Employment Relations (Flexible Working Arrangements) Amendment Bill

I rise to speak to clause 6A of the Employment Relations (Flexible Working Arrangements) Amendment Bill, which really is the substance of the bill. This is the clause that provides the employee with the statutory right to request a variation of working arrangements, and it also provides for the prescriptive statutory duty of the employer in relation to that request.

Before I continue, though, I will spend a little bit of time on Supplementary Order Paper 148 from the Minister, Ruth Dyson, which omits the word “reasonably” from new section 69AA(c). That might sound innocuous enough, but at the moment that paragraph provides that “an employer may refuse a request only if it cannot reasonably be accommodated on certain grounds;”. This Minister has said that the paragraph should read that “an employer may refuse a request only if it cannot be accommodated on certain grounds;”. There is a big difference between a request that cannot be accommodated and one that cannot reasonably be accommodated. “Reasonably” brings in the notion of objectivity, which obviously that Minister is totally unaware of. By removing the word “reasonably” it virtually means that unless it is impossible for the employer to accommodate the request, the request must be granted. By removing it, it takes away objectivity, and the Minister should be aware of that. I think it is a very dangerous precedent to set in relation to that Supplementary Order Paper.

This clause is the real substance of the bill. I know that National has said that it supports flexibility, but we are concerned, firstly, that the legislation is not necessary, and, secondly, about the cost to the employer. In fact, a New Zealand Herald editorial back in November was entitled “Don’t turn flexibility into a cost”. It is an interesting article and I would like to quote some excerpts from it, because I think it is very useful and adds to this debate. The article reads: “Flexibility, with reference to working arrangements, is a word long favoured by employers … Previously, flexibility was advanced for the good of firms, industries and the whole economy; all of which needed to be as competitive as possible once they were exposed to global markets. Now flexibility is being argued on principles of ‘work-life balance’, particularly for working couples trying to meet the demands of children and a career. There is no reason that both interests cannot be served by mutually convenient working arrangements but mutual is the crucial word.”

This legislation is simply not necessary. The article continues: “But the more concrete proposals are those intended to help employees make requests for flexible terms, have their requests reasonably considered and arrangements adhered to. It suggests legislation could make more specific provisions for employees’ rights to request flexible arrangements, the procedures employers must follow when they receive a request and the permissible grounds for a refusal. If this begins to sound ominous for employers, it is.” That is what the editorial says; I will repeat it: “If this begins to sound ominous for employers, it is.” The article continues: “The principle needs restating that flexibility is best left to individuals and firms to find in their infinitely varying needs and circumstances. As soon as flexibility is codified, even as a negotiating procedure, it is in danger of becoming just another cost of employment and a discouragement to growth.”—“As soon as flexibility is codified”, which is what this bill is trying to do—“even as a negotiating procedure, it is in danger of becoming just another cost of employment and a discouragement to growth.”

Concerns have been expressed—and we will get practical here—that employers will have to prioritise the demands of parents and carers who qualify ahead of requests from other employees. Warnings have been given that this bill could also lead to personal grievances if employees feel that their demands for flexible working arrangements are not heeded.

It is interesting listening to the National speakers on this issue tonight, talking about what New Zealanders want and so on, because I think that they live in some sort of cocoon. We have had thousands of letters from workers and organisations that say this Employment Relations (Flexible Working Arrangements) Amendment Bill is a good thing. Maybe what National members do not understand and need to get their heads around is that we have flexibility in our workplaces all right, but it has been going all one way. That is what this bill is about; it is addressing the imbalance.

I particularly want to address new section 69AAEA, which is proposed to be inserted by Supplementary Order Paper 148 in the name of the Minister Ruth Dyson. It lists the grounds on which an employer may refuse a request. It amends new section 69AAE(2) and (3), which is to be inserted into the Employment Relations Act by clause 6A of the bill, to omit the ground relating to undermining the terms of a collective employment agreement. Before National members rejoice about that, it replaces it with a requirement under the new section 69AAEA(3) that an employer must refuse a request if it is from an employee who is bound by a collective agreement and the working arrangements that the employee requests would be inconsistent with the collective agreement. This is a very important provision, and I am very pleased it is there.

New Zealand has no working-time limits. We have no maximum or minimum hours of work. We have no legislative provisions for overtime pay or for weekend work. Our breaks are not even legislated for, yet. With Labour Day and the celebration of the 8-hour day coming up this weekend, I think it is very timely to reflect on these issues.

We all know that the reforms made to the national employment legislation during the 1990s delivered the ultimate in flexibility. But “the ultimate” meant no protection for workers—no protection in bargaining and no protection of working hours. Working hours were decided at the whim of the employer, and dismissal resulted if the employee did not agree. So when members opposite say that employees can just ask, it does not work like that, because National has set up a situation where workers are fearful to ask, and what should seem like a simple thing is no longer so. The outcomes are serious, not least on workers and their families. National directly caused many of the problems we have been debating during the stages of this bill.

