Employment Relations Amendment Bill (No 2)

I think it is interesting that for a bill that is so important and so vital to the economy, we have sitting in the chair the Hon Maurice Williamson, a junior Minister from outside Cabinet, someone with very little experience in this area, and one for whom there is so little respect that the officials have not even turned up to support him. I think it is a sad state of affairs when the Minister of Labour, herself not the sharpest pencil in the National box, is replaced by Maurice Williamson, who, I think it is fair to say, although he has opinions on lots of things, would not claim to be an expert in the labour relations area. He does pretty well on statistics, but his talent is relatively limited.

This is the first substantive part of the Employment Relations Amendment Bill (No 2). There will be some more substantive parts as time goes on and extra parts start to hit us here in the Chamber. But Labour, for starters, has tabled a set of amendments that we will be working through in order to attempt to make this legislation—I will not say palatable, but—

💬 Sandra Goudie: He doesn’t even understand it!

Sorry? What happened there? That is the woman with the brain of Paul Quinn and the voice of Judy Keall. But I am not quite sure what she said—

💬 Chris Hipkins: You’re not going to be invited to Judy’s for dinner again any time soon.

Good. We have a number of amendments here that are designed to make a bill that can never be palatable, in being part of legislation that itself is unpalatable, slightly better than would otherwise be the case. We have attempted to get the support of the Māori Party and the Greens for some amendments that are reasonable. They are not radical; most of them do not have the substance necessary to turn the legislation round but they would make it slightly better.

The first amendment, for example, would put in a clause that would require the employer to provide access to information about a decision to dismiss an employee—and that, to me, seems just a pretty basic human right. It is part of the fairness that is ingrained in New Zealanders about their relationships at work. If someone gets the sack, that person has a right to information about that decision.

There is another amendment on the issue of the 90-day trial period not being advertised as a condition of employment. I think that is pretty important, because at that stage it shows an absolute lack of openness on the part of the employer about whether that will be a condition. One of the things I say to my colleagues is that I think we will get to the point, at some stage, of good employers doing the opposite. I think that over a period of time we will find that good employers will put in their ads that they do not use the 90-day trial procedures, because they trust their own ability to recruit, and they trust the processes that flow.

💬 Michael Woodhouse: That’s just what I said.

That is exactly right. The member “Michael Woodcock” has just accepted that good employers will not use this system.

💬 Chris Tremain: Point of order—

The CHAIRPERSON (Eric Roy): I think I can anticipate the point of order—that is, that we use correct names. The member did not say “Woodhouse”, so I ask him to pay just a little more attention to that in future.

I think members on this side understand that members opposite come and go, and I get them mixed up over a period of time. Although the member is considerably more talented than the average member on that side, it is not a particularly high test. I acknowledge Mr Woodhouse, whom I have sat on a select committee with, and who regularly supplies me with bottles of wine as his team loses to Wellington-based teams. I acknowledge his name.

But I want to emphasise what Mr Woodhouse said. He said good employers will not use this system. I go one step further and say I think good employers will make it clear that they are not using this system, in order to attract better employees into their workplaces and to give people some security. As I indicated earlier, if someone is a talented person who is being well paid, has a family to support, and maybe has a mortgage, such a person does not want to go into a situation, even if it is worth a few thousand dollars a year more, where he or she could be sacked next week, without a reason and without the income necessary to support a family.

There is another area of amendment, for which we are suggesting that unjustified dismissal and personal grievance remedies may be sought when good faith has been breached. I agree with Michael Woodhouse that most employers are good employers. The vast majority of them are good, but, you know, there are some who are not. There are some who are dogs that self-respecting fleas would not sit on.

💬 Hon Tau Henare: Hotel workers union.

Tau Henare used to be on the workers’ side against those—

💬 Hon Tau Henare: The hotel workers union was the worst employer in Auckland.

There have been a few sacked since Tau Henare’s time. In those days, Tau Henare used to go toe-to-toe with employers—in fact, he used to go toe-to-toe with union officials, too, except that he just hit some of them from behind, with bottles. Tau Henare knows that it is important to have procedures when there is unjustified dismissal and when good faith has been breached.

💬 Hon Tau Henare: What good faith?

That is exactly the point; for some employers there is no good faith. When that is the case, there must be a process for their employees.

💬 Hon Tau Henare: Feeling the pressure of Unite union, are we? How’s Matt?

I understand that Matt McCarten is not very well. I want to say nothing more than that Matt is not very well; that is something we all know.

There are amendments about communication through collective bargaining, because this bill does not require good faith to occur on the part of employers. This bill takes away the requirements for good faith on the part of employers during collective bargaining.

I ask members opposite what sort of country they want to live in. What sort of New Zealand do they want? Do they want one where we can work together as wage earners and salary earners and employers, or do they want to go back to the Allan Peachey approach—the class war? I was trying to work out the analysis that Allan Peachey was giving in relation to this measure when he was speaking in the House, and it was actually a Marxist analysis. His analysis was that of someone whom I think has spent quite a lot of time looking at Das Kapital and not enough time looking at the way—[Interruption]—well, Marx and Engels—Kiwis work and what Kiwis’ values are. The cooperation, the loyalty, and the approach of working together as a team, which we pride ourselves on in New Zealand, is something that members opposite are trying to destroy, from the basis of their outdated ideology—the sort of ideology that now exists in very, very few countries that are succeeding. We just do not see that ideology in northern European and Scandinavian countries at the moment, and in other countries that are growing. Actually, this legislation is just so much worse than that of the Australians, and National members want to try to close the wage gap between the two countries. We know that they cannot do that.

I will take a quick call on Part 1 of the Employment Relations Amendment Bill (No 2), but before I do so I acknowledge the retraction of a little faux pas that Mr Mallard made in respect of my name. I can assure the Committee that I have been called a heck of a lot worse than that, but I can also assure the Committee that it is not wooden. I will just pick up on a point and tweak the paraphrasing that Mr Mallard made in respect of my comment about good employers not using the 90-day probationary provision. What I said was that some good employers will use it; some good employers will see the need not to use it. Those who do use it might use it sometimes, but they will not use it all the time. It is a thing called choice.

What we heard from submitters—

💬 Hon Trevor Mallard: Whose choice?

That is a very good question, and it is the sort of question that submitters to the Transport and Industrial Relations Committee were asked by members on the other side in respect of the choice that employees have if they are offered an employment agreement with a 90-day probationary period in it, and they do not feel comfortable about that. The answer was, of course, that they have a choice: either to accept the offer on those terms, or not to accept the offer.

💬 Hon Members: Oh!

Here we go—we hear the wailing and the gnashing of teeth. How terrible it would be that people would possibly back themselves to make their own minds up about the terms and conditions of employment, including a 90-day probationary period!

I will contrast that with Labour’s position on Mr Henare’s member’s bill in respect of a secret ballot for strikes. What Carol Beaumont confirmed was the Service and Food Workers Union position in respect of what union members can do if they do not like the rules that say there must be an open ballot process. What were we told? We were told that members are free to leave the union—if they do not like it, they can just go. People who listen to this debate will acknowledge the terrible inconsistency about saying that.

💬 Sue Moroney: They still have a job.

No, it is protection, but it is protection as long as someone wants to go with the flow, and does not possibly have an independent thought about what is going on in the union. If someone does not like it, there is the door. We have an inconsistency between choice for employers and employees in respect of the employment relations agreement, but no choice for union members if they want to have a secret ballot—“we couldn’t possibly give them that, because we don’t trust them.” I think there is a serious inconsistency in Labour’s position on that.

I will touch for the first time on the issue of access to workplaces by unions, because I think we will hear quite a bit about this in the Committee stage. The submissions went something like this: there is no problem, so why are we putting in this solution? Actually, that was not entirely what we heard. We heard that there were problems. Again, there were problems at the margins, but, as Carol Beaumont tells us, the Labour Party believes that as long as there are problems with employers they are to be locked down, but if there are problems with a few errant unions and employees, there is no need to do that. I think that is another inconsistency. We heard from fast-food outlets in Auckland that unions that had no members in certain workplaces were demanding rights of access at the most inconvenient times. We heard that they were creating high levels of disruption to the business and intimidating and bullying workers, some of whom were just 16 and 17 years old, into joining unions, and that that required a remedy.

I accept that in the vast majority of places where unions are involved, where employees are members of those unions and those relationships are strong, access is not a problem. But certain courtesies should be put in place. Even when I had those good relationships, particularly with the New Zealand Nurses Organisation, there were times when I was quite irked about the fact that I did not know that the union delegates were on the worksite, or that they had actually stopped operations during their presence. I would have appreciated the courtesy of knowing they were coming; it does not take much effort to provide that information.

