Employment Relations (Flexible Working Arrangements) Amendment Bill

The Employment Relations (Flexible Working Arrangements) Amendment Bill is something that the National Party has thought long and hard about. It is a piece of legislation that has been brought forward by Sue Kedgley as a member’s bill. It relates to some very important issues that I think everybody in this Chamber will be greatly aware of, and desire to see the best results possible in our work environments and in our community as well. However, the National Party cannot support this bill at this stage. We do have some reservations in regard to the bill, and it was a difficult process for us to go through. We really do appreciate the way that it was put forward by Sue Kedgley and the way that she showed such dedication to the process, but we feel that it was not quite what is needed at this stage for the New Zealand work environment.

Today we are looking at certain clauses of the bill, and in particular new sections 69AA to 69AAJ in new Part 6AA, inserted by clause 6A. They cover the basic requirements of the legislation, such as the employee’s statutory right to make requests, the duties of the employer, and the process for resolving disputes. These are based primarily on the British approach, which Sue Kedgley used as the basis for this legislation. However, in doing that, there were a number of additions that the Green Party put into the bill that I think made it unsatisfactory from our point of view, and it is something that we need to look at again as a political institution at some stage in the future, should this bill not come into force.

One of the key things that I think the Transport and Industrial Relations Committee accepted—and it was very grateful for the submissions made by people who came in—was that there is a genuine need for flexible working hours within the work environment. However, it was also made clear to us that many employers already do advocate and give flexible working hours to their staff. It gave us great heart to see how employers took on board this need. They did recognise the need to look after their staff, but also recognised that they had employment contracts that had to be dealt with, and they had to keep their employment relationship in a manner that enabled them to continue their business and that entire employment relationship.

One of the key things that I think many submitters focused on was the fact that they already offer flexible working hours, especially in the economic environment we have at the moment. It is very difficult to get good staff, it is very difficult to retain good staff, and employers take a lot of pride in their staff. They want to look after them, they want to train them, they want to make the staff feel valued, and they want to make the staff want to come back and stay with that employer. In doing so, they will be willing to negotiate and offer flexible working arrangements to their staff—it is in their best interests to do so. That was the message that we got from the employers. When we look at new Part 6AA—

The CHAIRPERSON (Ann Hartley): I am sorry, we are on clause 3—the purpose clause.

If we look at the purpose of the legislation it is very much a case of whether there is a need for change or whether there is existing flexibility within the workplace to enable employers to offer flexible working hours.

The key conclusion from employers was that they did have the ability, they did have the desire, and—more important—they did actively engage in giving flexible working hours to their staff. It became obvious that in a tight labour market, as there is in New Zealand, that was something the employers were going to do and would keep on doing to retain their staff. There did not seem to be a need to change the rules. There did not seem to be a major issue out there of employers not being willing or able to do so. They would bend the rules where they could to give these flexible working arrangements to their staff, and the legislation as it currently stood was not an impediment to their doing so; it was merely a case of negotiation.

I am pleased to have the opportunity to rise to speak to clause 3 of the Employment Relations (Flexible Working Arrangements) Bill. This clause deals with the purpose of the bill. I need to make it very, very clear right from the start that this legislation has no purpose in it at all. Anybody who has had the privilege of employing people understands well that legislation like this is the last thing that we need to govern the relationship between employer and employee, particularly when legislation already exists that makes provision for this sort of flexibility, and makes provision for this sort of matter to be sorted out in good faith between employer and employee.

I have noted with some interest the willingness of those who are promoting this legislation to turn to and quote UK examples. Let us be very, very clear that the New Zealand economy and the structure of New Zealand business are very, very different from the position in the UK. New Zealand, for example, relies for so much of its prosperity and so much of its employment on small firms—firms with a relatively small number of employees in a close working relationship with their employer. We cannot legislate for the quality of that sort of relationship. When Governments seek to do that, and when members seek to bring this sort of legislation into the House, we have to question very, very carefully what the purpose and motivation is for wanting to make this sort of change. I suggest to the Committee that legislating for flexibility is just one more example of legislation that this country does not have a need for and frankly, I suspect, does not really want.