The challenge we have today is to combine greater flexibility with the need to maximise job security; the two have to go together. It is interesting, because when management and unions work together, that combination is more likely to be reached and the real potential of working-time reorganisation and flexibility is more likely to be realised—and it is done through collective bargaining. Working hours are critically important to workers and are often at the top of the list of their concerns when it comes to bargaining. Usually, their concerns are about unpaid overtime, long working hours, shift work, and weekend work. Bargaining for agreed working time and collective agreements is the main way that workers today have a say in their working hours, and often, collective agreements provide the only instruments with a sensible limit on working hours.

That is why the amendment proposed on the Supplementary Order Paper, that an individual right to request flexible working hours should not be able to undermine collective agreements and arrangements that have been made between a union and an employer on behalf of all of that workforce, is really important. Key to the success of this, and this would be foreign to the National Party, is the detailed cooperation between management and unions, and that is what this clause supports. Instead of approaching flexible working arrangements as a benefit to be handed to out to those individual workers with deserving special circumstances—which is what a nice boss, like the member over there, would do—the focus needs to be on finding solutions for everyone, including improving business competitiveness, job security, and the balance between work and the personal lives of those in the workforce. Most important, collective agreements have proven that, far from limiting flexibility, the regulation of hours can enable a sensible compromise to ensure that everyone wins—not just the employer, but all the workers and their families, as well.

The problem with a lack of proper control over working hours is that it continues a vicious cycle of inequality. I love hearing the National members going on about this; this is a sensitive issue for them, I can hear that. The reality is that when one person works long hours, that person’s partner often has to reduce his or her hours to look after family responsibilities—and members can guess who that usually is; it is usually the woman in the relationship. This issue has an ongoing influence on pay rates, pay inequity, and career inequity for women. So as we enjoy Labour Day this weekend, and the members opposite have the day off, I hope we all take a moment to pause and reflect on the current expectations of the labour market, where work comes before workers.

I appreciate the opportunity to speak on clause 6A of the Employment Relations (Flexible Working Arrangements) Amendment Bill. I would like to begin by inviting the Labour list member who just resumed her seat, Darien Fenton, to perhaps table the thousands of letters she claims to have received on this matter, because this side of the House would be very interested to see them. I am willing to yield to the member if she would like to do that. There is silence.

Clause 6A, the object of this part of the debate, gives me the opportunity to reflect on some of the things that have been said by the other side of the House tonight, and to reflect on comments made by the proposer of the bill, Sue Kedgley. It seems to me that if we are really honest about the object of the bill we should be saying only one thing: the object of this proposed legislation is to take the New Zealand of 2007—a supposedly independent, freethinking, and democratic country—and turn it into—

The CHAIRPERSON (Ann Hartley): The member needs to come back to clause 6A.

The object, it seems to me, is to turn New Zealand into a little England.

The CHAIRPERSON (Ann Hartley): The member needs to speak about the details of clause 6A.

I was keen to make the point.

💬 Peter Brown: What’s wrong with England? We’re in the World Cup final.

Oh, the mouthpiece of little England itself!

💬 Darren Hughes: Little Britain.

No, it is not little Britain; it is little England. That has to be of concern. I listened to the previous speaker, Darien Fenton, talking about balance, and about adjusting the balance between employer and employee, as if the relationship is currently out of balance. That line is the old left-wing trade union line that New Zealanders have listened to for the length of time the Labour Party has been around—90 long years. Its thinking has not moved beyond that.

I would have thought that every reasonable, fair-minded New Zealander would be concerned at a provision that allows a dissatisfied employee to take mediation. But what about a dissatisfied employer? You see, the thinking that is behind this sort of provision is the thinking that we on this side of the House seek to challenge tonight. It is more than just about flexibility; it is also about efforts by the left wing in this House to shift the balance in employment relationships even further to the disadvantage of those New Zealanders who take the risk, run the businesses, create the employment, and work very, very hard to ensure that their employees have the opportunity to earn a reasonable income.

When I look at the provisions that are contained in new section 69AA and subsequently I see the opportunity for more red tape and for the onerous imposition of further financial charges against the very people who create employment in New Zealand. When we talk about new part 6AA and subsequent provisions we have to ask why this Committee is debating a measure that has no further object than to make it more difficult for small employers—and New Zealand is a nation of small employers, which is why the attempt to turn New Zealand into a little England is not valid—and for the men and women who work for them, to manage their own employment relationships.

It is a great pleasure to be able to stand up in the Committee stage of the debate on the Employment Relations (Flexible Working Hours) Amendment Bill. I have been a member of the Transport and Industrial Relations Committee, but I have not yet had an opportunity to enter into the debate on this bill, so it is a great pleasure indeed to be able to do so. It was extremely noticeable that the previous speaker in the debate on clause 6A, Allan Peachey, had not been on the select committee, did not really understand what this part of the bill was about, and is completely out of touch with the needs of New Zealand families.