As the Service and Food Workers Union pointed out, it has 21,000 contacts involving its union delegates going into workplaces every year, and it just does not make sense to put in place an overly burdensome process for arranging access. And this bill does not do that. The bill is not prescriptive in respect of the manner in which access agreements can be reached. They can be ex ante arrangements; they can be arrangements in writing in advance that say that when certain conditions are met, union access is granted, and the unions are free to come and go. But employers can also have a right to expect that they have sovereignty over the premises that they own or lease. This is an important point. They should have the right to deny access to people who have no business coming in when there are no union employees in the workplace.

We had an interesting discussion on this point, and I think we want to flesh it out further. There are clearly two differing points of view around this question of sovereignty and rights of access. The employers tell us that the workplace is their place, and they should have a right to come and go. The unions—and particularly some of the members of the Service and Food Workers Union who came into the select committee in Auckland—had a different perspective on the workplace. They saw it as their place: that they were part of a broader family, and that the union delegates—who were not employees, but were nevertheless connected to them through the union—should have similar rights to come and go freely. I do not think those two points of view are actually irreconcilable. I think that when we have good workplace relations between the employer and the employee, we can have a different point of view about that common ground, but still not impede access. I think this amendment will provide employers with an opportunity to better control some quite dysfunctional things that were being described to us in the select committee, and for that reason it is a good amendment.

I can speak for all employers, I am sure, who have good relationships with the Service and Food Workers Union, and say it simply will not be the case—the union can rest assured on this—that when arrangements are put in place, it will need to write 21,000 letters, wait 2 days, and get 21,000 replies. Those relationships are stronger than that. The bill will achieve better arrangements that will not impede access, but that will provide the sorts of controls that are necessary. Thank you.

Thank you for the opportunity to make a contribution to the debate on Part 1 of the Employment Relations Bill (No 2). This is the substantive part of the bill. As the previous speaker, Michael Woodhouse, said, there will be a lot of discussion. But the key thing I want to talk about in my first contribution is the access provision in clause 5. Michael Woodhouse has put forward the National point of view, and I want to put forward the Labour Party point of view and also the view that we heard from all of the union submitters and all of the union members who came to the Transport and Industrial Relations Committee. They came in large numbers and expressed real concern about the unnecessary restrictions that are being put on access.

What is interesting about this whole thing is that it is really a solution looking for a problem. If we go right back to the regulatory impact statement that goes with the bill, we know that the Department of Labour advised that “There does not appear to be widespread evidence of union representatives exercising their current rights to enter workplaces in an inappropriate way, resulting in disruption for business operations …” and so on. It went on to say: “The Department has no evidence to suggest that unions are not, in general, meeting this requirement,” under the existing Employment Relations Act.

The existing Act, contrary to some beliefs around this Chamber, already has a number of restrictions relating to access. There are quite specific requirements on union organisers and representatives entering workplaces, and a number of conditions have to be fulfilled. It is not carte blanche. They cannot just walk into the workplace without having regard to any conditions like health and safety or security, without telling the employer on the premises, and so on. The conditions in the Employment Relations Act actually come from case law that was developed over many years. In fact, under the Employment Contracts Act there were incredible problems and incredible difficulties with access provisions, which I think is why the unions are fearful that this restriction will lead back to those problems and, indeed, back to the courts. This will be a bonanza for lawyers.

The only reason I can see for this provision to be in this bill is that it was a National Party manifesto pledge. It was one line in its manifesto. Like many of National’s promises before the last election, it obviously was not well-thought-out; it was just one of those ideological things plucked from thin air, and there it was in the manifesto. I accept that, given that National had said it would do it, it had to do it. I accept that, even though it has decided to do some things that it did not say it would do, which are in this bill. As I said, the bill will be discussed quite vigorously, I imagine, throughout the morning as we go through it. As I say, other than that, I cannot understand why we are even having this debate about access. I cannot understand it, because there is not a problem. But this provision will create a whole lot of problems, and the Transport and Industrial Relations Committee heard about them. I do not accept the example that Michael Woodhouse gave about unions—that McDonald’s, I think, was complaining about unions being unreasonable. Under the existing law employers have the ability to do something about that. They could have stopped that behaviour. I do not condone it. But I do not see anything in this bill that will stop that sort of behaviour. If errant union officials are rushing into workplaces and disrupting things, they will do that anyway—they will do it anyway. The employers will have to prosecute them. They will have to go through the court. There will be a court decision about what this provision really means. There will be litigation all the time. It will be an absolute nightmare.

One of the other things I am really puzzled about is that the initial Cabinet paper on access that Cabinet signed off stated that this provision would not apply if a union organiser was seeking to access the workplace to look after the health and safety of his or her members. That was in a Cabinet paper dated 11 August 2010. It was advice that was supported by the Department of Labour. Apparently, it was drafted, but it never made it into the bill. If the Minister in the chair, the Hon Maurice Williamson, is able to tell me, I would like to know what happened to that provision about health and safety.

I am pleased to speak in the Committee stage of the Employment Relations Amendment Bill (No 2), and to speak on Part 1, in particular, which is definitely the substantive part of the Bill. Part 2 deals just with consequential matters.

I pick up on a comment made by the previous speaker, Darien Fenton, who said this bill was the result of a one-liner in a manifesto, was not well-thought-through, and was ideological. I absolutely refute that. In particular, on the extension of the 90-day trial to all businesses, virtually every other country in the OECD has a trial. It is actually longer than 90 days in many countries, so our 90 days is extremely moderate. The bill is certainly well-thought-through, and it will be good—good for workers, good for employers, and good for our economy, ultimately.

I will focus on the extension of the 90-day trial to all businesses. As members will be aware, in 2008 our policy really pertained just to businesses of fewer than 20 people. This bill proposes that that policy be extended to all businesses, no matter what their size. This bill will give businesses confidence to expand, to diversify, and—importantly—to employ workers who do not have a work record. Those people might be migrants, youths, students, or women returning to the workforce.

I think it is important to note that one cannot just pluck jobs out of thin air. Businesses have to want to offer jobs to workers. The only way that will happen is by giving businesses confidence that they can increase their business and employ more people.

This Government is absolutely focused on creating jobs and growing the economy. We have a number of measures on that, which include tax reform, trade—and I congratulate our Prime Minister on the free-trade agreement talks that have started at APEC—and research and development. Another way we are doing it is by boosting infrastructure.

This legislation perfectly dovetails into our Government’s plan for growing the economy, raising living standards, and moving forward as a country. It will do that by giving businesses confidence. That is really quite a simple comment. It will give businesses confidence so that they can employ more people, expand, and have greater productivity, so we as a country can more forward in the background of the economic recession that we have been facing.

Jobs are not plucked out of thin air—they are not plucked out of thin air. The surveys we have done to date show that 80 percent of employees were still in employment once their trial finished. They were not fired, let go, or dismissed at day 89. This is not a fire-at-will bill, as the Opposition likes to call it. That is absolutely the truth.

The policy is very moderate. Heavens above! As I have mentioned before, many countries have trial periods that are much longer than 90 days; they are up to 1 year in some countries. Until we had the 90-day trial, Denmark was the only other country in the whole of the OECD that did not have a trial period. We were clearly out of step with the rest of the world. We are not marching alone on this; we are with many other countries. The sky has not fallen in those other countries. This policy will work for business, employees, and the country as a whole.

The policy has been positively received. I quote just one employer who talked about this bill. He said: “I felt that under the last Labour Government the odds were well and truly stacked against small businesses. The cost of employing someone was 6 times more when they were voted out than it had been 3 years earlier … We have used the 90 day rule, but the person would have been sacked anyway—for stealing! It would just have taken a little longer and caused more stress to other employees and the business.”

A very interesting survey called What Next? National Conversation about Work was done by the Human Rights Commission. A whole lot of myths were absolutely thrown out the window. One of the myths was that employers are bastards. They are not. The survey showed that employers treated their employees like family. Let us face it: we have to have a good working relationship for a business to go forward, to grow, and to be productive. It was very much a family affair for many of those businesses. There were many other positive comments.

I will speak about the combined effects of the provisions in Part 1, but before I do that I note that we are talking about people. When we talk about employment relations legislation, we are talking about people. An employment agreement is not like any other contract. It is not about buying and selling a product; we are talking about people. When we talk about the 90-day trial and making it easier—so-called—to employ people, we are also saying we will make it very easy to sack people. I think that is important.

Caritas, the Catholic social justice organisation, noted in its submission: “Catholic social teaching does not recognise employment contracts as being equivalent to other kinds of business contract, such as for the purchase of goods or services. We recognise that these working relationships take place in a wider environment of respect for human rights.” I think that is a very powerful statement.