But, of course, for some people this is good politics: they get their name in the paper, they put up a bit of legislation, and they get some of those people who want to advocate for employees onside. But if we sit down and think about what this legislation is trying to do—its purpose—we have to question the legislation. What does this legislation add to the quality of employer-employee relationships? [Interruption] No, nothing—my colleague Kate Wilkinson is right; it adds absolutely nothing. All it is, is another example of legislators wanting to throw in more law, wanting to change things—

💬 Bob Clarkson: Bureaucratic!

Yes, they are throwing in more bureaucracy to give their mates more jobs. We know that bureaucracy does not add to GDP; it does not add one dollar to GDP.

💬 Peter Brown: You wouldn’t have a clue what it was about.

Ah—there is a distant voice from New Zealand First talking about clues. We will have to tell the members of that party that they do not have a lot of clues. [Interruption] I raise a point of order, Madam Chairperson. Is it appropriate for the deputy leader of New Zealand First to shout at me across the Chamber while leaving the Chamber on his feet?

The CHAIRPERSON (Ann Hartley): No, it is not. I am sorry, I missed that; it is not right.

Thank you, Madam Chairperson. The point I am trying to stress, the point I am asking this Chamber to consider carefully, is the question of why we need further legislation to come between employer and employee, particularly given that so many businesses in New Zealand are relatively small and rely very, very strongly on good-faith provisions in legislation that already exists.

So we come back to one conclusion and one conclusion only: this is legislation for legislation’s sake. When we examine the purpose of the bill, we can come to no other reasonable conclusion. Legislation for the sake of legislation is not good legislation. Frankly, I think it is increasingly apparent that New Zealanders are sick and tired of this sort of interference in the way they conduct their daily lives. New Zealanders in employment are more than capable, without this sort of legislation, of conducting their relationships with reasonable, fair employers. [Interruption] It is common sense, as my colleague Kate Wilkinson points out—straight pure common sense. That is what governs relationships.

That last speech was just so ironic. It was extraordinary to hear that member, Allan Peachey, attack Sue Kedgley, who introduced this bill, because she based her consideration on a successful model in the United Kingdom. He was attacking her for that. That attack was from a member whose leader bases the way he breathes, lives, turns his head, and looks at the gallery and in the mirror on the way that the leader of the Conservative Party in the United Kingdom does. It is just extraordinary; every single thing that John Key does is based on what David Cameron does. Frankly, I think it was very sensible of Sue Kedgley to ask where in the world they have done this in employment and got it right. What can we learn from them? How can we apply it to the New Zealand employment situation? That is exactly what she has done.

I want also to commend the work of the Transport and Industrial Relations Committee. It is clear from its report back that on the purpose clause—clause 3—that we are debating this evening, the select committee members struck out the original. It sounds like they did a lot of work on the bill and there are a lot of alterations, which have good consideration behind them. The committee put in a new majority recommendation for clause 3, which we are considering now. I have two further amendments that I want to propose through my two Supplementary Order Papers. The first is in Supplementary Order Paper 148, and it changes the new clause 3(a)—to omit the words “certain persons” and replace them with “any person”. The reason is that I do not believe that the specificity and narrowness that was agreed by the select committee go far enough. I think that would cause tensions that can be avoided, particularly in small workplaces.

I have discussed the amendment with other party colleagues in the Chamber, and it seems to have received some understanding and support. I want to express my appreciation for that. So that is the purpose of that amendment in Supplementary Order Paper 148. I want also to commend the Hon Lianne Dalziel’s Small Business Advisory Group, which specifically raised this issue with me some time ago. I have taken the opportunity now to follow up its recommendation, and put it in the Supplementary Order Paper.

The second amendment I am proposing in my Supplementary Order Paper 153 is again to clause 3(a) but to a different line. The proposed amendment is to line 18, to remove the words “as to the period of their employment”. Members will see in subsequent amendments that I will discuss when we are into other clauses that that makes sense. In my view, even though the recommendations by the select committee were well considered and were certainly supported by the majority of the select committee, they do not go quite to the point that I think would give us the best satisfaction.

The aim of this legislation is to promote work-life balance, to ensure that employees are able to apply for jobs that are suitable for them. We know we have job vacancies and we have people who would like to apply for them but the jobs do not suit the hours they want to work. This bill will assist that mesh between employers and employees. It gives a legal back-up to something we know is happening in many workplaces already, but in some it is not. This bill gives the trigger that will drive a change in practice. I think it will be very important for employees and employers. It will help many people to return to, or go to, a paid job. It will help many employers to fill the vacancies they have. Indeed, the purpose of this bill is that people will be able to change their work hours when they have responsibilities that make that essential.