💬 Allan Peachey: I raise a point of order, Madam Chairperson. As the father of four children I take exception to the allegation that I am out of touch with the families of New Zealand.

The CHAIRPERSON (Ann Hartley): Please be seated. That is a debating point.

The whole point of what that member was speaking about was the supposed cost of this bill to employers. If he had been speaking with New Zealand families, or even with employers, in recent times, he would have understood that the largest problem that New Zealand employers face at the moment is actually a skills shortage; it is the inability to recruit and retain staff. So what better way is there to address the modern New Zealand world than for employers to have legislation that gives them guidance and support in introducing flexible working hours, as this bill does? I remind that member that he seemed in particular to disregard new section 69AAE(3) of the legislation, which talks about the grounds for refusal. These are the grounds by which the employer can refuse a request from his or her employee.

I want to remind people listening to this debate that the employees whom we are talking about here already bear costs. Kate Wilkinson talked at great length about the supposed cost to the employer. I would argue that there would be a cost to employers of not going down this track, in fact. However, we know in this day and age that New Zealand families carry costs of inflexible working hours all the time. I do not know whether any members opposite have, in recent times, paid for childcare, and I do not know whether any members opposite have recently paid for caregivers to look after disabled relatives, but these are the costs that are borne day in, day out and week in, week out by New Zealand workers and their families. So if we are going to talk about costs, let us be equitable about it; let us talk about the true cost to New Zealand society of having inflexible working hours, inflexible working ability, and working arrangements.

The previous speaker needs to read new section 69AAE(3), which covers the grounds for refusal. If members opposite understood the modern business environment, then they would understand that these grounds are entirely acceptable, because they are: the employer can refuse a request if there is “(a) inability to reorganise work among existing staff:”. Those members have gone very quiet, because that provision completely blows away their entire argument, and particularly Mr Peachey’s most recent contribution to this debate—it is completely blown away by just one sentence in the bill.

💬 Hon Member: And there’s more.

And there is more. Another ground for refusal is “(b) inability to recruit additional staff:”. So where are these hidden costs coming in? Employers can actually refuse on the grounds that there would be “(c) detrimental impact on quality:”. I would like Kate Wilkinson to take a call and describe exactly where these hidden costs are. Another ground is “(e) insufficiency of work during the periods the employee proposes to work:”—

💬 John Hayes: Unions bashing employers—that’s what you’re up to!

A bit of union bashing is going on across the Chamber. What is happening here is family bashing from the opposite side of the Chamber. Those members are saying that workers with family responsibilities should not have the legal right to request flexible working hours.

💬 Chris Tremain: They already have.

Well, they should say it loud and say it clear, because I think the vast majority of New Zealanders absolutely disagree with the National Party on this. They know that flexible working hours and quality family life are at the top of their agenda. The National Party will suffer for its position on this bill.

I will continue talking about the grounds for refusal. These are grounds that employers can use for refusing requests.

Unlike the member who spoke before me, Sue Moroney, I will not stand up and make allegations about members on the other side of the Chamber as to whether they are family-friendly, whether they like children, or whether they support them. Those sorts of allegations make members on that side of the Chamber be seen in the light of what they truly are, which is, quite frankly, just nasty and a bit angry, when it really comes down to it.

New subsection (3) under new section 69AAI is one that I certainly have questions about and would be interested in discussing a little more. The subsection states: “An application under subsection (2) must be made within 3 months after the date on which the employer notified the employee that the employee’s request was refused.” Supplementary Order Paper 148 has changed that date to 12 months. That just seems absolutely incredible. So not within 3 months, but within 12 months, after a request for flexible working hours, for whatever reason, an application can still be made. That just seems absolutely incredible and far too long. It is simply too long.

The other section in this part is the section stating that within 12 months an employee can make only one request. As we know, flexible working hours are happening now. As we have heard many times from this side of the Chamber, surveys and reports from employers and employees state, time and time again, that requests for flexible working hours are being made and are being met. So now we will have a law, and once we start putting in laws we find that people do things to the letter. That is what most of our employers do—they do things to the letter.

So a family can make a formal request—and let us just think about what might happen for that family. The family might need special circumstances around childcare for their 4-year-old, so they put in a request noting the hours that would suit around childcare for that young one. They put that request in to the employer and it is—or is not, as the case may be—accepted, and that process can go through.

But for 12 months after that family have made their formal request, they no longer have the opportunity under this legislation—and the other side of the Chamber is arguing that we need legislation around this—to make another request. So with this legislation those members have actually restricted people’s rights to make more than one request. They can ask only once.

