💬 Dr Wayne Mapp: And people make those arrangements all the time.

That shows us how heartless National members are. They do not even want to give a worker a right in law to make that request. They say: “Oh, they have a right now.” Well, I ask Dr Mapp how it is that so many people turned up to that select committee and said that that right did not exist in reality. The right might exist in some theoretical legislation that Dr Mapp would dream up, but it ain’t in the reality of the workplace right now.

I want to set out in principle why National is opposed to the Employment Relations (Flexible Working Arrangements) Amendment Bill. In the 21st century everyone recognises that the modern workplace is dynamic and flexible. There are far fewer of the very large organisations run on very, very hierarchical systems, such as existed in the past when we had old-fashioned manufacturing systems that were very process-orientated. That is not the description of the modern world; it is not the description of the contemporary way of running a business. The Labour Party and the Green Party seem to be wedded to a 19th century approach to industrial relations—that the only way these sorts of things can be fixed up is to have legislation. What I have to say to the Government, and what I have to say to Mr Gosche in particular—because he was really telling a fundamental mistruth before when he implied, in short, that employees do not have the right to ask—is that of course employees have the right to ask. People have the right, as human beings, to ask. That is what negotiation is about. You know, it is more or less as if he had said that employees do not have the right to ask for a wage increase. That is, frankly, fatuous, because of course people negotiate. That has been the case for quite some time, and is increasingly the case in the modern, flexible workforce.

In the old days, people felt they had to work for one employer for maybe 20 or 30 years. They felt somewhat locked in. That is not the contemporary experience. People change jobs much more frequently. Employers know that, and they know they have to be competitive when they are negotiating with employees, not just at the time of the initial contract but through the life of the contract. That is why, in truth—and this was heard in the select committee because I was there and the evidence was clear—there are a great range of flexible arrangements freely negotiated between employer and employee. So when National says that we do not need the legislation, we are saying that we do not need a set of rules that essentially end up with court involvement, because if a person makes a request and the employer says that for one of these seven reasons it is not possible, the next step is litigation. That is what we are against.

💬 Sue Kedgley: Mediation.

Well, actually the Employment Relations Authority does not have just a mediation role.

I am not going to get up and say that this bill is going to be the great disaster of all time for the New Zealand workplace. Clearly, people will cope with it. But it will be just one of those extra little points of legislation that crushes productivity in the New Zealand workforce, and that is a crucially important point. One of the most serious challenges that New Zealand faces is declining productivity, and we face it in context with Australia and the United States. Do members know that neither of those jurisdictions have this kind of legislation, and both those jurisdictions are more prosperous than New Zealand? They have more effective working relationships, they have higher incomes, and New Zealanders are choosing to go—in particular, to Australia. One of the fundamental differences why Australia and the United States have fundamentally faster growth rates than European countries—and this legislation is based on a European model—is that they have a lighter-handed regulatory approach to workplace law. That is simply a basic fact. It cannot be contested by members on the other side. They would have to argue against the actual facts and then do something we cannot do in this House, which would be to tell a lie. I presume they do not want to tell a lie, so they essentially avoid the truth and suggest that people cannot ask to have flexible working arrangements. But of course people can ask, and if it does not work out, they will make their own arrangements. Employers know that if they lose someone it might be damn difficult to get someone else, so they are going to be in a dialogue.

The previous speaker was Wayne Mapp, in case someone is listening at the moment. I think the last time Wayne Mapp took an interest in labour relations matters he had a bill before this House that said that any employer could sack any worker for any reason that employer liked, without disclosing the reason why. Could anyone imagine what it would be like for a person in his or her first job to lose that job and not know why? What sort of future would a young person have, finding that he or she was sacked totally unjustifiably and having no one to look after the situation? [Interruption]

The CHAIRPERSON (Ann Hartley): Please be seated. The member will stand, withdraw, and apologise for that remark.

💬 Dr Wayne Mapp: I withdraw and apologise.

The point I am trying to make here is that there are many examples where people want a bit of flexibility, but are nervous of asking for it. If Wayne Mapp was the Minister of Labour, woe betide anyone who asked for flexibility within his or her first 3 months of employment. People who said they wanted flexibility would be down the road. The other thing is that if people waited until the 3 months were past and said they would like some flexibility now, the employers would ask why they did not mention it before, and why they were not able to have a conversation about it right at the start. Of course, Wayne Mapp would not care about that, because at the end of the day people would be able to be sacked for no reason whatsoever. So I do not think Dr Wayne Mapp is very credible on this issue, at all.

I am absolutely appalled that the National Party, on women’s suffrage day, is using the kinds of arguments that, if they had been successful in 1893, would mean we still would not have the vote today. That is the stupidity of the arguments presented by the National Party.