I commend Sue Kedgley and also the rest of the select committee, who have worked very hard with Sue. Sue has listened to the views of submitters. She has listened to the views of her parliamentary colleagues. I look forward to further debate this evening in the Committee stage of this bill. Obviously, I also look forward to my Supplementary Order Papers 148 and 153 having the support of the majority of the Committee of the whole House.

I was heartened to hear from David Bennett that the National Party had thought long and hard about this legislation and that it had been a difficult process for National. I note that people like Katherine Rich are not here today—

💬 Kate Wilkinson: I raise a point of order, Madam Chair.

The CHAIRPERSON (Ann Hartley): Would the member just withdraw and apologise.

I withdraw and apologise. I am sorry to say that Katherine Rich is not able to contribute here in this particular debate, because I am sure that someone like Katherine Rich would strongly support the right of people who are parents—such as herself or others—to request to work flexible hours. We have heard a lot about how this bill will force flexibility. It is about the simple right to request to work flexibly. It is about the right to request. We have heard over many years how utterly dedicated the National Party is to the family and to supporting the family. Here we have simple, practical legislation that is aimed at making it slightly easier for people with caring responsibilities and people with families to try to balance their paid work with their family life. The point is that in New Zealand at the moment, the norm is long and inflexible working hours. Yes, there are some employers—and we have heard about them; employers like EziBuy—that genuinely offer flexible hours. We applaud that. But what about all the others that do not? The UK has said that it needs a safety net and needs to make sure that all employees—not just those who work for a progressive employer—have this right to request.

I think it is a particular concern in New Zealand because we have not only an inflexible working hours culture but a very, very long working hours culture. Forty percent of us work more than 45 hours a week, and 21 percent of us work more than 50 hours a week. On average, we work something like 500 more hours than the average German, French, or Danish worker, for example. Yet, oddly enough, we are less productive than they are.

The problem is that as we have worked ever-longer hours over the last few decades, we are spending less and less time with our children. Surveys such as that undertaken by Paul Callister have demonstrated that more and more families are working for a variety of reasons, so they are spending less time with their children. As a result, there is a huge social cost that all of us have to pay when parents are not able to parent well because they are so stressed and exhausted. We have had some research here showing the effect on children and families of parents not being able to have enough time to spend with their children. All this bill is doing is saying that we should try to arrange our working hours in a way that enables us to take into account our caring responsibilities.

It is extremely interesting that one of the most ardent advocates of the legislation in the UK is none other than the leader of the Conservative Party, David Cameron. It is interesting, is it not, that the National Party here would oppose something like this legislation. Over in the UK the Conservative Party is such an ardent advocate for flexible working hours that David Cameron is wanting to extend its legislation. He says that flexible working hours are the key to modernising workplaces. He says they are the key to increasing productivity. He points out that when workers have more control over their lives they will be more satisfied and productive. There is ample research to point that out. It is interesting—it speaks volumes—that we have someone like the leader of the Conservative Party in England who sees flexible working hours as being the key to modernising workplaces, increasing productivity, and assisting families, when our so-called family-friendly National Party is opposed to something as simple as the right to request.

I rise to speak to the purpose of the Employment Relations (Flexible Working Arrangements) Amendment Bill, which, as we know, is to provide a statutory right for employees to request a variation of their working arrangements. But it also places a duty on the employers who receive those requests. I say at this stage, as a bit of an introduction, that I think it is appropriate to repeat that what we are debating tonight really is an important issue—that of flexibility in the workplace. If we were debating only the importance of flexibility in the workplace, then there would be no disagreement. But that is not what we are debating; we are actually debating legislating for that flexibility. We do not need to debate the advantages both to employee and employer of flexibility in the workplace, because we know there are advantages. We applaud that and we support that flexibility. We recognise the importance of flexibility not just for women or parents, but in order to facilitate good, productive employment relations for the benefit of both employee and employer. But we do not applaud or support unnecessary, rigid legislation. We support education as to the benefits of flexibility, but not the legislation.