The principal Act is called the Employment Relations Act. It is about relationships. This amendment bill changes the balance and takes away rights from people in the workplace—I want that to be put on record.

I will now talk about the combined effect. A couple of members opposite have talked about our good old values, but I say that one of the strongest New Zealand values is a commitment to fairness. We like to think we are a country that believes in giving people a fair go and having fairness for all people. Much of our legislation has been ground-breaking in giving rights to people and making sure they have an opportunity to be engaged and to participate.

The Council of Trade Unions commissioned some research on the 90-day trial legislation. The survey asked a straight question: “Do you think that all employees should have the right to appeal if they think they have been unfairly dismissed, even if their dismissal was during the first 90 days of their employment?”. That is a very straight question. I will put on record the response to that question. The response was that 80 percent of respondents said “Yes”—they thought that employees should have the right to appeal if they think they have been unfairly dismissed, including in the first 90 days—18 percent said “No”, and 2 percent were unsure. Fairness is one of the key values, and New Zealanders believe that it is fair to have the right to challenge an unfair dismissal, even in the first 90 days.

The effect of the provisions in Part 1 will impact on those people who are already the most vulnerable in our society and in the labour market. If we get down to tintacks, it will be those who have less bargaining power. The Employment Relations Act outlines a number of key objects, and one of them specifically acknowledges that there is an inherent inequality of power in employment relations. That is a fundamental object in our employment relations legislation.

This amendment bill flies in the face of a fundamental object of the principal Act. It shows a real difference between members on each side of the Chamber. Labour members know that inherent inequality is a reality of the labour market. Members opposite think the labour market is a level playing field—that everybody has the same bargaining power. I say that those members should tell new migrant workers that they have the same bargaining power as others. They should say that to young people going into their first job. They should say that to a mother who is going back to work, having been out of the paid workforce for a while. Those members should tell those people they have the same bargaining power as, say, an information technology specialist or somebody of that nature who has had an unbroken work record over many years. There are differences in bargaining power. Those who will be most affected by the changes in the bill are those who are already most vulnerable.

It is very interesting that members across the Chamber seem to think that a “take it or leave it” employment offer is fair. Lots of other people do not think in that way. The people in Mana, for example, probably do not think a “take it or leave it” employment offer is fair. If people do not have a job, and they may be getting a benefit or they may not, depending on their circumstances, they are—

The CHAIRPERSON (Hon Rick Barker): I call the Hon Tau Henare.

💬 Hon Members: Oh, no!

💬 Iain Lees-Galloway: Sell-out!

That is what you get from that side, Mr Chair. I remember that the worst employer in my day was the hotel workers union.

💬 David Bennett: That’s right.

That is right. I wonder who the secretary of the hotel workers union was. I refer to none other than Mark Gosche. Every time I was called out to a job to assist one of the clerical workers in trouble, it was always down the road at the—sorry, Mr Chair—Northern Amalgamated Workers Union, as it was called in those days. Who was the worst employer? It was always the union. On a Tuesday I would get another call from some poor clerical worker, who was under the cosh from the employer. Guess who the employer was? It was Ray Bianchi and his mates. They were all the old-style unionists.

💬 Lynne Pillay: Not the ones like the member?

Sorry?

💬 Sue Moroney: The worst union organiser in the history of the universe.

Oh, big yawn! Anybody would think that with this bill the Government had gone back to 1951, and it was about to smash the unions on the waterfront. This is nothing of the sort. All this does is to tinker with legislation to make it more palatable to both sides, more palatable to a person, an immigrant, who is looking for a job, and who wants to show his wares, who wants to say to the employer: “Look at me. I can do this job and if you give me a chance, I’ll show you.” That is all it says.

💬 Lynne Pillay: I raise a point of order, Mr Chairperson. I think the member is bringing you into the debate.

The CHAIRPERSON (Hon Rick Barker): Members on occasions do take the word “you” a bit literally. I did not take it that the member was referring to me; it was a rhetorical question: “give me the job and I’ll show you”. It was not referring to the Chair. The word “you” is not proscribed. It is usable, but it is in its context, and I did not take offence.

Thank you, Mr Chair. The exact point that I am trying to make is about somebody who is looking for a job and who really wants a job in whatever profession or whatever job. It is about putting a hand up and saying: “I can do this job and I want to be able to show the employer what I can do.”

💬 Darien Fenton: Like Pansy?

Now we hear about Pansy. This has nothing to do with Pansy. The 90-day legislation has nothing to do with Pansy, because she has been a Minister for 2 years, for goodness’ sake. If it were about the 90-day legislation, it would have happened a year and a half ago, for goodness’ sake. Talk about timing! They are out of time. [Interruption] Who told me to sit down? There is only one person who can tell me to sit down, and she is at home.

I also want to talk about union access. You see, we have had 9 years of no manners, and no courtesies, and we are trying to say that if unions want to go into our workplace, into our sovereign territory—as my colleague Mr Woodhouse described it—it would be good manners, it would be a courtesy, to call or write and say “I’ll be there at 11 o’clock on Tuesday. How about it?”. It is manners, it is courtesy, and that is what this Government is all about, too. If that is exactly what happens now, why is there the big hullaballoo? If it is what happens now, are we not just codifying what is happening now? So why the big hullaballoo? Why the big question mark from Labour members? Or is it that they are still fighting the battles that have been fought, won, and lost back in the 1950s, 1960s, and even in the 1970s?

As I follow the speech made by Tau Henare I acknowledge the young people who are in the gallery today. They were taught at school to treat people with dignity and respect, yet they hear that sort of barrage from the Government side of the Chamber. For Tau Henare to be talking about manners is a teensy bit funny, I have to say.

I will get back to the bill. The Employment Relations Amendment Bill (No 2), as we have said before and will say again, is unnecessary and unfair. As I predicted, Jackie Blue—whom I have a tremendous amount of respect for as a person; I think she is a fair-minded person—has missed the plot on this bill. What did Jackie Blue say in this Chamber? She said 75 percent of people are keeping their jobs under this legislation. Seventy-five percent of people are keeping their jobs, but 25 percent of people are losing their jobs in their first 90 days of employment. That is outrageous.

As I look at the young people sitting up in the gallery, I wonder how they would feel if out of every 100 of them, 25 were sacked in their first 90 days of employment for not necessarily any reason at all. What does that say to young people entering the workplace? What does that say to young people who are taught to have good self-esteem and who are taught to have respect? They go to work, and for whatever reason—they put too much sauce on the hamburger, or they have an earring that the boss does not like—suddenly they are down the road with no explanation whatsoever. That is appalling.

Let us talk for a moment about the consultation on this bill. The Department of Labour commissioned a report to measure the impact of the 90-day trial period. To reflect the real consequences, over 3,500 employers were spoken to. That is OK. Labour members would say that speaking to over 3,500 employers is a really fair and reasonable level of consultation—over 3,500 employers. Thirteen employees—13 employees—were consulted on the impact. I ask members where the fairness is in that.

💬 Darien Fenton: No balance.

There is absolutely no balance. I go back to what I said before: this bill is unfair and unbalanced, as is the Government—in particular, Tau Henare.

Let us talk about access to the workplace. I tell members that as a union official the only time I had problems with access to the workplace was in the 1990s. I was threatened. I think that everyone here will accept that I am a pretty reasonable person. I know that my colleagues often say I would be one of the most reasonable people in our caucus. Am I right?

💬 Hon Member: Soft.

They call me a bit too soft.

💬 Sue Moroney: Too soft.

Sue Moroney says I am too soft. The only time I had difficulty with access, I had to call the police because an employer threatened me. We are wearing white ribbons in support of anti-violence. That was what happened when access to the worksite was restricted, because a bully-boy boss would not let me on to the worksite.

💬 Hon Tau Henare: Where was that? What job was that?

I am not going to name the place. I am not going to do that, because I do not languish in the past. Unlike that member, I do not languish in the past.

We know that when the Employment Relations Act was enacted under the previous Labour Government, the number of disputes went right down. What are we seeing under this Government? We are seeing the number of strikes go up, because this Government does not work on relationships. It does not recognise the importance of relationships between unions and employers. How many times have union officials gone into the workplace and the employer has said it knew the official was coming today, but it actually has a big order on? The employer asks whether it is OK to put off the meeting and for the official to come back tomorrow. What does the official say? He or she says: “Of course.” That is reasonable. Officials are from the union. They are there to help.

I will speak a little about the proposed provisions for restricting union access, because I think my colleague Darien Fenton made some very good contributions on that point. The proposal in the Employment Relations Amendment Bill (No 2) to make access to workplaces conditional on the consent of the employer is very problematic. It is an ideological and deliberate attack on the democratic right of wage earners and salary earners to join unions and resolve issues that arise in the workplace. It is therefore ironic to look at the explanatory note of the bill. It states: “This change is intended to increase levels of choice and fairness for employers …”. Well, of course, that change comes at a cost, and the cost is to employees. They are the ones who lose out in terms of their freedom of choice and their access to fairness in the workplace.

