Holidays Amendment Bill

The debate on this part includes schedule 1. I recognise the Hon Trevor Mallard.

Only just, I think, with the bags under his eyes today, Mr Chairman.

💬 Charles Chauvel: But does he call you?

He calls me quite a few things, actually, but not normally from the Chair—it is more when he is sitting next to me in the caucus room.

As is obvious from some of the amendments that have already been tabled in the House today—and there will be more to come—the Labour Opposition is attempting in this Committee stage to improve the Holidays Amendment Bill, not to the point where we think we will vote for it, but to the point where we think it would be less offensive to workers.

I will go through some of the amendments that we are putting before the Committee so that members opposite can give them consideration. The first amendment would take out clause 13, “Requirements for alternative holiday”. Clause 13 provides: “If an employer and employee cannot agree … on when an alternative holiday is to be taken, the day must be taken on a date determined … by the employer.” The amendment would take that clause out because we believe it is unfair for an employer to have the right to tell an employee that they must have a holiday on a particular date. To give an example, they could require someone who would otherwise be entitled to a holiday during the school holidays to take time off either in the school holidays or outside the school holidays, both of which could be inconvenient. We want to make sure this is a genuine agreement, not one imposed on workers, as would be the case.

We also make clear that rather than being driven by the employer, it should come from an employee’s request. There has been a lot of talk by members opposite about choice and flexibility for workers. Well, let us test them on that with an amendment that indicates that these approaches should be based on choice. We will put forward an amendment that inserts something that was originally in the bill around the question of the changes being informed and voluntary. Again, it will be a test for National members opposite as to whether the requests, and the responses to the requests, should be informed and voluntary. That is the essence of the argument that members opposite have been making: that these changes should be informed and voluntary. The Government has removed those words.

Courts look at changes to legislation. When they are trying to determine intent, they look at phases of legislation. I can remember, going back to some of my earlier experiences in legislation—even as far back as the 1980s—the courts, in making decisions on particular cases going to what the intent of the Parliament was, looked at changes that Parliament had made as legislation was going through. I think the particular case that I can remember was a Court of Appeal case that flowed from the rape law reform legislation. The court looked at the legislation that went in, looked at the decisions of the select committee, and went behind the final words of the legislation and to the intent of the Parliament, because of the changes that were being made. It appears to be the case here—and I would be interested in comments from the Minister in the chair, the Minister of Police, or other members opposite on whether it is the case that the removal of the words “informed and voluntary” could be taken to mean that, in fact, it does not have to be informed or voluntary, because those words have been removed. The other related suggestion around the proportion of annual holidays to be paid out is that they must be made in the absence of duress. It is certainly the view of the Labour Opposition that these decisions should not be made under duress; they should be informed and voluntary, and made in the absence of duress. There are also questions around how often these arrangements should be used; a series of amendments gives the Committee the opportunity to make a determination as to how often within a period of continuous employment these particular arrangements should be made.

There has been a lot of discussion within the House on the question of whether the current arrangements are adequate if an employer has any reasonable cause to believe that someone is throwing a sickie when they are not actually sick, and therefore on the question as to the necessity of this provision. I draw the Committee’s attention at this stage to the regulatory impact statement as it relates to this group of clauses, in particular. It makes it clear that no case has been made, and there has been a determination of the Minister rather than evidence. I think we know this. We have all heard the evidence of Business New Zealand and others, who have said that this is not a priority area for them, and it is not an issue that they think is important. I think it was just a case of John Key being slightly short of material for a speech to the National Party conference, and therefore he decided to give wage earners and salary earners a kick. That is one of the things that Tories like doing at their annual conference: kicking people who work for a living as opposed to being born to rule, as a number of people there are.

There is the question of which days are determined, and we will be focusing on a number of public holidays as we move our way through. I think it is fair to say that there are a few things in this legislation where there is agreement across the Committee; I think there might be about three issues. We should be dealing with this bill in a proper way, clause by clause. I might say that it is getting to the point of ridiculousness to have a 19-clause bill divided into two parts. It is totally unnecessary. Substantial clauses in the bill are agreed on, and the Opposition is placed in the position of voting against stuff it believes in because it is tied up with clauses that, in fact, are clearly contrary to what most New Zealanders want. If the Attorney-General, who is in charge of the Parliamentary Counsel Office, dealt with that in a way that had some more integrity, I am sure we could work through legislation in a way that I do not think would take any longer, but where we could have genuine debate on the particular clauses and the way they fit, have votes on each of them, and deal with each of them on their merits.

