Holidays Amendment Bill

I rise to speak about the title of the Holidays Amendment Bill, and I want to reflect for just a moment on the word “holiday”. When we think about the word “holiday”, generally we conjure up an image of having time away from work on pay. I think that is generally what the average person would think of when he or she thinks about that word. I think they would also think about spending time with their family and friends while they are off work. I can even see members across the Chamber nodding about that. A holiday means time off work with family and friends.

The Holidays Amendment Bill amends the provisions around holidays. One of the major changes—and let us cut to the chase—one of the most controversial changes is the new provision relating to the ability to cash up 1 week of the statutory minimum, which is currently 4 weeks. Currently we have 4 weeks when we can have a holiday—that is, be away from work and spend time with family and friends. One of the major provisions in this bill will allow that to change so that the statutory minimum could be 3 weeks away from work with family and friends and 1 week in money.

First of all, I ask whether the name Holidays Amendment Bill is appropriate when a full quarter of our statutory minimum holiday will now not be a holiday as we know it, but, in fact, will be a lump of money. There is a rather convoluted process in the bill to work out how one would go about getting that, how it is paid out, for what period it applies, and so on. I wonder about that title, given that money is not time off work. Perhaps an alternative title might be something like “Holidays (Dollars Instead) Amendment Bill”, or “Holidays (Stay at Work) Amendment Bill”, because that is what people will be doing. They will not be having a 4-week holiday away from work with family and friends, as we have agreed is a good definition of a holiday. Instead people will receive a week’s pay and they will be at work. Therefore, those are perhaps alternative titles for the bill.

We have holidays so that we can have time off work. Why do we need time off work? Obviously, time off work is time for rest and recreation. The Act actually talks about a worker’s need for rest and recreation. I think we can all agree, sitting here now at 9.55 p.m., when some of us have been in the debating chamber since 9 o’clock this morning, that time off work can be a very good thing—a bit of rest and recreation. That is why we have holidays, and generally those holidays are times that we spend with family and friends while we have that rest and recreation. Usually people go back to work refreshed, and probably often more productive as a result of having had some time off. Certainly many people argue—and there seems to be evidence to support this—that fewer accidents occur when people are rested and refreshed, as opposed to what happens if people keep working. That is one important part.

I thought that my colleague Rajen Prasad, who was previously a Families Commissioner, gave an exceptionally good speech about the importance of holidays for families. When we have a holiday we get to spend time with our family. In our country we have a culture of working long hours. Many people regret, especially when they reach an older age in life, that they have not spent more time with their family. I may have mentioned earlier that there are probably not too many people who, when they reach their retirement age, look back and say: “Gee I wish I had spent more time at work.” Most people would wish that they had spent more time with their family, their friends, and having holidays and enjoying themselves.

One of the real, genuine concerns we have about the payout on holidays is that it is not a particularly family-friendly thing to do. It means that people who really need the money will take the money and, as a consequence, they will miss out on spending time with their family. There are broad and significant implications from parents not spending time with their family, and this has been shown by good research. There has been some really interesting research done by an Australian researcher—

I am pleased to take a call on the—[Interruption] What?

💬 Hon Trevor Mallard: It’s all right. I was just criticising my colleague for taking only one call.

All right. I was beginning to speak on clauses 1, 2, and 3, “Title”, “Commencement”, and “Principal Act amended”. I want to talk about clause 3, “Principal Act amended”: “This Act amends the Holidays Act 2003.”. My colleague Trevor Mallard was trying to remember earlier the date of the last Holidays Act. It was 2003. I could not remember it either, actually. But I did know that it was during the term of a Labour Government, and that the last time we amended the Holidays Act we made some significant improvements. We made significant improvements to the holidays of New Zealander workers. It was great because we were on the path towards catching up with Australia in terms of its annual leave. We approved things like improvements to sick leave and bereavement leave. We gave workers time and a half for working on a statutory holiday, which they had not had before, plus a day in lieu. I was not in the House at that time but I really supported what the Labour Government did. It made a huge difference to working people throughout New Zealand. If they had been asked about it at the time, they would have said it was one of the most significant amendments to any Act that the Labour Government made.

Here we are in 2010 amending the Holidays Act once again, but, unfortunately, we are going backwards. We are now in reverse drive and going back and undoing all the good work that Labour did. The National Government is picking at it bit by bit. I think there will be more change as time goes on. It is a real missed opportunity, because while we are debating this in the Chamber tonight our friends and fellow workers and employers in Australia have been talking about holidays once again. They have been talking about what happens next year. There is a great opportunity for this Government to do something right for a change. Next year we have the unique situation where Easter Monday and Anzac Day fall on the same day, so New Zealand workers will miss out.