I hope the Minister in the chair, the Hon Georgina te Heuheu, might take a call on this; it would be good to hear from a representative of the Government why this change is thought to be necessary. I know that the Minister will want to tell the Committee why this aspect of Government policy has been put in place, because the regulatory impact statement, as well as Kate Wilkinson’s own policy paper dated 15 May last year, says: “There does not appear to be widespread evidence of union representatives exercising their current rights to enter workplaces in an inappropriate way, resulting in disruption for business operations or adversely impacting on the employment relationship between employer and union members.” That was the point just made by Lynne Pillay. There is no evidence of any need for this change. There is no evidence of abuse; there are not even anecdotal stories being told about unions abusing their current right of access to workplaces. So why is this change being mooted? I hope we can hear from the Minister, because if we do not, then we have to conclude that it is an ideological change, an ideological attack on the unions.

National might think that will play well electorally, but we will see, because New Zealanders are becoming sick of these attacks on ordinary wage earners and salary earners. We have seen those attacks already in a number of pieces of legislation, and we cannot expect to see the erosion of these sorts of terms and conditions time and time again with no evidence of the need for it. We hear pious speeches in this House all the time about how we should only ever legislate if there is a clear need. That is why we brought in the regulatory impact statement process. Members opposite say we should always be very clear about why we are legislating, but it is not clear why this provision is needed. There is no evidence anywhere of abuse. Even Business New Zealand said that this measure was not a high priority for it. It does not receive many complaints from employers about union access.

The Prime Minister tried to sell this policy to the National Party conference as one of the steps to a “more productive economy and increased employment.” Yet even he, in October, told the Council of Trade Unions that this issue was not a “driving priority”. So why on earth is Parliament here in urgency, ramming through a piece of legislation to restrict the right of the representatives of wage earners and salary earners—ordinary Kiwis—to ensure that workers’ terms and conditions are being met by their employers via meaningful inspection in the workplace? Why restrict workers’ rights to be visited and comforted by their union officials without their being impeded by employers? Why is this being done when it is very clear from the evidence that there is no need for the change?

The access provisions in the current legislation were very carefully thought through. They are there because it is necessary to ensure that union officials can check whether health and safety employment standards and what have you are being honoured in the workplace. Of course, an employer will run into difficulties if he or she is not honouring those standards. Those employers will take advantage of the provisions that Parliament will be enacting in urgency today, because only the dodgy employers will want to keep out the representatives of unions. That is plain, because there is no evidence of abuse of these provisions at the moment. The access provisions at the moment enable wage earners and salary earners to choose to be represented by knowledgable people in grievance situations.

I move, That the question be now put.

Part 1 of the Employment Relations Amendment Bill (No 2) amends the principal Act, the Employment Relations Act. I think that with all of the issues facing New Zealand at the moment, if we were to amend the Employment Relations Act, we might do something about creating more jobs. We might do something about closing the income gap with Australia. Part 1 does none of those things and, in fact, it goes in the opposite direction. I will explain why. Despite what the Government is trying to portray, this amendment bill does not create one job—it does not create one job. In fact, it makes decent working people more reluctant to actually seek to further themselves and progress into another job. It will cause people who have families dependent on them, who have mortgages to pay, who have food bills to pay, and who have school fees to pay to stay stuck where they are—

💬 Hon Tau Henare: No!

—because that is the only way they can have a guarantee of any job security, and Tau Henare knows that. He knows, and he wants—and John Key wants—New Zealand working people to stay stuck where they are. He knows that that will be the only guarantee for all New Zealanders, no matter what sized workplace they work in—that will be the only guarantee of their knowing they can put food on the table next week. The minute they take the opportunity to actually improve themselves, to take that step up, to take the risk of another job, to perhaps change careers or to even just go for progression within their own career, they put themselves at risk of the National Government’s fire-at-will bill. That is what Part 1 does: it seeks to take that job insecurity that is in small workplaces and mete it out to every single New Zealander.

I sat on the Transport and Industrial Relations Committee when this legislation was put up in the last term of the previous Labour Government. It was a member’s bill from Wayne Mapp, so we have already visited this legislation in the previous Parliament. The previous Parliament said: “No way! That is not the New Zealand we want to create.” We heard that something in the order of the massive figure of 200,000 New Zealanders every year change jobs—or used to. We can double it: 400,000—have I got it hugely under? Every year, 400,000 New Zealanders used to change their jobs, and change locations. Maybe it was to get a higher wage; for whatever reason we had that type of labour market.

I predict that that will come to a screaming halt. In fact, we know that it has come to a screaming halt already, but it will get worse, because who would do that when they have their family dependent on the income they bring in? Who would put themselves at risk? Certainly not the people that we need to come from overseas to be nurses in New Zealand, for example, and doctors, teachers, and people whom we need in order to make sure we have the sort of services in this country that New Zealanders rely upon. Are those people going to take that risk, knowing that they could face, for no reason at all, being told within the first 90 days that they are just not suitable?

It may be that someone just used too much sauce. When we had decent law in this country and fair legislation under a Labour Government, if I were to use too much sauce the employer would be required to tell me that I had used too much sauce. The employer would have a conversation with me about the hollandaise, or the aioli, or whatever type of sauce it may be. The employer would actually have a conversation with me, whereby I would come to realise that perhaps I had used too much sauce, or perhaps I could say to the employer that the reason I put on the amount of sauce was that it was not covering the fish properly. We could have a normal conversation and sort it out in the workplace. I would not have to lose my income, as one chef did because he put on too much sauce. There was no conversation, no discussion at the workplace, but he lost a job. I am really sad that Michael Woodhouse cannot understand the impact on working people of not having a job.

Mr Chair, mōrena. Te pai hoki e tū atu pēnei tonu e kite atu te ngārara e mau atu mō ngā tangata e whai atu i te mahi.

[Good morning, Mr Chair. It is really good to stand so as to see the monster that people seeking employment have to pursue.]

The Employment Relations Amendment Bill (No 2) is one of the most important and relevant issues at this moment. We have seen the Warner Bros debacle and we have seen other debacles, and the unions are getting the blame for them. I was really pained to hear the speech from the chair of the Māori Affairs Committee, which I sit on. I think he does a wonderful job, and I can assure members that if this bill had been referred to the select committee, we would have done something about it. But somebody has not done anything about this bill, and it is shameful. People will be rolling their eyes in Blackball today, people will be struggling in Te Atatū, and people will be wondering and pondering in Wairoa. Let us talk about the workforce.

💬 Hon Tau Henare: Where? Blackball? Does anybody live there any more?

That Māori member opposite should understand better. And I mihi to the Māori Minister in the chair, the Hon Georgina te Heuheu.

Let me point to some real facts. The 90-day bill was supposedly a test to work things out. It jumped from being a test to the whole group of employers being allowed to set sail on workers. This is one of the worst bills that this debating chamber has ever seen. It is an extension. All we have seen from this Government are extensions that hurt families and ruin and wreck their lives: the extension of GST, the extensions provided in this bill, and the extension of payments to big companies who put their money at risk, and the Government finds $1.75 billion for them. Helping workers is not in its psyche. Mr Tau Henare especially should know better. He has been a union organiser and he knows where the people are at.

I will give people some clear facts about what this 90-day legislation will do. It is unfair, it is unbalanced, and it is uncoordinated, and it is unclear why the Government is doing it—supposedly. But those who know about the labour market know that this is one of the biggest jack-ups in this country in relation to the workplace. It is unfair and it is low-down dirty. I will tell members something from a Māori perspective: nearly 42 percent of Māori women who are between the ages of 15 and 23 have nothing. They are not in work, not on benefits, and not in study. When we add together the capping of study in universities, the changes to make sure that benefit tests are totally unfair, and the introduction of this major monster to the workplace, I do not know how those people opposite can come to work and say to their colleagues in the Chamber “Good morning”. Shame on them! This bill is an outright disgrace.

The Māori unemployment rate is now tracking at 17 percent. It is 1 percent behind the rate it was at when National last left Government, when we ran it out of town and it left a shambolic mess. This bill is adding to it. What do members opposite have to say about that? The number is three times the mainstream average. What do they have to say about that? People seem to hide away from it, as if it does not happen. I say the National members should tell that to the 190 people who have had only 9 days’ work this season at the freezing works in Wairoa. They should tell it to those people who were put out on the streets for 9 weeks. They were just trying to prove the basic issues of the right to collectivise and to make sure that they maintained—not extended—the rights they that had. Those rights are fundamental; they are about fairness, equity, and all of that.