What if the childcare arrangements change within that 12-month period? What could well happen is that the centre down the road drops 23 hours—because they see what an absolute hoax it is and can no longer keep in business if they have it—and that means that that child cannot go to that centre for 20 hours. That means that the family need to make other arrangements.

If one is an employer and is going by the letter of this legislation—which an employer is likely to do, because we have law-abiding employers out there; they do everything they can to stay within the legislation and the rules that are put around them—then that person will be worse off. I think that is an absolute tragedy and an absolute shame, and it will, more times than not, work against parents and their families.

There is no bigger argument than the fact that this is legislation for the sake of legislation. No one supports flexible working hours! We have heard it said in this House and we may as well say it again—any sensible employers will accommodate their employees in any way they possibly can, and they do. They do it now, as we know. They accommodate their staff whenever they can. The amount of informal arrangements that are made between employee and employer, or employer and employee, happen because of the employees themselves. What happens time and time again is that the employees get together and say: “Hey, listen, how about I start earlier and you start later. This will make sure the shop’s still open until this time.”, and then everyone is happy, and then that changes a month later because this issue affects people’s lives, and that is what they do. More often than not, they negotiate that among themselves and they make it work.

I have sat here and listened to the debate thus far this evening, and I have to ask those National members whether they are all on the same team.

💬 John Hayes: Absolutely! We’re not on your side, that’s for sure.

I hear all sorts of arguments coming from there, and clearly some of those members have not got a clue what the Employment Relations (Flexible Working Arrangements) Amendment Bill is about. My best advice is to read it in depth.

Secondly, I have to say that Paula Bennett made some good points. She is challenging the provision in clause 6A, section 69AAD(2), which states: “The employee is not entitled to make another request under this Part to his or her employer earlier than 12 months after the date on which the previous request was made.” I say to Ms Bennett—she has just disappeared—

💬 John Hayes: I raise a point of order, Mr Chairperson. The Standing Orders do not provide for someone to be referred to as having left the Chamber.

The CHAIRPERSON (Hon Clem Simich): Quite right.

Mr Chairman, I did not say she had left the Chamber. As far as I know, she could be standing right behind me

The point I am making is that if Paula Bennett wants to put forward an amendment to delete that clause, New Zealand First will give serious consideration to supporting it. I cannot commit the Government to it, but if Paula Bennett wants to delete that clause, we will give serious thought to supporting her. It is unlikely she will be on her own if she wants to do that.

💬 John Hayes: Why don’t you do it, then?

Having said that, I say to Mr Hayes that this has been put in here at the behest of employers, the people whom he is supposedly standing up for and supporting. You said you are such a dang good employer that you do not need the legislation.

The CHAIRPERSON (Hon Clem Simich): Order!

Not you, Mr Chairperson. I would not dare say that to you.

I say to Mr Hayes that I have no doubt he is a good employer. When I was an employer, I thought I was pretty good and pretty fair. I used to let my staff operate pretty reasonable and flexible working hours. I do not doubt that he did the same, or does the same if he is still employing people. I only hope he did a better job with his staff than he did with a little old Japanese lady, whom he apparently ripped off to the tune of $900. Or was it $900,000? But never mind.

This bill will have little or no effect on the average good employer, whether that employer is large, small, or in between—none at all.

💬 Allan Peachey: Then why have it?

That is a good question, and it has been answered. Kate Wilkinson quoted me earlier, and I was quite chuffed to be acknowledged in her comments. She seemed to be implying that I was some sort of expert on labour relations. I took it as a compliment. She said that we do not need this bill because we have good faith. I know that Kate Wilkinson does not believe that every employer operates in good faith. If those members think that, then they are out of touch with what goes on in this country. Many employers in this country work in a very competitive environment, and from time to time that necessitates their taking short cuts.

All this bill does is allow employee’s to go along to their employer, in a formal sense, and ask for flexible working hours because they are looking after somebody. I would say that most employers would comply with that, without any shadow of doubt. But there are some who will not or do not, and if those members do not know employees who work for those sorts of people, then they are not in touch with the average New Zealander. [Interruption] I say to Bob Clarkson he should sit down and keep quiet. I know he would not need this bill. From what I have discussed with him, I know he talks to his staff and he listens to their concerns. But I know that he knows that there are employers who do not do the same.

💬 John Hayes: So their employee leaves. That’s their right.

I would not employ that member if he was the last man living, but never mind. It is a sad fact of life that some employers are unapproachable to their staff. The staff might legally have the right to go along and ask for flexible hours, but some employers are totally unapproachable.

All this bill does is give the employee the right to formally go to the employer and ask for flexible hours. If the employer cannot accommodate that request, he or she can refuse it. The bill lists a number of reasons for refusal—for example, the inability to reorganise work among existing staff. If there is an inability to recruit additional staff, the request can be rejected. If there is a detrimental impact on quality, it can be rejected. If there is a detrimental impact on performance, it can be rejected. If there is insufficient work during the periods the employee wishes to work, it can be rejected. If there are planned structural changes, it can be rejected. And so the list goes on.