💬 Hon Trevor Mallard: It’s April 2011, just after this comes into force.

That is right. It is just after the commencement date for this legislation.

💬 Hon Trevor Mallard: It might be on the 25th.

That is true. The Minister of Labour said that Anzac Day should be revered. Well, we agree with that. It does not mean that workers should not get another day off to compensate for the fact that they will miss out on one public holiday next year. That is the truth. Every state in Australia has brought in a provision giving workers an extra day off on pay next year to compensate. In the meantime, we are making it harder for workers to have proper days off to recognise public holidays that they are currently entitled to. We are going backwards. This is a huge missed opportunity.

There are other things that the Government could have done. If the Government really had to go down the path of doing the things it has done—for example, requiring a medical certificate after 1 day’s sick leave—it could have introduced an amendment to make sure that the reimbursement was for actual costs. It could have ensured that the reimbursement was not just for the cost of the doctor but also for the cost of finding a babysitter or childminder, getting into the car to go to the doctor, and perhaps taking time off work. The Government could have done that, but of course it did not. It was one of the sensible amendments that members on this side of the Chamber proposed.

Another amendment that would have made this bill much fairer related to the whole issue of transferring public holidays. Labour members do not have a problem with the idea that people can transfer their holidays to a day that has more cultural meaning to them. Our concern is that it could be used to avoid paying time and a half on the actual day. This bill could have been amended to make it much stronger so that that could not happen. If a worker is required to work on an official public holiday—a recognised public holiday—the worker should be paid time and a half.

Another missed opportunity was an amendment to make sure that if workers cash up their leave, it is not a substitute for a pay increase.

Thank you for the opportunity to rise and speak to clauses 1 to 3 of the Holidays Amendment Bill. The part that I really want to focus on is clause 3, “Principal Act amended”. The bill says that the Holidays Act 2003 is being amended. I pose the question of whether the Health and Safety in Employment Act should also be amended as a result of what is proposed in this bill.

The Health and Safety in Employment Act, which was brought in under Labour, requires the employer to take all practicable steps to keep employees safe at work. I wonder whether the legislation we are debating in the Chamber tonight complies with that requirement. We know, and all the research and evidence tells us, that there is a really strong link between the hours of work that people engage in, their ability to have a rest, their ability to take holidays, and their fatigue at work, and therefore there is a link with their susceptibility to making a mistake, having an accident, hurting themselves, or even worse—perhaps a fatality in the workplace. We know the evidence is very strong about that.

The bill that we are debating gives an incentive, particularly to low-paid workers, to cash up their right to have a week’s annual leave to recuperate and to do all the things that good health and safety practices tell us are really important in the workplace. It gives them an incentive to give up their week of annual leave, and therefore put themselves at greater risk of having a workplace accident.

We know that in New Zealand, because we focus a lot on primary production, many of our workplaces are in very dangerous industries and we have a high level of workplace accidents and, increasingly under this Government, a larger number of workplace fatalities. I ask whether, as well as amending the Holidays Act 2003, the Government—[Interruption] Tau Henare does not seem to take very seriously workers’ rights to be kept healthy and safe at work, but I am asking whether the requirement under the Health and Safety in Employment Act still holds true if we amend this Act.

There is a requirement for the employer to take all practicable steps to keep employees safe at work. A worker might come along and say they would like to cash up their fourth week of annual leave—for which they can thank the Labour Government. Does that mean that the requirement under the Health and Safety in Employment Act requires the employer to say that actually, because of the nature of the workplace and because fatigue is a really big problem in that workplace, they cannot be allowed to do that, because the employer would not be upholding their legal responsibility under the Health and Safety in Employment Act to take all practicable steps to keep the worker safe? It is a question that has not been asked in this debate so far, and I would really appreciate it if the Minister in the chair, the Hon Dr Nick Smith, rose and responded to the question of whether the Health and Safety in Employment Act, as well as the Holidays Act, ought to be amended to make this provision lawful.

The commencement date of 1 April 2011, of course, is pretty interesting. I think some witty official must surely have come up with that date. The Government has chosen April Fool’s Day as the commencement date for this legislation, and I think it is, sadly, very appropriate. But I hope that I am wrong.