The miserable member opposite, Louise Upston, stood up to call this debate to an end. Shame on her! I see the Minister shuddering in the chair, but she knows that it is downright truthful to say that Māori women are really struggling. I have been to food banks, and it reminded me of the 1980s.

💬 Hon Tau Henare: What have you got to go to food banks for?

People need food banks, I say to Mr Henare, because this sort of legislation sends them there. It stops them getting into work, and the displacement factor that is behind a whole lot of other legislation that his Government has pushed through in this term is helping that. This bill is about the rich getting richer, it is about the poor getting poorer, and it is about trying to pull the rug out from under the unions, which is the one platform that many workers have to get by. What is so wrong with unions?

I move, That the question be now put.

The CHAIRPERSON (Hon Rick Barker): I have had a good, thorough look through the bill, and it seems to me that almost everything of substance is in the first part. There is not much anywhere else. So, having said that, I am prepared to allow this debate to go on a little longer. But I say to the Committee that on the other parts members can expect pretty short shrift from the Chair and a closer look at things.

I appreciate that National members do not like having to debate employment legislation, because they know that what they are doing is absolutely unfair and absolutely not required. The changes that they are making in Part 1 of the Employment Relations Amendment Bill (No 2) are ideological, and there is no other basis for them.

I start by talking about the provision that removes reinstatement as the primary remedy for personal grievance claims. I will talk about the 90-day issue a bit later on, but this bill extends that provision to other people. We have been talking a lot about the first 90 days of employment, but what happens when someone gets into the period of employment when they are past the first 90 days, something happens, and a personal grievance claim is taken? If the employee is deemed to have been unfairly treated—for example, if they were dismissed unfairly and the Employment Relations Authority ruled in their favour—it would seem only fair that they could be reinstated in the job they should never have lost in the first place, if that was what they wished. This legislation removes that ability. This bill states that when someone gets past that first 90 days all that an employer needs to do is get rid of someone, and it does not matter if it is unfair, because now the employer will not have to take the employee back, even if there is a ruling that the person should never have been dismissed from his or her place of employment.

In a way, this bill almost extends the 90 days in terms of removing that security for employees. It says to those employers out there who want to get rid of someone very easily that they can do it because they will not have to take the person back, even if they were wrong in removing the person. I cannot imagine why National thinks that is fair. We know that employment law is all about balance. We have to balance the rights and responsibilities of the employee versus the rights and responsibilities of the employer. National thinks that employees should have to bear all the risk in an employment relationship, and that they should have no security in that relationship, whereas Labour believes we have to strike a balance in the middle that is fair to employers and employees. Neither side will get everything that it wants. That is part of being in the relationship, but Part 1 drastically skews the rights towards the employer against the employee.

The contribution from Tau Henare just showed how incredibly out of touch this Government is with the reality for workers. He asked why, if Labour said unions were now really good in terms of access in the workplace, we were fighting the change. We are doing so because that is not the case in every circumstance. This is about a worker’s right to support when something goes wrong in the workplace. It is about a worker’s right to call the union when something happens: when the worker is given an unfair employment choice or is worried about health and safety. National says that workers should not have access to their union without the approval of the person who may well be the problem. It is in those circumstances that the protection of the law is incredibly important, and that is what is being removed in Part 1 of this bill.

We know right now that unions are voluntary organisations, and they do not want to get offside with bosses. They do not want to have a bad relationship with employers. They work with employers for their employees and their members, and they do so responsibly. But where there is a situation where workers need to have that support, National now says they have to get permission to have that support. A lot of people remember when workers had to go and stand off site on the footpath to meet with their union—the people who represented them—whereas, for example, a big company could bring in hordes of lawyers, and no one would say it would need anyone’s permission to have the kind of support it wanted when it came to employment law. A worker who just wants the union organiser to come in, give some advice, and maybe solve a problem now has to get permission to do that. That is a very, very dangerous move in terms of the rights of those workers and their ability to get the help they need in the workplace. It is unfair. It is not needed. At the Transport and Industrial Relations Committee, no one could come up with a single instance of where access was a problem. The officials told us that there was no problem.

💬 Michael Woodhouse: Yes they could.

That is not true, I say to Mr Woodhouse. When we dug down into it, there was no problem. When unions have had to come on site without telling the employer, there was a very good reason for it—there was a very good reason for it.

💬 David Bennett: Be truthful.

I am being truthful, I say to Mr Bennett. That member should be very, very careful, because his conduct as the chairman of that select committee was appalling on this legislation—absolutely appalling. Let us talk about the young woman who wrote to us.

I come back to the combined effect of the provisions in Part 1, which is where all the substantive changes are. I believe that the consequences of this legislation—the changes that are being made to the Employment Relations Act—will mean that we will have multiple labour markets in which rights will be dependent on certain things. Highly skilled workers probably will not have the 90-day provision imposed. One will not tell a heart surgeon moving into one’s area that they will have to have a 90-day trial period. It just will not happen to those people. But for the many low-skilled or so-called unskilled people in the labour market, it will be a “take it or leave it” scenario. It will be automatic. It will be in employment agreements. That will just be the reality, and that will be the difference between those two labour markets.

There will be a difference between unionised workplaces and non-unionised workplaces. As we heard clearly through the submission process, the reality is that these 90-day provisions will not generally apply in unionised workplaces. The reality is that some of the employers who submitted on this bill are probably not that happy about it, but it will not apply in those certain circumstances. We will see very different labour markets between those people who have work experience and those who do not have experience, or recent experience.

People coming back into work, or who frequently move in and out of work—perhaps women who have primary childcare responsibilities and who come in and out of the workplace—will potentially have 90 days of no rights on multiple occasions in their working lives. Other people may have that only a few times, or once, even. There will be big differences between the experiences of men and women due to the provisions of this legislation. For example, the Women’s Studies Association went into some detail about why it believes that the provisions of this bill will disproportionally affect women. It noted that women are more likely to have broken employment patterns and to change jobs more often. The association also noted that it is nonsense to argue that a young female worker, desperate for a job, has equal bargaining power with an employer in any business. It talked about the fact that preventing women workers access to their union by restricting the access of unions to worksites will restrict the right of women union members to secure advice and support. Many women are more likely to be working in the types of industries that are not yet unionised, so this will undermine their ability to improve their wages and conditions of employment if the access provisions are abused. The association also went on to talk about the fact that women will probably be less likely to bargain with their employers over the 90-day trial period in circumstances where there is a choice about whether there is a 90-day so-called trial period. Other submitters have also noted that the effects of this legislation will disproportionately affect some workers rather than others.

The Human Rights Commission took on the issue of what it called “constrained consent”. On the other side of the House, members seem to think that a “take it or leave it” job offer is a choice. Well, the reality is that that is nonsense, and the Human Rights Commission said that the idea that the proposed legislation rests on contract and agreement and cannot be imposed on employees who do not agree to a trial period is “unrealistic, particularly at a time of high unemployment and job scarcity”. The commission also went on to talk about the impact on women, and on migrant workers. It looked at the Department of Labour evaluation of the 90-day period, and said that even though most employers knew a trial period must be mutually agreed, they generally did not seek employees’ acceptance of a trial period. Rather, it was stated in the employment agreement, along with other terms and conditions. Thus, in practice, the job offer was conditional on the employee accepting the trial period.

The Human Rights Commission also noted the impact on employees of losing their job, without reason and without recourse, during that first 90 days. It could be for completely unfair reasons, as that will be allowable. Who will ever know? The reality is that those people will then experience prejudice in seeking subsequent work. The Human Rights Commission made that point very strongly. I think that we will have multiple labour markets, and that is of great concern to me. I think that fairness says there should be basic human rights that apply to all people in the labour market.

I want to talk about the costs of recruitment in the context of the 90-day probation period. At the select committee we heard a lot of Draconian stories of employers in sweat mines dragging along these poor people for 89 days and on the 90th day flicking them out the door because that is what employers do. The reality is somewhat different. Even if one accepts that employers are financially motivated—

💬 Lynne Pillay: Twenty-five percent of them do that.

Here we go! There is a “glass three-quarters empty” approach to the world. Lynne Pillay is essentially saying never mind that the other 75 percent who were given a go, who might have marginalised or new immigrants, got a permanent job out of it. Never mind the fact that the 25 percent who were let go might have gone of their own volition. The Department of Labour did not say in its report that they were sacked. All it said was that they were no longer employed at the end of 90 days. So it did not take into account that a lot of those short-term workers were people who decided that they did not want to work where they were and left of their own free will. No, no, according to Lynne Pillay, 25 percent of them were sacked.