Let us say that those arguments had been used before the Equal Pay Act was passed in 1972. If the current members of the National Party had been responsible for that Act, we would not have had it. They would have been able to stand up in the House and say that any woman had the legal right to ask for equal pay with the men she worked with, and that would have been true—every woman had the legal right to ask for equal pay. Did women have equal pay? Did any of them ask for equal pay? No. Why did they not ask for equal pay? Because the request did not have to be considered at all. So we had to pass a law in this Parliament to bring about equal pay for exactly the same work. There used to be national awards—appropriately named—in this country that had one pay rate for men and one pay rate for women, one for male clerks and one for female clerks. Richard Worth is nodding his head; he remembers the good old days. That is the way they like it over in the National Party—women knowing their place. What a surprise that that has not changed at all over on the National side of the Chamber!

The law had to change in order to bring about a difference. But have we got equal pay today? The law says that we should have equal pay, but have we? There is this stubborn pay gap of 12 percent, and we know that in some areas it is actually far greater. Can anyone on that side of the Chamber explain to me why, 5 years down the track, after qualifying in exactly the same degree, with exactly the same qualification and the same level of degree, women are earning 20 percent less than their male counterparts in the legal profession? Law is one of the classic examples where women are paid, on average, much less overall than men. It is true in the accountancy profession as well. Guess what? These wonderful professions, one of which I am a proud member—I am a lawyer myself—have also managed to develop gender segregation. Certain work within the law firms gets handed out to the women, and certain work within the accountancy firms gets handed out to the women, too.

Tēnā koe, Madam Chair. I have my tiki on, so I would like to speak to the purpose of the Employment Relations (Flexible Working Arrangements) Amendment Bill. Its purpose is really about the family, and the family is a bit more extensive than the bill allows for, so that is what the Māori Party would like to talk about. I see a new parliamentary party that is starting up has said it is going to be the first real voice for the family. That is really interesting, because I think every party has the interests of the family at its heart, deep down. We support the Transport and Industrial Relations Committee’s amendment to extend the coverage of the bill beyond young children under 5 years of age and disabled children up to 18 years of age, and to cover other whānau members, such as partners, parents, grandparents, siblings, and mokopuna.

We are not just saying this; it is part of our culture. You see, we have one word for “auntie” and it is the same word as that for “mum”. Whae, whaea, whaene, kōkā—it is the same word. We have the same word for “cousin” that we have for “brother” and the same word for “cousin” that we have for “sister”. So our sisters are tuahine whether they are our first cousins or our real sisters. And the situation is similar for mokopuna. That is a reality of the way we live. I have several mokopuna who live with me. They are not all my own grandchildren but are my sister’s grandchildren and my grandchildren, and that situation is not covered here. So not only do we support the widening of Minister Dyson’s amendment that extends the provision but we request that consideration be given to the Māori concept of whānau, as well as broadening the provision generally.

In terms of what Dr Mapp said about the bill, we know about the 90-day wonder, and that is the whole point. Sometimes we have to give security and support to people in situations, the work situation in particular, and that is why the bill is necessary. All it does is to give the opportunity for discussion to take place about more flexible arrangements. Accordingly, it has to place some responsibility back on the employer. So the Māori Party at this stage certainly supports this bill.

I would just like to quote from the report Pūao-te-ata-tū, which was provided by an advisory group, the ministerial advisory committee on a Māori perspective for the then Department of Social Welfare, way back in 1988. We all know about John Rangihau, who was the architect of that report: It states: “The Maori child is not to be viewed in isolation, or even as part of nuclear family, but as a member of a wider kin group or hapu community that has traditionally exercised responsibility for the child’s care and placement. The technique, in the Committee’s opinion, must be to reaffirm the hapu bonds”—that is the wider group—“and capitalise on the traditional strengths of the wider group.”

So the customary preference for the children to be maintained within the context of the hapū is something that is of great value to the Māori Party. We are pleased to support the amendment that adds further flexibility to the flexibility already there in the bill. Kia ora.

I am delighted to take a call in relation to this part of the Employment Relations (Flexible Working Arrangements) Amendment Bill. Most people, including those in the National Party, support the concept of flexibility, and we appreciate that quality flexible work is important. We know there is a general consensus that flexible work is important to all New Zealanders, not just to parents and not just to people with caring responsibilities. Quality flexible work is important for individuals, organisations, families, and communities. But flexible working legislation such as this bill is an oxymoron. We support flexibility—of course we do—but employees already have an existing right, under the provisions for good faith in the Employment Relations Act, to ask for flexible working arrangements. This legislation is simply unnecessary. We value flexibility. We know that forward-looking businesses also value employees for the contribution they bring to the business, not just for the hours they work. We value giving people choice about how they work if they deliver the same outputs, because that is good for business. But what we do not agree with is legislation instead of education.