I would like to talk to clauses 1 to 3 of the Holidays Amendment Bill, but probably in a slightly unusual order. I would like to start with clause 2 and focus on the Royal assent. I think it would be inappropriate to do it on 1 April. Today we have the announcement of the impending marriage of Will and Kate in the spring of 2011, which in British terms, of course, means the wedding could well be held on April Fool’s Day. I have made it very clear, and my Facebook friends all know, that I think Will’s dad should not be the King. But it does not mean that Will and Kate should not get married; there is nothing wrong with that. The question is whether, on their honeymoon, they could pop into New Zealand and, using the royal prerogative, sign the bill. Could Will sign the bill?

💬 Darien Fenton: I’m sure they would love that.

Well, of course. If they really thought New Zealand was important, they could have the wedding at Huka Lodge or at one of the churches in Wainuiōmata, or at a number of places like that, and as part of the general documentation the Royal assent to this legislation could occur.

💬 Sue Moroney: John would love to go with them.

John would smile and wave, and he probably would not even walk away if the Royal assent was applied in that way.

Of course, some provisions of the bill come into force on the day after it receives the Royal assent. Clause 7(2) and schedule 1 are the ones that relate to section 29 of the principal Act. They are the sections that come into force on the day after the date on which the bill receives the Royal assent. But the rest of the Act, as I am sure you are aware, Mr Chairman, through your intimate study of this bill, comes into force on April Fool’s Day. I think for the Minister in the chair, the Hon Dr Nick Smith, and the Minister in charge of the bill, the Hon Kate Wilkinson, that is probably an appropriate date for the bill to come into force.

I do not think there can be a lot of debate about clause 3, “Principal Act amended”. There is not much doubt that it has an effect on the Holidays Act of 2003, although I think after the debate on the schedules we could consider whether clause 3 should state that the Act amends not only the Holidays Act 2003 but also the Employment Relations Act 2000—which was subsequently amended by the Employment Relations Amendment Act 2010, which we debated not long ago—and the Parental Leave and Employment Protection Act 1987. We should consider whether to say that the principal Acts amended are those three Acts, rather than just the one Act to which we refer.

We then turn to the title, which is the Holidays Amendment Bill 2010. You will be aware, Mr Chairperson, because I know you have been carefully studying the bill, that some very thorough work has gone into some alternative titles for this legislation. Some of the titles go to whether there are better names for the bill, and whether the title should be the “Holidays (Taking Away) Bill, or whether some better alternative names than that should be considered.

💬 Carol Beaumont: The “Holidays (Cash Instead) Bill”.

It could be called the “Holidays (Cash Instead) Bill”, the “Holidays (What the Hell Are We Doing with Our Time) Bill”, or the “Holidays (Go to Work Instead) Bill”. It could be the “Holidays (John Key Says ‘I Am Going to Hawaii—Stuff the Workers’) Bill”. There are a number of alternatives. I agree with Whale Oil. He said tonight that probably the reason John Key turned down Pansy Wong’s resignation from Parliament last week was that he did not want to disturb his holiday in Hawaii over Christmas. He wants her resignation to come after Christmas, so that he can have an undisturbed holiday. So instead of this bill being called the Holidays Amendment Bill, it should be called the “Holidays (Leave Me in Peace in Hawaii) Bill”. I ask whether that would be appropriate.

I move, That the question be now put.

I am really pleased to join my colleagues in taking a call. Obviously, this is a very important bill—

💬 Hon Trevor Mallard: You cut me down.

What was that?

💬 Hon Member: You’re a shocking member, cutting me out of the debate like that.

Well, I know—

The CHAIRPERSON (Hon Rick Barker): The Chair has sole prerogative on who speaks. The Chair is not shocking. He did not cut that person out. The call has gone to the honourable member Lynne Pillay.

Thank you very much, Mr Chairperson. I know that you will be very happy to hear a contribution from Mr Mallard again, because he makes very good contributions. Perhaps a little bit of camaraderie and team playing around his fellow team members would be very good.

I return to the bill. As my colleagues have said, the name Holidays Amendment Bill is not appropriate. There have been many other suggestions. I know that Darien Fenton and Sue Moroney had one before. Just thinking about it, we could call it the “Holidays (Entitlement Repeal) Bill”. Some of my colleagues are being a little bit flippant. Or it could be called the “Selling Your Holidays Bill”, the “Holidays for Cash Bill”, or the “Holidays (Workers Must Not Be Trusted) Amendment Bill”. We know why that is, and people may ask why we would call it that. It is simply that we ask why else would a worker have to get a sickness certificate for 1 day. We could call it the “Holidays (Enabling Bad Employers) Amendment Bill”. These titles are more in keeping with what the bill is all about. It could be the “Holidays (Loss of Productivity) Amendment Bill”.