At doctors’ rooms in Wainuiōmata people often have to wait for 2 or 3 weeks for things that are currently non-urgent, and even for urgent things it is sometimes hard to see a doctor within the same week. We already have quite a few people from Wainuiōmata going to accident and emergency departments for things that are strictly not accidents or emergencies. What this bill will do is put pressure on general practitioners’ rooms, but, worse than that, people who have illnesses that are infectious, like colds and flu, will be wandering along and spreading them around. They will be sitting amongst pregnant mothers and spreading their diseases all over the place. It is absolutely unnecessary, and it is all because John Key had nothing to say at his conference.

I am very happy to take a call on Part 1 of the Holidays Amendment Bill. I will focus on an issue that has not, as far as I am aware, been discussed at all either in the second reading or in the Committee stage so far. Yet as far as employers are concerned it is probably the single most important change that was made to the 2003 Holidays Act and the single most important change in this bill—that is, the issue of relevant daily pay.

In 2003 I was the vice-president of the Private Hospitals Association. It was an organisation that represented not only surgical hospitals but also a very wide range of the aged-care providers in this country. They were not the residential villages or retirement villages but rest home and hospital-level care for the elderly. We were absolutely emphatic about this issue, as many employers were. Regardless of the merits of what was being attempted by the relevant daily pay calculations, the calculations created some serious disincentives.

Firstly, it was completely unworkable from a payroll perspective. It simply was not possible for a payroll system to calculate relevant daily pay for organisations that ran around the clock, 24/7, as hospitals and aged-care providers do. Thanks to collective employment agreements, a number of allowances were being paid for evenings, night shifts, and weekends. The possibly unintended, but certainly perverse, outcome of the relevant daily pay clause, as it is at present in the Act, was that staff would be paid more for being sick than they would for being well and at work.

💬 Darien Fenton: That’s not true.

It is absolutely true. If time allowed, I would give that member the numbers. Somebody working a mixture of shifts—who might work an evening shift, the odd weekend shift, the odd night shift, and then was rostered on a day shift—is, according to the Act, required to be paid a relevant daily pay that includes all of the allowances that they earned on those swing shifts in the previous 4 weeks. Somebody on a base rate with no allowances who calls in sick has to be paid more than that for staying at home.

What did that do to the sick leave provisions? Well, every employee is honourable and I am sure that they did not intend consciously to take sick leave when they were not sick, but two things happened. Firstly, sick leave went up, and it went up quite considerably. But what also happened was really interesting, and it was observed across the country: the pattern of sick leave changed. Whereas there was usually an even distribution between days, nights, weekends, and so on, the sick leave shifted into the day shift. Who knows what might have been happening? Certainly the payment for being sick on the day shift was greater than what would be earned if an employee had come to work.

That has been the case for nearly 7 years, and it needed to change. It was one of the things that the working-group that the Minister set up was charged with addressing. It was their No. 1 recommendation. Although the Minister and the officials worked the solution into the bill in a slightly different way, I think it represents a vast improvement to what we have now. The average daily pay calculations are much more straightforward. It is likely to take out those perverse incentives, at least to some degree. I offer the view that we can still take a journey that will merge the annual leave, sick leave, and alternative day provisions in the future. But this is a huge advance compared with what we have.

In the time available I will touch also on the issue of the employer determining when an alternative day might be taken. I offer a story that was given to the Transport and Industrial Relations Committee by a primary industry company. A whole department of workers who tended to be on the same shift wanted to take annual leave to go to the races. The employer, quite rightly, said they could not do that, as the disruption to the business was too great. They had to keep things going, and the employees were a whole shift. They could not do that. What did the employees do? They all took their alternative days and the business had to shut down so that those guys could go to the races. Members can draw their own conclusions about whether that was a good thing or a bad thing, but someone has to determine it, and when it comes to the running of a business, I am very comfortable that it is the employer.