I do not think that, for the most part, this bill will have any effect at all on employment relationships between employees and employers, but it will have an effect when the employer does not play fair. It will have an effect when the employer is not prepared to give reasonable consideration. The employee can go along formally—I have to emphasise “formally”—and request flexible working hours because somebody is sick or needs help, or in situations where the employee is in a caring position and needs to adjust his or her working hours to suit. That is totally reasonable in a civilised society.

Members should go home, look in the mirror, and say they are voting against this. I challenge them to go home, look in the mirror, and say “That is me and I am voting against it.”

💬 Colin King: So you’d legislate?

I know the member; he will not do that. He will go in with the party vote, but in his heart he knows that it is a reasonable request.

💬 Colin King: You don’t need legislation.

Let me say that we need legislation if people do not comply with the reasonableness of this sort of thing. This bill has been reshaped and restructured to make it the fairest possible bill it could be, in terms of employees and employers. The average, decent, law-abiding employer has nothing to fear—nothing to fear at all.

💬 John Hayes: More unnecessary law.

It is not unnecessary if employees are not given a fair shake of the whip, if employees are too scared or too nervous to talk to their employers, or if there is an abundance of people who can be called upon.

We are talking now about low-paid people—people employers can get 10 a penny, so to speak. Employees cannot go along and ask for this without legislation supporting it. That is a sad fact of life in this country. It used to be the fairest country going, but now elements about it are totally unfair. Low-paid and low-skilled people in particular, who can easily be replaced, need the protection of this sort of legislation simply to go along and ask whether they can have flexible working hours to look after their sick relatives, or their sick sons or daughters. That is absolutely a reasonable request to make. Thank you.

I would like to pick up from the point that the New Zealand First member Peter Brown made, which was that we, and in particular the Minister of Labour, Ruth Dyson, have bent over backwards to try to accommodate the needs of employers. Many of their requests are enshrined in the amendments that the Minister has made, and I take this opportunity to thank the Minister for her hard work in coming up with amendments to improve this bill.

In particular, I commend her amendment that extends the right of flexible working hours to any employee who has the care of any person. I think the Minister has made a fantastic amendment. Indeed, she has met with and talked with Business New Zealand, and has made a series of amendments—I will not go through them all—that meet many, perhaps most, of its concerns. There is all this nonsense that someone could take this matter to the Supreme Court—not that anyone ever would—and just for the avoidance of doubt, the Minister has proposed an amendment that will ensure that the matter cannot go beyond the Employment Relations Authority. So she has made a series of amendments, and I think they have greatly improved the bill.

I have made an amendment, too, which states that when the legislation is reviewed in 2 years’ time, we will see whether the provisions of this part should extend to all employees. I personally would love to see the provisions extended now, but I think that extending them first to those in greatest need who are caring for other persons, whether they are children or elderly parents, means that in 2 years’ time there will be general consensus to extend them to all employees. This is what has happened in the United Kingdom. In the United Kingdom, before the legislation was introduced it was vehemently opposed by the business community for exactly the same reasons the National Party is talking about today. Of course, its members are talking here on behalf of Business New Zealand. But the point is that surveys now show that 90 percent of UK employers say they have had no significant problems in complying with the new right. Indeed, I have a quote here from the Chartered Institute of Personnel and Development, representing 127,000 members in British management and personnel: “The existing right to request flexible working has been well received by employers, has successfully encouraged rather than compelled them to experiment with flexible working practices,” etc.

The other point I would like to make concerns National Party members—rather weak in their arguments—saying that people can ask for flexible working hours. Well, of course they can ask. They can ask to have their pay increased by $300 an hour. They can ask for 6 months’ holiday every year. They can ask, but they are not likely to get it. Surveys done by the Department of Labour show that the overwhelming majority of New Zealanders need and support more flexible working hours. The majority of them support this legislation.

I also say that if most employers were providing flexible work hours, as the National Party claims, why would 93 percent of 5,000 parents in a recent survey say that flexible working hours is the change they would most like to see in their workplaces to help them juggle their work and home responsibilities? In many cases, what is claimed to be flexible working arrangements turn out to be little more than the ability sometimes just to work a lunch hour or to go to the dentist. Paul Callister, who is an expert in this area, said the situation is that employers say they are family-friendly, and probably believe it—and some are—but employees are grinding their teeth. We are finding that employees are saying that despite all the rhetoric and all the talk about flexible working hours and work-life balance, there has been very, very little change. In particular, in areas like nursing, the union says that literally thousands of nurses out there have indicated they would like to work, but they need more flexible working arrangements to accommodate their families.

I will take a brief call to follow on from Sue Kedgley, and to speak specifically to Supplementary Order Paper 148 in my name, in relation to the clause we are currently debating.