I refer to a previous Committee stage speech by the honourable member Mr Peter Brown. At that stage he admitted that all employees have the right now to ask for flexible working arrangements. That is what he said: “all employees have the right to ask for flexible working hours,”. He also said: “I do not think anybody is arguing that it is not [true].” Obviously, that is right. But then, when we asked why we even need this legislation, his response was to refer to the purpose clause of the bill, which we are debating tonight, and which includes an obligation on the employer to consider seriously a request for flexibility. Mr Brown said: “The employee can already make a request, but under this bill the employer will have to consider it seriously.”, as though under the current legislation the employer does not have to consider it seriously.

So what, exactly, does he think happens, or can happen, under the existing legislation? What does he think “good faith” means, if it does not include taking any reasonable request seriously? [Interruption] I say to Mr Brown that that is exactly what good faith means—it means taking any reasonable request seriously. In fact, the current legislation specifically provides for “good faith” applying in relation to a variation of working conditions. Variations are provided for; good faith is provided for. Already the employer must act in good faith and consider such a request, so why do we even need this legislation? We say that legislation is not needed. We should have the debate, by all means. Debate is good; flexibility is good. We say we should use the debate to educate and promote the benefits of flexibility, but not to impose unnecessary legislation.

It was interesting that Ms Fenton said in that prior reading that “there is a lot stopping people from asking for flexible working hours at the moment;”. Well, what exactly is stopping them asking? Because it is certainly not in the law; it is already covered in existing legislation. But then, I liked her example of parties that “understand the realities of the working lives of many New Zealanders.”—that is what she said! She said cleaners here in the House, here in Parliament, might want to clean the House during the day and not at night, and asked “do members think that under the current legislation they would have a prayer?”, but under this bill she said they would. Well, firstly, they can make any reasonable request under the existing legislation and, secondly, all I can say is that I look forward to the interruption of a debate in the Chamber so that the cleaners can clean, because they want to clean during the day.

We have heard, twice tonight, about the UK legislation—that we should mimic the UK legislation, and that if it works over there, it will work here. I refer to the official advice we were given when we were considering the bill in the Transport and Industrial Relations Committee and were cautioned on the use, and value, of such comparisons. I will quote the advice, because I want to get it exactly right: “There are questions as to the extent of the impact of the UK flexibility legislation because there are methodological inconsistencies in DTI-sponsored research on the impact. The DTI results are not necessarily supported by research from other organisations. There is no accurate pre-legislation baseline of information to measure from, and often the surveys do not distinguish between those eligible to request and those not eligible.”

It is really sad to hear members of the New Zealand National Party announce that they will not vote for this progressive legislation. I have even heard one of its speakers tonight say that employees do not want this legislation and that it is legislation for the sake of legislation. Perhaps that member needs to talk to the leader of the British Conservative Party, Mr David Cameron, who said, amongst other things, that the Tories would go further than the present Government in encouraging flexible working. Mr Cameron has actually said that his ambition is to make the right to ask for flexible working available to as many people as possible. He says he understands that flexible working reduces absenteeism and means that staff are more likely to remain with a company. He also says that human capital is the natural resource of the 21st century, and that Britain must be a trailblazer of innovation in the way people work. If Mr Cameron understands all that, how is it that the New Zealand National Party and its leader, who seem to model themselves on Mr Cameron’s style, do not get it?

The Employment Relations (Flexible Working Arrangements) Amendment Bill is wanted and needed by New Zealanders. They want and need work-life balance. Here is the truth: the purpose of this bill, under clause 3(a), is to “provide a statutory right to employees who meet specified criteria … to request a variation of certain terms and conditions of their working arrangements because they provide care of certain persons;”. Here is the truth of what that means. In my previous career, I spent 10½ years caring for an elderly father while working full time. In that 10½ years of that career—and I was an experienced person with 10 years experience in that particular field—I would not have considered asking for flexible working arrangements without this bill in place. This bill means that people in my situation—women caring for elderly parents—will actually be able to make that request and get the agreement of their employer. It creates a level playing field for women in my situation.

The bill also creates that same level playing field for parents with young children, for those experienced people who want to go back to work but perhaps on reduced hours, and for those people who want an extended period of looking after their young children. The bill creates a way of keeping our experienced people in employment and contributing to businesses and to economic conditions in this country.