I am pleased to take a call on Part 1 of the Holidays Amendment Bill, which is the substantive part of the bill. It is the guts of the bill; it has all of the changes that the Government is planning to make to the rights of wage earners and salary earners in New Zealand to their holidays and sick leave. We do not disagree with everything in the bill, but there are three fundamental things that we do disagree with.

I will start with the fourth week’s annual leave, if I may. I go back to why the fourth week’s annual leave was brought in, in the first place. Yes, sure, it was Matt Robson’s member’s bill in the Labour-Alliance Government, and that was fine. But it got through only because Labour supported it. Did National support it? Did Tau Henare’s party support it? Did the ACT Party support it? It is a bit rich now to be making speeches about the fact that it was a bill—

💬 Hon Tau Henare: What? What are you on about?

That it is a bit rich. It would never have got through this Parliament if Labour had not supported it. In fact, it was Labour policy.

💬 Hon Tau Henare: It was never Labour policy.

Yes, it was, actually—yes it was. It was Labour policy.

The fact is that here we are in 2010 with 4 weeks’ paid holidays for all wage earners and salary earners in New Zealand. If we had left it to National or the ACT Party, would that have ever happened? They voted against it, did they not? I remember John Key said it was a bribe—he said it was a bribe. All it was really about was recognising that if we were serious about trying to keep wage earners and salary earners in New Zealand and making life attractive for them in their jobs, one of the things we could do at the time was to catch up with Australia on providing decent annual leave. Australia, after all, has had 4 weeks’ annual leave since 1974. It was around about that time that New Zealand workers got 3 weeks. I also remember very well during the 1990s that Max Bradford, who wanted to get rid of all annual leave, wanted to put all of it up for grabs and sell it off. So it is a bit rich for National to be getting all precious about the fact that workers have choice around that. The only reason they have choice—which is not true, anyway—or the only reason we are even debating the fact that there is a fourth week’s leave, which could be cashed up, is the fact that the previous Labour-Alliance Government brought in 4 weeks’ annual leave.

I have to say that I am quite relieved that at least we are not saying “Let’s go back to 3 weeks.”, although that will be the effect of this provision in Part 1—that will be the effect of it. [Interruption] Yes, it will be the effect of it. It one of those National policies that is—

💬 Hon Steve Chadwick: Up for sale.

—yes, but hung over from the 2005 election. It was one of those manifesto promises National made for no particular reason. I am not aware of any demand from workers to sell the fourth week’s annual leave. They might want to do it if they do not get a pay rise, which is what has been happening under this Government. They are not getting a pay rise, so I can understand why workers may say: “Oh well, I haven’t had a pay rise in a year, so that is looking pretty attractive. The cost of living is going up, GST has gone up.” I can understand that.

I go back to the reason that we brought in a fourth week’s annual leave: there is a fundamental right to rest, recreation, and leisure. It is a fundamental right to have paid holidays, and New Zealand was lagging behind. The provision in Part 1 will ensure New Zealand starts to drift down to the bottom of the scale again in terms of paid annual leave. Members opposite can talk about choice all they like, but the reality is that this provision will undermine the 4 weeks’ annual leave. That leave will be devalued, because it is cashable—it is up for sale. We know that many, many workers will not have a lot of choice about this matter. National members like to talk about choice. David Bennett should not shake his head; I know he does not want to listen to this, but it is true.

Well, here we go again. Let us rewrite the rewritten history. Let us rewrite it. The Labour-Alliance coalition—it was a member’s bill by Matt Robson—

💬 Darien Fenton: That’s what I said. I said that.

No, no. You see, the subtle difference is that that member tried to tell the Committee that the fourth week of annual leave was Labour policy. If it was Labour policy, why was it not on the previous Labour Government’s agenda? Why did the person in charge of the House, Michael Cullen, who was in charge of the legislative calendar, not bring the legislation in during the first year, the second year, or the third year? It had to come up in the House because—

💬 Darien Fenton: So?

She says: “So?”!Well, here is the “so”—

💬 Darien Fenton: But you let ACT tell you what your policy is.

Oh, my God! No wonder employers and employees did not like that member coming on to the blimmin work site.