I want to come back to the issue of money. The Labour Opposition talks about money-grubbing employers, and if that is the case, if employers are motivated by that single thing, the dollar, then they will weigh up very carefully the costs of hiring and firing. At the select committee we heard that, even for basic jobs in retail, the costs of hiring somebody can run into thousands and thousands of dollars. There is the cost of advertising, the cost of screening, the cost of the appointment, and the cost of legal advice. There is the cost of getting an employment agreement in place. There is the cost of uniforms, training, health and safety training, and induction, and there is the loss of productivity while someone is buddied with the new employee. During that 90-day period a substantial investment in the employee has been made. Yet we are being asked to accept that these callous employers will, on day 89 or day 90, say: “Tau you’re out the door—down the road. There is no excuse, and it doesn’t matter that we’ve invested not only several thousand dollars but several tens of thousands of dollars.”

💬 Darien Fenton: No one said that.

That is exactly what is being implied. The member opposite said that no one said that, but, actually, they did. They came to the select committee in Auckland and said that callous employers will use employees and abuse them, and then dump them.

💬 Darien Fenton: Who said it?

Members of the Service and Food Workers Union, who lined up one at a time, with the reverend on the end—I cannot remember what his name was—actually went through that process. We heard that it would be terrible. Before that particular submission we heard from McDonald’s Restaurants of New Zealand. McDonald’s said—

💬 Sue Moroney: Scrupulous record!

If the member uses her ears and not her mouth, she might learn something. She was not at the select committee hearing. We heard that those terrible employers actually have—

💬 Sue Moroney: Not from that member, I won’t.

Maybe she will learn something, maybe she will not, but if she is quiet just for once she might learn something. McDonald’s has a performance measure for its managers—it is probably related to bonuses—on the retention rate of their employees at 3 months, and they are not the only organisation that has that. It is considered a failure if an employee whom they have screened and employed is not working at the end of the 3-month period. So much for callous employers using, abusing, and turfing out their staff! They are simply not doing that.

💬 Moana Mackey: Does every employer have that?

No, but here we go again—here is the inconsistency. Because every employer does not have it, then we must wrap them all up in bureaucratic processes, but we do not worry so much about the occasional errant employees. According to Labour, we have rules for employers but not for the poor old employees. It is completely inconsistent, because it is the employer who is investing sometimes not just thousands but several tens of thousands of dollars in an employee. Nobody in their right mind, even if they are a bad employer, motivated by money, will then flick off that employee. It simply does not occur.

The assumption behind Michael Woodhouse’s speech on Part 1 of the Employment Relations Amendment Bill (No 2) is that the overwhelming majority of employers are good employers. They have the interests of employees at heart, they will spend a lot money hiring and training them, they will be very reluctant to let them go, and all the rest of it. It is true that good employers think in those terms, and they also think in terms of having good relations with the workforce and with the collective organisations of the workforce—that is, the unions. But there are also a lot of employers who do not want anyone to be pushing for better conditions, to be a member of a union, or for a union to be active on the job. They think that they can make more money if that is the case. Sometimes that is not a rational calculation and sometimes it is just that they want to be the big boss, but that does exist.

The very fact that we have such a low rate of unionisation in New Zealand, particularly in the private sector—and it is much lower than it was during the period of national awards before we had the Employment Contracts Act—is in part testimony to the fact that a lot of employers would rather not have the union on the job. Of course, we have Peter Jackson and Richard Taylor, who are prime examples of this. They are doing everything possible to keep an organised union force off their production of The Hobbit and the other productions they have, and they have been reasonably successful to date in doing that. That attitude is not unusual amongst employers. If that was not the case, then I ask why we have this provision on union access to workplaces. We have the situation where union access has worked pretty well so far. The unions have walked on and off jobs all over the place. They talk to their members without any great problems. Of course any good union official is very sensitive to the fact that he or she should not disrupt the work process more than is necessary. There is often somewhat of a disruption of the work process by the very fact that union officials have to talk to workers who are on the job for 8 hours a day, or whatever it is, but that is minimised.

Now we are putting in procedures that will seriously disadvantage unions in getting that access in that they can be delayed for up to a couple of days. The procedure that many union officials work on is to go to perhaps eight worksites a day and have a bit of flexibility as to when they arrive at the next worksite, because they do not know exactly what the issues will be at the worksite they visited at, say, 10 o’clock. It might take them half an hour or 2 hours to work through the problems at that particular worksite. They have to have that flexibility, and they operate in a situation of reasonableness and through notification of the employer in terms of access to worksites. But all of that will be thrown up in the air by putting all the power back on to employers and by allowing them to delay union officials for a couple of days. That provision will disadvantage the unions.

Other provisions, like the removal of reinstatement as a primary remedy in personal grievances, will push things back against the unions, too. A lot of employers want to get rid of, particularly, the more stroppy, active union officials, so what will they do? They will say that they will sack that union official. It will perhaps cost them a bit of money at the Employment Court, but with reinstatement not being a primary remedy any more, they will have got rid of that union official. They would value that result more than the $5,000 or $10,000 they might have to pay in compensation. That is biasing everything against the unions, too.

With regard to the 90-day provision, I think Michael Woodhouse said that job applicants would have to agree to the 90-day provision in the employment agreement. But unemployed workers—and the unemployment rate is running at about 7 percent—can find it hard to get a job, and they will not say: “I will take this job that you have kindly offered me, but you need to cut out the clause that says there is a 90-day trial period.” If they do that, an employer will thank them very much and say that he or she has not quite decided who to hire and will come back to the worker on that one, but the employer will never come back. The 90-day trial is not really a voluntary arrangement, and if that worker shows a bit of a disposition towards the union and perhaps even joins the union, come the 75th day, 85th day, or 89th day, the employer will just get rid of that worker.

I move, That the question be now put.

Although I am critical of the bill, I will raise something that I believe was overlooked at the Transport and Industrial Relations Committee. I am particularly pleased to see that the Attorney-General is the Minister in the chair, because he is a details person—like me—and I am sure that once this matter is pointed out, he will agree. If the Minister and the Committee could look at new section 20A, which is to be inserted in the Employment Relations Act by clause 6, they will see the words, “the employer or the representative of the employer must advise … the union of the employer’s … decision as soon as is reasonably practicable but no later than …”, and the following words were changed at the select committee from “2 working days” to “the working day”. The section now refers to “the working day”.

💬 Hon Christopher Finlayson: Clause what?

New section 20A(2)(b) in clause 6. The Minister will see that the words “the working day” are underlined. Then section 20A(2)(c) refers to “within 2 working days”. The phrase has not been changed there to “the working day”.

💬 Hon Tau Henare: Is this the calibre of the union movement?

If the member would just be quiet for a minute, I will point out to the Minister in the chair that, under section 20A(3), the provision requiring 2 working days has been amended to “no later than the working day”. I feel very confident in saying in light of section 20A(2)(b) and (3), which refer to the day after, that either there is an error or it just has not been amended. I can see that the Minister has already picked up on that. He is nodding wisely. If we can have that fixed, that would be good. I thank the Minister for that.

While I am on this clause, I also request that very serious consideration be given to the other very, very good amendments relating to union access that have been put forward by Trevor Mallard. They particularly refer to some reasons where access would not be able to be declined, or where prior consent does not have to be gained. One amendment would add the words “unless the access is required for urgent health and safety matters”. That is really important if otherwise a whole day is spent waiting. If it is an urgent health and safety matter, such as an unsafe machine, and the union is called in, it is very important for consideration to be given in those circumstances.

Another amendment would add the words “unless the access is required for matters relating to harassment or discrimination of any employee”. If we look at the worst-case scenario, where perhaps a woman worker is being sexually harassed, she will want to call the union organiser in to discuss that matter. It is absolutely untenable, we suggest, that that worker will have to wait for the next day. If it is about harm to employees, or where the health and safety of employees is paramount, we say that it is very important that in those instances, prior consent for access is not required.

Another amendment would add the words “unless the access is required for matters relating to redundancies or potential dismissals or where the union representative is seeking to represent a worker in an employment dispute.” I can put my hand on my heart and say in many cases if the union comes in, the matter can be resolved without that worker losing his or her job, and without the situation escalating, rather than bubbling, bubbling, bubbling over 24 hours into a seriously dysfunctional one.

So I request that the Minister, although he has accepted one amendment, look really carefully at these amendments. I think they are very, very good amendments. Certainly, we would rather the bill did not come into effect at all.

I am pleased to speak in the Committee stage of the Employment Relations Amendment Bill (No 2). Albeit I am addressing myself to clauses in Part 1, I will go back to some basic points on industrial relations.

At the end of 2008 this country voted for a change of Government. People voted for a change of Government on the basis that some of the best things that the previous Labour Government did in this country in our 9 years in office would be retained by the incoming National Government, according to the party’s promises on the hustings. In this legislation and in every move on industrial law that National has made since it came into office we have a concerted attack, a concerted chipping away at the rights of the worker. Even more than that, it has been undermining the way of organising and running a society.