This is good legislation. It means that it is a fair playing field for employers and employees. Many employers in this country recognise the fairness of what this bill sets out to deliver. Many of them have talked to me and other Labour members about why it is important to have this bill in place. I pay tribute to the Minister and Sue Kedgley for having put forward and supported the purpose, the Supplementary Order Papers, the thinking behind this bill, and the contribution it will make to our economic life and to the work-life balance of thousands upon thousands of New Zealand workers. The bill is an important delivery to the workers of this country.

I am very proud of this bill. I wish it had been in place 10 or more years ago. Many of the people who come into my office will, for the first time, realise there is legislation that makes this sort of request possible. I feel that this is another of those fair deliveries by this Government, both to the employers and the employees of this country. It is a good bill. The purpose is good, the entire bill is good, it is a delivery we can be proud of. Thank you.

I have never heard such a diatribe in my life. I do not believe that the previous speaker has employed anybody in her life. I stand in the Chamber tonight to oppose this legislation, and, first of all, to make the point that the National Party believes that flexible working arrangements are, in principle, a very good idea. The bit that we are opposed to is the Government’s view that it needs to legislate for flexible working arrangements. This country is sick and tired of being a nanny State. It is sick and tired of a Government that makes rules for every conceivable contingency. People are fed up. I invite the Government to look at the opinion polls, and it will see how much support there is for this legislation. National members are convinced that the legislation, as proposed, is absolutely unnecessary in order to secure flexible working arrangements. It will be counter-productive in securing truly flexible working arrangements.

I am an employer and have been an employer for about 30 years. When a staff member says to me: “John, my father is ill.”; or “I’ve got a funeral.”; or “My daughter has the flu.”, I say, “Listen, take the day off.” It is in my interests that employees deal with their family circumstances. If they have a problem at home, they will not be any use in the workplace. That is a perfectly normal arrangement between employers and employees. I say to the Labour Government that this legislation, which it is forcing on people, will destroy initiative in this country.

Let me tell the Labour Government about employers in Dannevirke who recently said to me: “Look, we want you to know, John, we are supporting you because this Government is destroying initiative and entrepreneurship.”

💬 Anne Tolley: I raise a point of order, Madam Chairperson. The member on the other side of the Chamber has had her 5 minutes, and you actually spoke to one of my colleagues about being over-the-top with interjections. That member has consistently spoken in opposition to my colleague, who is on his feet. Let him have a go, Madam Chair.

The CHAIRPERSON (Ann Hartley): That is a fair comment, I think, but I would say that the member who is speaking has interjected consistently. I ask the members to keep it down. It is when members constantly talk that it is unacceptable.

It is the constant chipping away by this Labour Government at the rights of employers and decent employees, and the putting of rules, red tape, and bureaucracy into the workplace, that is killing this country. This constant chipping is sending 700 people a week permanently out of this country to Australia because they have had a stomachful of this Government and its rules and red tape.

But let me come back to the employer in Dannevirke who recently said to me: “John, this Government is destroying initiative.” I asked “How?”. The employer said: “Have you heard of Working for Families?”. I said I had. The employer said to me: “Well, we’ve got a bit of a problem, John. When we’ve got an export order to fill, and we want someone to work on a Saturday, or a Sunday, or a Friday night, and we ask our employees to please come in and help us get this order filled, they say to us they can’t come because if they earn more money it will come off what the Government is already paying them.”

💬 Darren Hughes: So what is the lesson in that?

I say to Mr Hughes that the point of this, as he will find out in Ōtaki when the rug is pulled from under him next year, is that people are sick and tired of this Government creating rules and red tape that destroy initiative and discourage people from going to work. We do not need that, and we do not need this legislation. I say to the people of New Zealand that clause 3(a) of this bill at the moment states that the purpose of the Act will be to “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;”.

Now, the great contribution from Madam Dyson from the South Island is to delete “certain persons” and insert “any person”. So anybody can invent any reason why he or she does not have to come to work. Can I say that clause 3(a) is incomprehensible English. Nobody will understand what this clause means. No labour lawyer will be able to fathom what this moribund, intellectually defunct Labour Government is trying to promote in this legislation. This legislation certainly will not encourage people to have flexible working arrangements. National believes that employees and employers are already free to bargain, in good faith, over flexible working arrangements. That is certainly my experience as both an employer—

I move, That the question be now put.