Sue Kedgley referred to two specific parts that I want to draw to the attention of the Committee of the whole House. The first one is the change that I have proposed in terms of replacing “disabled child” and “relative” with the term “any person”, so that the primary carer of any person who is dependent is able to apply under this legislation for flexibility in his or her hours.

I have heard National members say, on regular occasions in their contributions, that there is no need for legislation—that people currently have the right to request flexibility in their hours. That is absolutely correct, and many do. Many who make such a request work it out quite reasonably with their employers. That is good, and nothing in this legislation changes that. But we know—as a result of the work we have done with employers and employees—that some need the backing of the legislation.

This legislation does not require an employer to grant the request; it requires the employer to consider the request fairly. Some employees, particularly those in vulnerable situations, are not only the primary carer but the only carer of another person. They not only need but, frankly, deserve the backing of the law, so that when they ask for a change in their work hours, their responsible employer—because of the law—gives fair consideration to that request.

Frankly, the grounds for declining a request are so extensive that employers would have to be out to lunch if they could not find one that suited them if they really wanted to decline it. But I think most employers will be guided, rather than instructed, by the legislation. As with many pieces of law that we pass, these provisions will lead a change in behaviour, so that the law becomes literally unnecessary, but we are not at that stage yet.

The second part of my Supplementary Order Paper that I want to draw attention to is one that Sue Kedgley also referred to, and that is changes in the dispute resolution procedure. In the unlikely event of an employer and an employee not getting resolution of a request immediately, if there is some dissatisfaction with it, the first point of call will be to invite the labour inspector to come into the workplace to get some resolution, in the same way as labour inspectors currently do with disputes over wages or time records.

💬 Bob Clarkson: Another bureaucrat.

I would have thought Mr Clarkson as an employer in his previous life would understand that. Perhaps he never had any wage disputes. That is fabulous. I am glad that he was such an outstanding employer that he never required assistance from anyone else. But not every employer is as exemplary as Mr Clarkson previously was, and no doubt will be when he leaves Parliament after the next election.

So the first point of call will be the labour inspector, then there will be two others if that is not satisfactory. The first is mediation, which is already hugely successful, not in minor considerations such as this—it is just about a procedure—but in quite complex disputes. It is already hugely successful. If that is not satisfactory, the next and final point of determination will be the Employment Relations Authority. There will be no opportunity for a disgruntled, dissatisfied employee to go any further than that.

There did seem to me to be a limit to how many times someone can say to an employer “You must give this request fair consideration. Please do it again.” I do not imagine that these procedures will be needed. I am sure that the majority of employers are short of workers to fill job vacancies, because of the success of the last 8 years of legislation passed in this Parliament. More New Zealanders are in paid work than ever before.

The biggest challenge facing employers is to fill job vacancies. I cannot imagine that those disputes resolution procedures will be needed, but if they are needed, it will be the labour inspector first. If that does not work, the matter will go to mediation. If that is not satisfactory, it will go to the authority.

This debate has been really interesting. I say to the people of New Zealand who are listening to this debate, and not watching it, that it is really interesting being lined up against a sailor who jumped ship and stayed here, and a bunch of people who have never done anything in their lives except work for unions or organisations. They have never employed somebody and therefore do not understand the dynamic that we find in a small New Zealand company.

💬 Darren Hughes: Says the ex-bureaucrat.

I reiterate for the member for Otaki, so that he can listen to us before he departs from this House next year, that the National Party believes in flexible working arrangements. The bit we disagree with is that Labour is putting it into legislation that nobody in this country wants.

Can I just explain something to Minister Dyson, who brought in a Supplementary Order Paper half an hour ago where under clause 3(a) “certain persons” is turned into “any person”. Let us transfer that from the Supplementary Order Paper to clause 69AAA. If we are going to have “any person” in one provision, for goodness’ sake, why does the incompetence of this legislation have to be demonstrated—it is poor drafting—by defining in another provision things like a “spouse”? Is not a spouse any person? A “parent”—is not a parent any person? A “child”—is not a child any person? A “brother or sister”—is not that any person? A “grandparent”—is not that any person? A “grandchild”—is not that any person? A “spouse’s or partner’s parent”—is not that any person? For goodness’ sake! Why do we need the legislation written this way? If the Minister had had an overview, if the Minister had read the appalling legislation that is before this Committee, she would have introduced a Supplementary Order Paper to straighten out this nonsense. We cannot put a finger in the dyke in one place without adjusting the rest of the template, which as a result has been tampered with. This is—totally, absolutely—poorly drafted legislation.