The author of this bill is about to herald to us that the example to follow is the legislation in the United Kingdom. Comparisons, I have to warn members, although sometimes useful, can also be misleading. If we look at the UK report, we see there are significant differences and significant discrepancies. The official departmental report itself referred to methodological inconsistencies in the UK research, stating that the results are not necessarily supported by research, and that there was no accurate pre-legislation baseline of information to measure from. It further advised that the current set of labour market and economic and social conditions in New Zealand did not present a close enough match to any of the countries considered in the analysis for that country’s solution. So it is very dangerous to simply mimic the UK legislation and say it will work in New Zealand.

In fact, if we look at the UK report, we will see some of the cautions in that report. It said that small firms may find it more difficult to accommodate some types of requests than larger firms in similar lines of work. It states: “It is possible that carers who are not covered by the legislation and whose employers do not open flexible working opportunities to other staff may resent employees that are entitled to make a request … This could lead to lower morale amongst these staff in the workplace.” This bill is limited in that respect.

There is a compliance cost to employers. In the UK it has been estimated that on average it will take 2 hours of employee time and 3 hours of management time to process a request that is dealt with formally. At the moment it would take less than half that time to deal with a request informally under the provisions of good faith that already exist in our employment relations legislation. The proposal involves costs to businesses—implementation costs and procedural costs—and we will deal with those. These matters can go as far as the Supreme Court, so it is not a light-handed measure, it is not non-onerous, and there are costs associated with accommodating such requests when they are accepted.

Mr Gosche, who is very, very vocal, talked about productivity. He talked about how flexible working arrangements such as these and strictly legislated flexible working arrangements will improve and enhance productivity. But he himself should read the UK report, which said that overall only 44 percent of firms have experienced a net positive impact on productivity as a result of the flexible working arrangements that have been legislated for there. Fewer than half the firms have experienced a positive impact on productivity.

We have had mention of Suffrage Day; we knew it would come up. It is a day that we do celebrate and one that we certainly should celebrate.

I have listened to the debate thus far with interest. I have listened particularly to the National Party because as far as I can determine it is the only party in this House that is opposing the Employment Relations (Flexible Working Hours) Amendment Bill. ACT, which I thought would be opposing the legislation, is working flexible hours already, so, clearly, that party agrees with it.

Kate Wilkinson made a point. She said that currently all employees have the right to ask for flexible working hours, or something along those lines. That is true. I do not think anybody is arguing that it is not. But she is missing the whole point of the purpose clause. There is an obligation in the purpose clause for the employer to consider that request seriously. That is the whole guts of this bill. The employee can already make a request, but under this bill the employer will have to consider it seriously. I compliment Sue Kedgley on being so amenable and so flexible on this bill. I have tried to work it out, and I think just about every clause has been put under the microscope, and has been either struck out and replaced, or revamped in some way, and Sue has taken it all on board.

That leads me to compliment the Transport and Industrial Relations Committee, of which I was a member, on its determination and dedication to get the bill right. The purpose clause as introduced was totally unacceptable. It was too restrictive concerning whom it applied to—employees caring for children under 5 years and disabled children up to 18 years. It was bureaucratic, insomuch as employers effectively could not refuse to change employees’ working hours, or had very limited reasons for doing so. And it was very limited in whom it would apply to, insomuch as the arrangement had to be permanent, as I understand it. The select committee changed all that, with Sue Kedgley’s agreement, and, dare I say, blessing. That made the purpose clause much more acceptable.

New Zealand First opposed the bill as introduced, but we are big enough, ugly enough, and tough enough to say that the bill before us now has got it right. That is what National members should be doing. They should not sit over there and say that all employers are fair-minded people from the word go. In fact, Wayne Mapp said the reverse. He said that far fewer employers were wedded to 19th century thinking. I think that is what he said, and that implies that some employers would dismiss any informal request from an employee who wanted to look after a person who is ill—dismiss it without any regard at all. That is an admission by Wayne Mapp; I see he is nodding his head. The sole reason we need this bill is that some employers would deny such a request come what may.

This bill is about the right of a person who looks after another person to request flexible working arrangements so that the person can do that. I cannot see anything wrong with that. Some employers have written to me and to my party, implying almost that the world will come to an end if this bill is passed. That is not so. This is very, dare I say it, innocuous legislation. It fits into New Zealanders’ mainstream thinking. New Zealand is a compassionate country. It is a country filled with compassionate people. If there is anything sad about this bill, it is that we have to produce it because some people are not as considerate and compassionate as they perhaps should be. Some people do not value their staff as they should.

It is somewhat hypocritical of the National Party to oppose this bill, because National members work under—

The CHAIRPERSON (Ann Hartley): Would the member please withdraw that comment.