💬 Sue Moroney: What about the “Holidays (More Workplace Accidents) Bill”?

It could be the “Holidays (More Workplace Accidents) Bill”. I ask whether Trevor Mallard will be taking another call.

💬 Hon Trevor Mallard: I’ll work on it.

He will suggest some other titles, I am sure.

💬 Hon Trevor Mallard: You’ve only two and a half minutes to go. Keep going.

OK, the title could also be—rolling up a number of titles into one—the “Holidays (Entitlement Repeal, Selling Your Holidays, Holidays for Cash, Workers Cannot Be Trusted) Bill”. I think that pretty much sums up what this Government thinks of the workers of New Zealand.

I note that this will be the Holidays Amendment Act 2010, or whatever it will be called if those suggestions are accepted by the Government, yet quite a bit of the Act comes into force in 2011. I have always found that quite confusing, because if the amendment Act is enacted in 2010, we would expect all the parts of that Act to be enacted. But some of the amendment Act—

💬 Sue Moroney: Dribbles in.

—dribbles in, as other people have said, on April Fool’s Day. One wonders, for clarity, whether it should be called the “Holidays (Entitlement Repeal) Act 2010 and 2011”, because by virtue of being called that, it would signal that it will not all happen at once. The whole Act will not be enacted in 2010. Some of it will actually be enacted in 2011.

Members opposite are quite stunned and are thinking that that shows quite a bit of common sense. They are having another look at it. Tau Henare is having a big debate over it. I wonder whether those members can give it that consideration. I know that my colleague Trevor Mallard has a very important contribution to make and he will be able to enlighten the Committee on that pretty soon.

Going back to the title of the Holidays Amendment Bill, I say that even if it was called the “Holidays Amendment Act 2010 and 2011”, it still would not say enough about what the legislation is about. If there was more of an explanation in the legislation, then members in this Chamber would know and people outside this Chamber would know.

I move, That the question be now put.

I will continue on from that very inspiring speech given by one of my great mentors, Lynne Pillay.

💬 Hon Trevor Mallard: Standing shoulder to shoulder with her!

We are definitely the long and the short of the Labour Party. Stand up, Lynne.

💬 Lynne Pillay: I’m not allowed.

OK then, sorry, Lynne. In all seriousness, I will add to what Lynne Pillay was saying and provide the Government with a few other ideas for what might be more appropriate titles for the Holidays Amendment Bill. Lynne Pillay provided some very good suggestions, which followed on from Trevor Mallard’s very, very good suggestions.

One of the suggestions I would like to put forward, which I am sure the other side of the Chamber will take some time to consider seriously, is that we title this legislation the “Holidays are for Slackers Bill”. I am sure Government members would appreciate that title, given that that is their general attitude towards workers. Using that as the title of this bill would demonstrate and illustrate the National Government’s attitude towards workers. Alongside that, I think all the members from the Government side of the Chamber should really consider whether they will need a holiday at the end of this year. Perhaps they want to give their holiday up, given that they see no value in holidays and do not believe that workers—

💬 Hon Trevor Mallard: What about Pansy’s holiday?

Well, we do not know how long that holiday will be. As Mr Mallard said earlier, Mr Key has deliberately asked her not to resign too early, so he can have his holiday in Hawaii. Is that correct? Yes, it is.

Given the undervaluing of holidays from the other side of the Chamber, it would be appropriate to call this legislation the “Holidays are for Slackers Bill”, but it would also be appropriate for all the Government members to consider giving up their holidays at the end of this year. They could spend Christmas Day, New Year’s Day, and all of January not with their families, because the members do not value families—in fact, they are anti-family. They could instead spend all of their time away from their families as they would expect the ordinary Kiwi worker to do, and they could spend all of their time working. That would set the example of what those members expect of every other worker.

Another example of what might make a more appropriate title for this legislation would be the “Holidays (Stopping the Sickies) Amendment Bill”. From the other side of the Chamber an assumption, a generalisation, has been made that all ordinary Kiwi workers are lazy, good-for-nothing slackers, and because of that those members want to make sure that if workers take even 1 day off sick they will have to visit a doctor, pay the money, and get a medical certificate to prove they were sick. Unfortunately, the Government members do not trust workers, because they believe that workers are all lazy and slack. Their attitude toward other workers is a reflection of their own work ethics. They see in others what they themselves are like. It is quite sad, because the vast majority of workers are nothing like National MPs. They work really hard and can be trusted. The reality is that the legislation before us does not reflect that type of attitude towards workers. Instead it shows complete distrust and a very patronising and condescending attitude towards workers. Again I say they really should consider calling it the “Holidays (Stopping the Sickies) Amendment Bill” as that fits with their attitude towards workers.