We want to have flexibility. Mr King is a shearer. If the daughter of one of his shearers has a sore tooth, then Mr King will want to have a flexible working arrangement on that day. Under this legislation that the ship-jumper from the UK is promoting, we can find ourselves—

💬 Peter Brown: I raise a point of order, Mr Chairperson. I do not take offence at that; the member is trying to promote something. But I have to clarify that ship-jumping is an illegal activity, and I have never been part of that sort of activity. I came here many, many years ago and I have a certificate and a letter of welcome, signed by a National immigration Minister.

💬 The CHAIRPERSON: The member may not refer to another member in that way—

I will withdraw that comment, but I acknowledge that even National Ministers can make serious mistakes.

In the situation I am referring to with Mr King, in the context of clause 69AAA, if a person has an immediate problem and wants to make an adjustment, that employee makes a request to the employer, who then has a year to come up with an answer. Is that flexible? Come on! Of course it is not flexible. This Labour administration, supported by the Greens, United Future, and New Zealand First, is putting in rigid legislation that will give no flexibility at all to workers in this community. This is why we are arguing, from a National perspective, that for a business to operate effectively and efficiently there has to be a good relationship between an employer and an employee.

I say to those trade unionists on the other side of the Chamber that there is one freedom in this country that every individual has, and that is the right to sell his or her labour to whomever that person likes. If someone does not like his or her employer, that person can move on. No one is going to stand in his or her way. It will be good for the business and it will be good for the person. We cannot legislate for good working relationships. We cannot legislate for good relationships within a business. It cannot be done. Talk to “Bob the Builder”, because out of the members in this House he is probably the biggest employer of people, right now. He knows that this legislation will be of no use to him.

When we have challenged Labour members and asked: “Who are the companies that support this legislation; what are their names?”, what companies do they name? There is Telecom. Who is the owner? It is the Government. Then they name Air New Zealand. Who is the owner? It is the Government. Then they talk about various organisations employing nurses, and other entities that have lots of members. But they are not employers; they are not the people who are adding to the productive capital of this country.

This legislation, along with everything else this Government is doing, is driving people offshore. We can fill the Wellington stadium, the Cake Tin, with 36,000 people, and what happens every year? That number of people goes to Australia. We can fill it up again with another 36,000 or 37,000 people, and that number will go, too. They do not all go to Australia, but they are leaving permanently because they do not want clause 69AAA—absolutely, they do not want it. They can see that inflexibility is coming into the workplace from the legislation, and they do not like it. That is why they are leaving.

This is bad policy. This is badly written law. The Minister has got her Supplementary Order Paper wrong. She brings in the word “any” to include every possibly conceivable situation, and then in clause 69AAA she has paragraphs that run from (a) to (g) describing people who are already “any”. “Why not delete them all and just put the word ‘any’?”, I ask the Minister. Then she will be tidying up what is, at the moment, bad law.

But then we have to think about the context. In the context is it flexible care we are going to be allowing? Is it temporary care we are going to be allowing? Is it permanent care we are going to be allowing? This legislation is poorly drafted. Do we define “care” in the bill? No, we do not define “care” in the bill, at all.

Then we can talk about working arrangements. Working arrangements, which workers can apply to their bosses for a change, include the hours of work, the days of work, and the place of work. Well, if people are apple orchardists like me the only place they can actually work is on their orchards. So what is the point of writing into legislation that we should enable employees to say: “No, I don’t want to work on your orchard, I want to go and work somewhere else.”? This is a nonsense; it is poorly drafted legislation.

In relation to the question of hours of work, I tell members that very often in rural communities—and I understand that this Government does not understand the slightest bit about rural communities—we have to work according to the weather. In the summer there is a lot of daylight so we have to work a lot of hours, because that is when our lambs are born and our crops are grown. We need flexibility with our employees to cope with that. Of course, there is no employer who is ever going to say to an employee: “No, I don’t want to listen to your perfectly reasonable request.”, because it is not going to be good for his or her business—that is the driver. This legislation is absolutely unnecessary and National opposes it totally.

We have heard comments about fairness from members on the other side. Basically, when they are talking about fairness, why on earth can they not back this bill? It is obvious that they cannot back this bill, and they certainly cannot back this Supplementary Order Paper, because their friends and mates in the Business Roundtable have picked up the phone and said they do not like the Employment Relations (Flexible Working Hours) Amendment Bill, because the so-called free market operates on one premise: free for the employer but not free for the employee.

We have heard from people on the other side of the Committee who, in their heart of hearts, aspire to be the lord of the manor. In the middle of the night they actually believe that workers and employees should be grateful for having a job, with all this bunkum about free choice and flexibility. Even my good friend from Tauranga was disparaged as a so-called ship-jumper from the UK. Well, if he did jump ship, he is a far better import than all of the Opposition combined. I bet every expatriate from the United Kingdom would be proud of him in terms of his contribution to date.