I withdraw the comment. It is somewhat unusual for National members to oppose this bill, because National members, as we all do, work under the Standing Orders of this House. We do not negotiate them; we sit around the table and agree to them. They allow the 48 National members to have 12 members away from the House at any one time, for any reason whatsoever, with no questions asked—unless the whip asks a question. Nobody else in the House can question where those members are. The National Party is allowed to have 12 members away, and their votes still count. I want to prevail upon National members. I know many of them personally. I know Wayne Mapp; he has been here the same length of time as me.

💬 Russell Fairbrother: You have learnt a lot, haven’t you?

I thank the member. I ask the National Party to rethink its position. We are not bringing the world to an end with this bill. We are producing legislation that is fair-minded, in the interests of, firstly, people who are looking after other people, and, secondly, people who are being cared for. We are not making any great imposition on employers. We are giving employers until 1 July 2008 to come to terms with this. I think the National Party should rethink its position. I think this bill should go through this House, supported by everybody here, with perhaps the exception of ACT, which is not present tonight, and Gordon Copeland, who is not present, either. I know I should not say who is present and who is not, but he is giving his vote by proxy. This is very reasonable legislation, and New Zealand First supports it and supports the purpose clause.

In speaking to the purpose clause of this Employment Relations (Flexible Working Hours) Amendment Bill, I say there has been some incredible discussion here tonight, particularly from the Opposition benches. It reminds me why it is really, really important that we have parties in this House that understand the realities of the working lives of many New Zealanders. It is not all wonderful like the honourable Wayne Mapp would have us believe.

As other people have said, this legislation is very, very light-handed stuff. It does not say that workers have a statutory right to demand flexible hours. It does not even say that they have the right to negotiate flexible hours. It says that they have the right to ask, and that the employer must respond. I think Peter Brown made a very good point on the difference between this legislation, and the right under the Employment Relations Act to be responded to with good faith. My question to Opposition members is that if they are saying we have current rights, and if they are objecting to this bill on the basis that a case can, allegedly, go all the way to the Supreme Court, how do they think the current rights under the Employment Relations Act are done?

💬 Kate Wilkinson: Why do we need this?

Well, I would not be hiring Ms Wilkinson as a lawyer, quite frankly. That could end up in the Employment Court, as well.

I thought it was really, really interesting to hear Mr Mapp, and I know he has never got over his 90-day bill—

💬 Russell Fairbrother: Not interesting to hear, Ms Fenton.

Well, no, it was, because—

💬 Russell Fairbrother: Never interesting—

No, because that member does not understand the reality of the world. He really does not. He was saying that everyone has the right to negotiate. Well, that is really nice; people have got the right to ask, and they just have to up and say to the boss they would like a pay increase. Did that member not listen to the people from the Hospitality Association? They came along and said they are a very democratic organisation, and if people want flexible hours and they say no, those people go down the road. That is democracy, and that is how it works for lots and lots of people. The fact is that there is a lot stopping people from asking for flexible working hours at the moment; if there was not, then we would see it much more widespread than it currently is.

The Transport and Industrial Relations Committee was certainly told by many, many people that although some employers were responding, many were not. There is very, very uneven application of work-life balance after 5 or 10 years of talking about it and all the nice things that we hear, and the various awards that employers get for showing that they recognise work-life balance in their employment. But it is often found in the big end of town—it is the lawyers, it is the high-paid workers, and so on. For example, I do not know any cleaners in the country who have been able to ask their employer for flexible working hours and have been granted them. The cleaners in this workplace—Parliament—have to work at night, and if they said to their boss: “Oh well, my husband has to work during the day, so I’d like to do the cleaning during the day.”, do members think that under the current legislation they would have a prayer? I challenge the National members to stay up one night and talk to the cleaners about what life is really like for them, and what it is like working for a contractor. I challenge them.

💬 Sue Moroney: The cleaners don’t deserve having to talk to the National Party.

That is true. I think that the whole purpose and driving force behind this bill is the fact that we are working long hours. Wayne Mapp talked about productivity in Australia and the USA. I point out to him, as I did in my second reading speech, that Australia and the USA actually have working time regulation. They have it, we do not, and that is part of our problem. I certainly said that in my second reading speech, and we need to do something about it. Those countries have working time regulation so that people who work more than 40 hours a week have to be paid overtime. That is even the case for people earning the minimum wage in the UK—if they work more than 40 hours a week they get paid overtime. That does not happen here, and that is why people end up working very, very long hours to make ends meet. They work very long and unsafe hours.

This bill is being welcomed across the board, apart from the National Party. I notice that the New Zealand Nurses Organisation is saying that many of its members in the nursing workforce have extensive family commitments that make working rigid rosters difficult, and that that often deters them from re-entering the nursing profession once they have children. What we hear in this House day after day is whinging from the other side of the House about the lack of professional health workers, and how we cannot attract them, and so on. Here is an opportunity for the National members to show they understand.

Progress reported.

Report adopted.

The House adjourned at 9.55 p.m.