💬 Lynne Pillay: I like that.

Does the member like that one?

Another idea that has just been handed to me—

💬 Hon Maryan Street: No, it’s your own.

—I have been told it is my own—is the “Holidays (Wake up your Ideas) Bill” or the “Holidays are for Wusses Bill”. Those are great ideas that I just came up with! Let us consider them, the “Holidays (Wake up your Ideas) Bill” and the “Holidays are for Wusses Bill”. They are both great because they illustrate the general sentiment behind the bill that we are now considering.

I move, That the question be now put.

The CHAIRPERSON (Hon Rick Barker): The title clauses are usually a summing up, but I have not heard a lot of summing up at this stage. I will take one more call in the hope that I get some fresh material.

I am happy to talk on the title clause, because the title does not reflect the content of the bill as we come to the end of the Committee stage. I believe we need to amend the title in order to better reflect the debates we have had, the amendments that have passed, the amendments that have failed, and where we are at. The title “Holidays Amendment Bill” simply does not adequately reflect that. I think an adequate reflection of the debate would be to call the bill the “Holidays (This is Nothing About Choice) Amendment Bill”, or maybe the “Holidays (Working People Living on the Breadline Have No Choice) Amendment Bill”.

We discovered during the Committee stage that the National and ACT members genuinely believe that working people who are facing incredible cost of living increases and wage freezes and who cannot afford to pay their bills have some kind of choice when it comes to whether they cash in a holiday. National and ACT think those people have a genuine choice and that they would rather have the money than have another week with their families, rejuvenating and refreshing themselves so that they can be more productive in their work. We know from the debate during the Committee stage that that simply is not the case. Perhaps this bill could be called the “Holidays (This Government is so Out of Touch it is Unbelievable) Amendment Bill”.

The other thing we heard a lot about during the Committee stage was that this bill is about property rights, because the workers own their holidays. Maybe the bill could be the called the “Holidays (We Argue About Property Rights When it Suits Our Cause) Amendment Bill”. I remember a debate in the House about accident compensation. The Government decided it would take workers’ holidays off them if they were entitled to accident compensation. The Minister for ACC, Nick Smith, said that if they had holidays, they should have to take those holidays first. Let us look at an example where two workers in exactly the same situation have an accident and are entitled to accident compensation, but one has already used up all their holidays and the other has not. The worker who has used up their holidays will get accident compensation, but the worker who has not used all their holidays will have to use those holidays first.

Where was the respect for property rights when that legislation went through the House? Those holidays belonged to that worker. It was an entitlement that had already been earned. We have heard that this bill is about property rights, but where was the respect for property rights then? Perhaps this bill should be called the “Holidays (Where was the Respect for Property Rights When They Were Taken Off Workers Under ACC Legislation) Amendment Bill”. This Government is at sixes and sevens. It is contradictory. It uses the arguments only when they suit, and when they do not suit it completely abandons them.

We have also talked about the sick leave entitlements in this bill. I think the bill could be called the “Holidays (Using a Sledgehammer to Crack a Non-existent Walnut) Amendment Bill”. As we found out in the Committee stage, there is absolutely no evidence that there are any problems happening in this area. There is no evidence that workers are rorting sick days. The Government has no evidence to back this up. As we found out during the Committee stage, if an employer has reasonable grounds to believe that an employee is rorting sick days, the employer can demand a medical certificate—which is absolutely right and proper—but they have to have reasonable grounds. If, for example, someone is constantly taking Fridays or Mondays off, or if the boss sees that person on TV at the rugby, then there are definitely reasonable grounds for demanding a medical certificate.

But with this bill, which could be called the “Holidays (National and ACT Believe That All Workers are Rorters When it Comes to Sick Days) Amendment Bill”, the Government is saying that it has very little trust in workers. It is saying that a worker’s default position is to rort the system, as opposed to believing that that is the exception rather than the rule. The Government wants to make every single worker produce a medical certificate for being sick for one day if their employer says they need to. They have to spend money even if it is something a doctor cannot do anything about. And they may not be able to get an appointment to see a doctor. This requirement goes against all the evidence the Government was shown, which is that New Zealand workers, on average, do not take a lot of sick days compared with other countries. The evidence also shows that the biggest cost for New Zealand businesses when it comes to sick leave is not the cost of workers taking sick leave. The biggest cost is the loss of productivity caused by workers going to work when they are sick and making others sick. That is where the big loss occurs.

I move, That the question be now put.

I move, That the report be adopted.