I will take a moment to move back from some of the specifics of Part 1 to talk about some of the principles behind an approach to industrial relations. The previous Labour Government was intent on developing, promoting, and sustaining a tripartite approach to industrial relations—and not just industrial relations, but promoting and underpinning an inclusive approach to all of the significant social questions and economic questions before the country. We engaged with Business New Zealand, we engaged with small businesses, and, in fact, we set up the Small Business Advisory Group. We engaged with the Council of Trade Unions and those unions that are not affiliated with the Council of Trade Unions, but predominantly with the Council of Trade Unions as the peak body representing the largest number of workers in this country. We began to build and develop a very stable and very sound structure and basis for an inclusive society.

That is the kind of industrial relations that I aspire to and that I practised in my time as an industrial relations practitioner, both as a union official and as an employer representative—an employment relations manager.

That kind of approach to industrial relations is the only kind of approach that will provide stability, and stability is important for workers. Stability is important because workers need the security of a job. They need to know that their job is secure and they need to know that the conditions they are working under, on which they budget from week to week, will remain the same or improve. The conditions should not be diminished or cut away so that suddenly people find themselves with less money every fortnight to pay the mortgage than they had before, rather than more money, as we would all like the situation to be. Stability is important for employers. Employers need to know they have a stable regime and a stable regulatory structure around them in order to plan their operations.

This debate is not about being anti-employer; I think Mr Woodhouse was keen to paint Labour that way earlier in the debate. It is certainly about being pro-worker. But more than anything, it is about wanting in New Zealand an industrial relations framework that provides the greatest stability for the greatest number and for the greatest good. This legislation does not do that. This legislation diminishes, chips away, and erodes workers’ conditions and workers’ rights in a way that we have not seen since the 1990s. We hoped we had put the years of the 1990s behind us. It is due to the short-sightedness, malevolence, or perhaps ignorance of the Minister of Labour that there is no understanding of the impact of this steady erosion of workers’ rights. Perhaps it is simply an ideological difference that is to be pursued at all costs, which prevents this Minister from seeing the big picture around industrial relations.

This kind of legislative change is not needed in order for industrial relations to proceed smoothly, cooperatively, and in a negotiated way to the benefit of all players. I would like the National Party to identify where the drivers for these moves are coming from. Where are these drivers coming from? Business New Zealand has said that it does not need a number of measures in this legislation; it is OK without them. Business New Zealand has said that it is OK without the requirement of medical notes or some kind of note from mother for absences. It is OK with that. It has good systems going and it does not need this kind of intervention. Business New Zealand has said that the extension of the 90-day trial period to all workplaces in New Zealand is not necessary in its industries, because it has a reasonably good arrangement with its unions. It does not have a problem with giving unions access to workers, because it has a good cooperative relationship. It is not always smooth, but it has a fundamentally respectful relationship with the unions that represent its workers. It has no problem with giving unions that access.

So where have these drivers come from? This is an ideological bombardment from the National Party, which is reverting to type. But I suggest that even some of its most strident supporters do not require some of this legislation. I ask National to look again at what it is doing with this erosion of workers’ rights. It is destabilising industrial relations. It will only cause a swing back when Labour comes back into Government. When we do that—

💬 Hon Tau Henare: That ain’t going to happen in a hurry.

—next year, I say to Mr Henare—the employers will not be grateful to National for having this flip-flop situation, which was characteristic of the 1970s, the 1980s, and the 1990s. We were growing out of that kind of childishness, and I wish National would grow out of it also.

Our vision on this side of the Chamber is for a much more stable, a much more cooperative, and a much more respectful balance in industrial relations than this legislation provides. This legislation provokes unrest, it provokes industrial action, it provokes stoppages, it provokes downtime, it provokes a loss of income, and it provokes a diminishing of margins for employers. The National Government has only itself to blame if it thinks that some of the people it takes to be National supporters will thank the Government for this.

This is no way to run a country. This is no way to run the most important powerhouse of this country. In this legislation the Government is simply saying that cooperative, grown-up, respectful relationships between employers and unions, and between industry and peak bodies like the Council of Trade Unions, are not required, are not necessary, and are out of date. National will rue that day.

This bill will provoke unrest. It has already been seen to provoke unrest, and that is no way to run a country. If this Government had half a plan about the economic future of this country, this legislation would not be before us now, because it simply takes us backwards. It does not advance anybody. It certainly does not advance workers. It diminishes workers’ rights and improves nobody.

I would like to address the issue that was raised by the member Lynne Pillay in her last call in respect of clause 6, which inserts new section 20A of the Employment Relations Bill (No 2). Before I go to the details of this, I say there is a bit of a preamble to it. The bill as it was introduced prescribed what could have been a maximum time frame of up to 4 working days for a union to be given a reason for access to be denied. In the consideration of the bill, I believe it was the member Carol Beaumont who raised a concern about that being unduly prolonged. I supported that call. The officials, to their credit, realised that the initial policy intent was for that not to be the case but somewhere in the translation from policy to the bill the duration was doubled. They were very happy to recommend amendments that reduced the time frame for the whole thing to be wrapped up to within 2 working days.

If we then step through the legislation as it stands, bearing in mind that the goal is for any decision and the reasons to be communicated within 2 working days or deemed acceptance in that time, we see that the obligation is on the employer to provide a response the working day after. If I as a union representative asked for access in writing on the Monday, the obligation is on the employer to have responded by the end of the working day following—that is, the end of Tuesday. If the employer does not do that, then by the Wednesday access is deemed to have been granted. In terms of clause 6, it is necessary to keep section 20A(2)(c) referring to within 2 working days. In that scenario, the Wednesday is within 2 working days and works mathematically. If permission is specifically denied the working day following, then the obligation falls on the employer under 20A(3) “as soon as is reasonably practicable but no later than the working date after the date of the decision,” to provide a reason why. That would also have been the Wednesday.

So in that scenario everything is wrapped up on the Wednesday, but the clause that the member thought may have been out of whack with the rest of the legislation is quite consistent with the intention that the select committee wanted to recommend back to the House. I suggest that no change to the bill is necessary.

I want to add one important point to my very good colleague Maryan Street’s contribution to the Employment Relations Bill (No 2), which I thought was very powerful. I hope that the National Party was listening. The other fundamental thing about Part 1 of this bill that has not been referred to this morning is that we have talked about fairness, but with the 90-day trial period we are denying access to justice. With this bill we are saying that people will lose their economic livelihoods, without being told a reason why or being able to challenge that reason. That is a pretty fundamental thing in New Zealand. It is a fundamental legal understanding in New Zealand that if one is treated unfairly or something happens to one in other walks of life, one has the right to challenge it and access justice. I think that is one of the very strong oppositions that we have.

I want to give an example that came out this week. I know there has been a bit of discussion about the sauce-and-aioli guy, but an example came out earlier this week of a farm worker. He took on a job milking cows, moved to a farm cottage, and took his wife and two children with him. He signed an employment agreement that had a 90-day trial provision in it. He thought at the time that there was not much to worry about. He noticed it and he signed the agreement, but he thought it would not apply to him. He took his children and his wife to live on this farm. The children settled in at the local school. They really loved it and thought it was fantastic. They were having a wonderful new life on the farm.

A couple of months into his employment, he had a disagreement with his employer, the farmer. It was over the way the employer, the farmer, was talking to one of the farmhands, who was a migrant worker. He was very nasty to this guy, so the worker decided to stick up for this guy, which is what we expect people to do. If people are being bullied, it is a natural instinct to stick up for a workmate, a friend, or a neighbour, and that is what he did. He asked the employer: “Please do not talk to this guy like that.” The next morning the farmer came round the milking shed and said: “I’m sorry, but I’ll have to let you go.” The worker asked for a reason, and the employer said he did not have to tell him because he is employed under the 90-day trial period.

The worker had done nothing wrong except stick up for his workmate—he had done nothing wrong. There was nothing he could do about it, because he had signed the employment contract. Let us be clear about this: if employers get the paperwork right, there will be people who get fired like this. It did not apply to the sauce-and-aioli guy because the employer got the paperwork wrong, but employers will get it right and employees will be fired. I have heard from many, many workers in that situation.

This poor guy had to pack up his family, leave his farm cottage where he was living, and tell his children that they would no longer be going to the local school and that they were leaving. He felt a real sense of shame for leaving a community where he was just starting to build relations in. He had to try and explain to his children why they had to leave.

💬 Carol Beaumont: Very disruptive for them.