But fairness and freedom are what this Supplementary Order Paper is about. It is about being for the family, and being for fairness and reasonableness. Some of us never forget that the previous Government introduced something called the Employment Contracts Act. There was no contract, it was take it or leave it. It was the “Employment (Take it or Leave it) Contracts Act.” As for the notion that the 18-year-old who turns up for a job at the gas station or the petrol pump is somehow equal with the employer who may be a very wealthy individual, we know that for the sham it is.

It is interesting that they were talking about filling cake tins or whatever to go to Australia. The reason people go to Australia is for higher wages and perceived better conditions. But watch this space. We look across the Tasman and we see the Employment Contracts Act in the form of the workplace legislation, which I can say as a member, without interfering in the domestic affairs of Australia, is now up for very, very vigorous debate. I personally believe that the people of Australia will deliver their verdict on that particular industrial legislation.

I speak as someone who has some background in a small-business family company. I am also proud to have been a member of a trade union in my life. The two are not contradictory. In fact, most New Zealanders are decent, good, hard-working people, whether they work in a business or they are trade union officials. The one thing that I really remember was the wonderful relationship my late father had with an official from the Engineers Union, the late Ralph Savage. They got on well. They were two reasonable, decent Kiwis who talked across the table and came to a deal. The only reason they had to talk—and I am talking in terms of the Supplementary Order Paper—was when there was a need for negotiation; where the normal sort of agreement had broken down, and one moved to the next point of reasonable people talking in order to get a fair and reasonable outcome. If the two parties could not agree, then one moved to arbitration and mediation.

This is not rocket science; this is the basis of building good industrial relations in this country. But the weasel words from across the table are: “Oh, we really like this but it’s too restrictive.” What they want, and what the real agenda is—as one can see across the Tasman with their sister political party at the moment—is “workplace choices”. Is that the word?

💬 Lesley Soper: Yes, that’s right.

There are no choices for workers. All the choices are for the Business Roundtable and big business. In fact, this is giving us the next bit of the hidden agenda, which is out there. Make no bones about it, that crowd opposite will be reintroducing a new version of the Employment Contracts Act. Lest we forget, they will be introducing a new version, and they will be winding the clock back.

I appreciate the opportunity to speak again on Part 6AA of this proposed legislation. I want to refer back to a speech addressing new Part 6AA given by the Labour trade union list member Ms Fenton. That member made the big claim on the floor of this Chamber that she is in possession of thousands of letters. I have already invited that member once to table those letters. It seems to me that she has an obligation to do so for two reasons: one, to actually substantiate the claim she has made in this Committee; and, two, we would actually like to see them. The invitation is there.

I am addressing comments that that member made when speaking to Part 6AA of the proposed legislation. Will she table those letters so we can read them? Apparently not.

I ask that that member be mindful of the extravagant claim she made in this Committee tonight that she has thousands of letters. Do members think that if I invited Mr Brown to table his certificate I would have more success? Actually, I would love to see Mr Brown’s certificate. I have never seen one of those before. Why does he not show it to us?

💬 Peter Brown: I raise a point of order, Mr Chairperson. I would be delighted to bring along to this Committee my master mariner, ship’s captain—not ship jumper—certificate. I obviously do not carry it around with me. I could also bring along my certificate signed by a National Minister of Immigration, and, if I can find it, the letter of welcome stating how delighted they are to have me here, and what have you. I challenge those members over there, because I am a New Zealander by choice; they are New Zealanders by accident.

The CHAIRPERSON (Hon Clem Simich): Thank you, Mr Brown. Although the member does not object to the references made to him, other members should not make those references.

I assume, Mr Chairman, that your instruction was to the member who just spoke, not to myself. I want to take just a moment to speak to the employers of New Zealand. Goodness knows what those good men and women must be thinking listening to the debate in this Chamber.

The member from—I think—Hamilton West, Martin Gallagher, wants to take New Zealand back 60, 70, or 80 years. If members listened to what he said—and the employers out there would have been listening—they would have heard that it was consistent with the little Englander argument that has been running through this debate all night.

When I listen to members opposite trying to justify new Part 6AA I find time and time again that the only thing they have to come back to is “They do it in England.” I thought it was 50 or 60 years ago that we stopped doing things in New Zealand just because they do them in England.

I want to say to the employers in New Zealand that National members respect them. We do not have a dim view of the way they approach things. We, on this side of the Chamber, understand how important employers are to the economy and to the people who work for them. We understand that and we understand that efforts by that Government over there—and I hear one of its Ministers squawking in the far distance—will impose onerous and expensive obligations on the very men and women in this country who create the opportunity for wealth for all.

Coming back to new Part 6AA of the bill—and being mindful of the difficulty of concentrating with that babble coming across from the other side of the Chamber—I ask members to be very clear on it. The provisions and clauses in new Part 6AA are an extension of the nanny State that is unnecessary in the lives of New Zealanders. We find in one of the clauses reference to inspectors—more inspectors.

I move, That the question be now put.