This provision of the Employment Relations Amendment Bill (No 2) is about a property right. What is it?

💬 Darien Fenton: Never saw you.

Well, I was an organiser in the heady days, with you, Mr Chair, and those were good times. We had a lot of fun.

Here is the rub: why does Labour not want the worker to have the ability to trade one of their property rights? That is what a week’s holiday is. It does not belong to the Service and Food Workers Union and it does not belong to the Engineering, Printing and Manufacturing Union; it belongs to the workers themselves. Helen Kelly and her mate “Stuart Little” cannot come along and say to workers that they cannot trade in their week. They think they know better than the workers—they know better than the workers! That is exactly what Labour’s line is. It harks back to the days of the dictatorship of the proletariat, which said that they do not understand, so we will make the decision for them. Shame on Labour—shame on Labour! If those members think that that is supporting workers, then they are sadly mistaken.

We can ask any worker on any job site whose holiday it is. In the Transport and Industrial Relations Committee I continued to ask that question of union representatives, and of anybody who came to the select committee to make a submission. It was quite clear that the answer, every time I asked it, was that the holiday belonged to the worker. It did not belong to the union organisation, and it certainly did not belong to the party in Opposition today.

💬 Darien Fenton: So why are you taking it off them?

I am not taking anything off employees. In fact, National is saying to workers that if they want to trade one of their property rights, they can go for it, because that right belongs to the worker, and not to the slimy little Labour Party and union organisers who are stealing money out of their back pockets—like the Service and Food Workers Union, and the $300,000 that they gave to the Labour Party.

💬 Darien Fenton: I raise a point of order, Mr Chairperson. For the last week or so that member has made references to the Service and Food Workers Union stealing money from union members and giving it to the Labour Party. I say that that is completely untrue, and I take complete offence.

The CHAIRPERSON (Hon Rick Barker): The member may take offence on behalf of the union, but this is a Committee of robust debate. It is a Committee of free speech, and the comments do not offend the rules of the Standing Orders. The comments may not be in good taste, but that is for the member to decide.

💬 Hon Trevor Mallard: I think you would be aware, Mr Chair, that the person who took offence was the national secretary for the Service and Food Workers Union, and would have been responsible for any such theft. An accusation of theft against a member, even if the accusation was made about a period before they were a member, is certainly offensive. If I made similar comments about Mr Brownlee or Mr Woodhouse, they would rightly be offended. The member was the national secretary of that union; she was the person responsible to the national executive for the collection of subscriptions, fees, and disbursements, including money paid to the Labour Party. I take offence.

The CHAIRPERSON (Hon Rick Barker): The member makes a point. But at no stage did the member speaking, Mr Henare, attribute theft to a particular individual in this Chamber, at all. The member speaking just now, Mr Mallard, drew all of the connections; he put all the dots on the page and then drew a line between them.

I say to members that it is not an easy task to find the balance between taste—what people think is fair—and things that are offensive. If this Committee is to have robust debate, and if people are to say things robustly themselves, then they have to expect that other things will be said in return. Members have the opportunity to later get up and state their case, and to state the contrary. Those are the rules of the debate. If members want to have things ruled out of order because people are offended, then the amount that people can say will contract and contract, and we will not have a Committee of free speech. I am a defender of free speech; I think people should be able to say what they feel. In saying whether this speech has crossed the line, I think we need to be careful about where we draw the line.

I accept the point that Mr Mallard made, but the Hon Tau Henare did not accuse an individual member of theft. Had he done that, I would have stopped him immediately.

💬 Hon Trevor Mallard: I raise a point of order, Mr Chairperson. I realise that I have put you in an invidious position, because of your own previous work history—

The CHAIRPERSON (Hon Rick Barker): The member will not bring the Chair into the debate. If the member wants to make a point of order, he should make it. It must be about order, the Standing Orders, and Speakers’ rulings.

I move, That the Chairperson report progress to obtain the Speaker’s ruling on a personal reflection that the Chairperson had ruled against. The reason I am doing that is that I think it is unfair for the Chair to make a ruling on a matter that I realise, in retrospect, was a reflection on him, as well.

Motion agreed to.

House resumed.

Speaker Recalled