It disrupted their lives, their education, and this guy’s economic livelihood. The upshot of the story is that he has gone to Australia. I know that members opposite will say that there are longer trial periods in Australia, but fundamentally for him it was an issue of fairness, of the impact on his children, of the impact on his livelihood, and of the impact on his career as a sharemilker in the future. There was an overwhelming sense of frustration and anger that we live in a country now where workplaces of fewer than 20 workers can be treated like that and we will be living in a country where every worker in the whole country can be treated in the same way. Yes, apparently it will not happen; we know that. But the fact is that there are employers out there—and we heard it in the Transport and Industrial Relations Committee—who want this extension not only in all workplaces but also for it to be the default provision. They want more; they always want more.

💬 Sue Moroney: I think Kate Wilkinson does too.

I think Kate Wilkinson does too. In fact, I heard from another group of workers where four of them were working for the same firm in Napier who have been fired under the 90-day trial provisions.

I move, That the question be now put.

In this debate in the Committee stage of the Employment Relations Amendment Bill (No 2), I want to pick up a point about the 90-day trial period, and the very significant point made by my colleague Darien Fenton in relaying that example. The comment was made about Australia. Earlier, Dr Jackie Blue asserted, of course, that the 90-day provision is very reasonable, that everywhere around the world there are these no-rights provisions, and, in fact, the provision here is even quite moderate in being only 90 days. I have to say there were a number of submitters who quite clearly tried to get us to recognise that we need to compare apples with apples. Caritas, which I mentioned earlier in another regard, said: “Look, we are not specialists in employment law, but we thought, given that the Government had asserted so strongly that the justification for the 90-day provision was that it applied everywhere else, that we should check it out.” It made contact with the equivalent of Caritas in Australia, and it was particularly interested in looking at the situation of small employers. It checked with the Australian Catholic Church’s Office for Employment Relations, and it was told that matters of natural justice and procedural fairness during probationary periods in Australia are covered by Australia’s fair work and adverse action provisions. A complaint under the adverse action provisions can be taken by any worker—including job applicants, so the provisions are quite broad—who feels that he or she has been unfairly treated. Then a range of actions flow from that. Caritas was then referred to the Australian Government website to check that out a little more.

Once Caritas followed that through, it looked at the advice provided to employers and employees about the legal obligations around the termination of employment. It found that there is a provision applying to small businesses, the Small Business Fair Dismissal Code, which provides a whole lot of things and would stop the absolutely patently unfair examples like the one that my colleague Darien Fenton just gave—a real life story involving somebody sacked not for their own action but for sticking up for somebody else. I reckon most New Zealanders would find that absolutely disgraceful, but they need to know that that is entirely possible under this legislation.

I will also talk a little bit about union access to workplaces. Some cute statements have been made across the Chamber about our position on union access to workplaces. The difference that this law will put in place is that it will give an employer the right to say no to access. We were given example after example in the select committee of how the current access provisions, which do not give the employer the right to just say yes or no but have a number of reasonableness provisions, are working effectively where there are relationships. People described for us the fact that the union official will generally make contact with the manager to discuss what a reasonable time for access might be and whether access should be provided in particular places or to some groups of workers at some times and others at other times. That is genuine and that is what happens at the moment. I know that from my own experience and from the experience of other officials. There is not a problem. That was made absolutely clear by officials, and it was made clear by Business New Zealand.

This new access provision is purely an ideological thing, but the worry is its effect. It may not be widely used, but it will be used by employers who do not want to see workers accessing information, workers accessing expert advice, and workers wanting to organise themselves to get a better deal. This is the last thing we should be doing if we are serious about closing the wage gap between Australia and New Zealand. The real way to close the wage gap is obviously to lift wages in this country. How do we go about that? We do not go about it individual by individual by individual. That is not the way to lift wages. The way to lift wages is to lift the wages of groups of workers through collective employment agreements. How do we do that? We do that by workers joining together in unions, by organising, and then by seeking to negotiate a collective employment agreement. If bad employers have the right to stop unions accessing workplaces, that will not happen.

At this stage I want to draw the Committee’s attention to the set of amendments in my name that the Committee will work through, because we have not had very much reaction from the Government in respect of them. I turn in particular to those to do with union access and the suggestions that have been made there. One of them makes it clear that access cannot be denied if it is required for the conducting of a secret ballot. We have had some legislation that is working its way through the House in the name of Tau Henare—unnecessary legislation, it is fair to say—which has a possibility of being passed, that requires a secret ballot. The member knows that for the secret ballots that he is now requiring to be held—which are mainly held anyway—there is a need for union access in order to conduct those ballots. What we want to be careful of are employers who unreasonably deny access in order to avoid the ballot, in order to avoid a strike. I think what would probably happen in most workplaces would be that employees would walk off the job and have their ballot off the job if that occurred. I think what we need to make clear in the legislation is that people should act reasonably and work their way forward.

There is another amendment that goes to the question that was raised by my colleague Lynne Pillay. It is our suggestion that the reason for denying access must be given on the same day as access is denied. I do not think that is an unreasonable approach. If someone is saying “No, you can’t come in.”, then asking why at the same time is not unreasonable. Most employers are bright enough: if it is a genuine reason and if they genuinely hold a particular view as to why now is inappropriate for unions to come in, or even later in the day, then I think it behoves them to indicate the reason for that to the union officials concerned.

There are a series of other amendments here. One of them is around communication during collective bargaining. The suggestion here is that we effectively take out clause 9. One of the problems with the approach that this Government has taken under the very poor drafting leadership of the Attorney-General is the massive use of parts. In this case, there is one substantive part in what is effectively a consequential part, or a very small part. What would previously happen is that individual issues would be identified and one could vote against clauses. A bill as short as this would have, under quality drafting with someone with some integrity leading the drafting process, been drafted such that it was taken clause by clause, because although it is a bill of massive importance, it is not a bill of massive size or massive numbers of clauses, so it should have been taken clause by clause.

That would have been an opportunity for members to vote No just on clause 9. So the objective here is to take that clause out of the bill, and in that way maintain the status quo around collective bargaining. The change proposed in the bill appears to be driven by a misunderstanding of the current legal positions. Again, with the quality of legal drafting that we have from the Attorney-General, with his very poor leadership, I am not surprised that there is a misunderstanding in this area.

Some other amendments go to the non-denial of access on harassment or discrimination matters, and there could be a matter where a union official needs to get into a workplace immediately because there is a current case of discrimination or harassment. Just looking around, I see a couple of members opposite who have done constituency work in their time. Most people who have done constituency work know that every now and again one gets a case where one has some absolutely outrageous harassment of individuals. To be fair, it is generally in the case of small employers, and I want to say that it is too often the case that new New Zealanders are involved, either as the people being harassed or the people who are doing the harassing.

But some things that occur within workplaces are just absolutely unacceptable in our society. Some of these reach court, but a lot do not, because quite often in sexual harassment cases the woman—and it is just about always a woman—who is harassed takes a decision that she does not want to put herself through what is effectively a second trial. The matters often do not go to the police. But the immediate solution, the way of protecting the woman concerned, is very often through the intervention of a union official, who comes in and supports and helps to isolate and get some barriers up, and makes it clear to the employer that harassment cannot continue. I ask why a woman who is being harassed, often sexually harassed, by an employer should have to wait until the day after tomorrow. If the employer does not agree, it could be 2 days before he gives a reason for not agreeing for someone to come in.

In modern society that situation is unacceptable. However, it is consistent with the lack of rights of, and respect for, individuals that come from this Government. I think it is fair to say that Jim Bolger was not the best Minister of Labour, but he believed in the dignity of work and the rights of workers, and in human rights generally. Now there is really no one in the Government who protects human rights. The New Zealand Bill of Rights Act more or less might as well be gone, given the approach that is taken. There is not a Minister who is prepared to, within Cabinet or within Parliament, stand up for the New Zealand Bill of Rights Act and for the rights of individual Kiwis. We have come to this, and it is so sad: the Attorney-General is the Minister in the chair as we legislate away the rights of someone who is being sexually abused and sexually harassed to call in a union official. The Attorney-General of New Zealand, who is meant to stand up for those rights, is sitting here absolutely numb in his mouth. It is an improvement on his general condition, but he is sitting there.

I say to the ACT Party that it is about time it took a call on this matter too. That party has generally stood up for individual rights in New Zealand—the individual right to make a phone call and ask someone to visit. What do we have here? We have the ACT Party sitting. There is not a mumble, not a murmur, not a word from the ACT Party about the individual rights of a worker to call on their representative. We do not agree on lots of things to do with industrial legislation, but I thought one of the things ACT would have the backbone to stand up for was the right of an individual to make a phone call and to have a meeting. What do we have? Not a word from ACT. It is sitting there, a supplicant to the National Party.

I move, That the question be now put.