Employment Relations (Trial Periods) Amendment Bill

Members, the House is in committee on the Employment Relations (Trial Periods) Amendment Bill. This bill is drafted in clauses. We will debate the bill clause by clause, starting with clause 1. Members may wish to consider Speakers’ ruling 127/2, which indicates that clause by clause debates are generally narrow and should confine themselves to the words of the particular clause and issues contained in them. Having said that, because the bill has not been to a select committee, the debate on clause 1 may be more broadly about the bill—Speaker’s ruling 127/1. Members, we come first to clause 1. This is the debate on the title. The question is that clause 1 stand part.

Thank you, Madam Chair, for allowing me the opportunity to participate in this debate on this bill, which, as you have correctly stated, is not a particularly long bill but particularly impactful to a large proportion of the population.

In relation to clause 1 that we are debating at the moment, I think there is an amendment on the table, from one of my colleagues, to amend the name of this bill because I think that there could be other titles that could be more appropriate to the Act than actually the Employment Relation (Trial Periods) Amendment Bill. Actually, what this bill does is not just amend trial periods, it takes it from a rather smaller proportion of the population—and that’s 28 percent of the population that are currently covered by trial periods, if they are new to their employment—to 100 percent of the population, or almost 100 percent of the population. I do have a question for the Minister for Workplace Relations and Safety around that. I’m just trying to think where the correct place in the bill would be to discuss that, and, I think, probably the title clause, as you’ve said, because it can be slightly more widely interpreted, might be the best part.

In the regulatory impact statement, which I do commend for being very thorough and going through a lot of the details surrounding the bill and citing a lot of the evidence relevant to this bill, one particular area is noted that is excluded from employers being able to implement trial periods within their employment agreements. It’s not particularly mentioned in the bill, so that’s why I’m bringing it to your attention in clause 1. But, in terms of my suggested amendment—my colleagues have another suggested amendment that this more correctly reflect the fact that we’re going from a small percentage of the population to a large percent of the population being covered by trial periods.

It’s important to ask, I think, the Minister at this stage about the accredited employer work visa, which, as I understand, are covered by the immigration rules, which would, effectively, mean that people coming into work in New Zealand won’t be able to be covered by trial periods, and New Zealanders who already are here, working, would be covered by trial periods. Of course, I’m not advocating for a further extension of that. I think that it’s better if fewer people are covered by trial periods. I agree with the regulatory impact statement, which states the status quo is the best and most preferable option here.

But I do think it’s an unusual position to be in to be saying to people under the accredited employer work visa scheme that it is not appropriate for you to be covered by trial periods but it is indeed appropriate for everyone else not covered by that visa to be covered. So I wanted to ask the Minister about advice on that, in relation to this first clause of that bill, and also to consider if she has, in fact, considered a more accurate title for the bill. If you were to read the title of this bill, you may perceive that this is a small amendment. In fact, actually, it extends the coverage of the trial periods quite considerably from only 28 percent of the population who enter into new jobs, to, in fact, the entire population of employees. So those are my, really, initial questions for the Minister, in relation to the first clause.

Thank you, Madam Chair. I appreciate the guidance around how this debate will be carried, particularly the ability to analyse it more broadly due to there not being a select committee stage.

I want to pick up on the previous speaker Camilla Belich’s comments regarding the interactions with the immigration system. I also wanted to get a sense of whether there has been any exploration of the interactions with the migrant exploitation protection visa. So, for example, currently if somebody has been abused or has received comments in relation to their hair or their weight, or has faced harassment in workplaces where 90-day trials don’t apply, the employer wouldn’t be able just to get rid of that worker to avoid having to go through a process where that worker raises those harassment issues. I’m just wondering, then, after this bill, whether the use of the 90-day trials to get rid of workers where instances of harassment or exploitation would have occurred could still trigger eligibility for the migrant exploitation protection visa.

💬 Stuart Smith: Point of order. We are debating clause 1. I haven’t really heard anything relating to clause 1 in the member’s speech so far.

CHAIRPERSON (Maureen Pugh): Thank you. In the opening remarks I made, I did make comment that the debate on clause 1 may be more broadly about the bill, given the lack of select committee process.

RICARDO MENÉNDEZ MARCH: I appreciate that, Madam Chair. Why I’m taking the opportunity to bring that up here is because it’s important to unpack the level of advice and consideration that would have been given in relation to this bill. And I think the title clause is where it’s most appropriate to raise this because, ultimately, there will be interactions with other parts of the system as a result of this bill and otherwise it’s kind of hard to point it out elsewhere. So the question I had was: has the Minister received or sought any advice regarding how these changes interact with the migrant exploitation protection visa?

I also wanted to get a sense of, for example, whether there had been any advice sought on the impact of wage scarring—whether 90-day trials would have contributed to wage scarring as a result of people entering below the poverty-level benefits, and then that potentially impacting the wages that people then receive after to try to get out of the poverty-level benefit. Because, ultimately—and why I think this is important to unpack at this point—the Minister, in her previous contributions in the debate, talked about how this bill would help increase productivity and would benefit the economy, but we know that wage scarring is one of those things that can contribute to lower productivity and can contribute to a low-wage economy. So I’m just keen to understand whether she sought any advice in relation to that.

Thank you, Madam Chair. I thought I’d take an early call to make sure that we are brought back to the specific bill. Both the member Camilla Belich and Ricardo Menéndez March raised issues about migrant workers and the accredited employer work visa. I can let both members know that immigration instructions set out the accredited employer work visas, not the Employment Relations Act. So there is no change to that specific area of law or regulation, because that’s not actually in the Employment Relations Act, and we should come back to the bill. The issue is outside of my portfolio powers and therefore outside of this bill.

Thank you, Madam Chair, for the opportunity to ask a few specific questions about clause 1, given that we are simply talking about the naming provisions around the bill, and then, more broadly, the bill, because we haven’t had a select committee stage. So I’ll ask the questions of the Minister first so that she has time to consider them.

There is an amendment in my name to change the title of this bill—

💬 Stuart Smith: Busy member!

—to acknowledge that—very busy member. Thank you to the honourable member for recognising how hard I am working to improve this legislation for the Minister. My amendment would recognise that this is a renewal of a provision that has existed in law before, and my questions to the Minister are about certainty for employers, for employees, and for organisations that represent employees and workers—about these amendments.

So my first question to the Minister about the proposal of mine to change the name, to recognise that this is a renewal, is about what the legislative history of the amendments to trial has been. I’m particularly interested in the number of times that this legislation has been brought in and then taken off the statute book, given that I think we need to have in our legislation a proper recognition that there is very little certainty for employers and for employees around these clauses. And that will point us, as a Parliament, to the need for some shared understanding in the House around provisions that could give employers further certainty.

My second question to the Minister is about how employees and employers can look at the history of legislative amendments and gain some help with the kind of individual and collective agreements that exist between them so that they can live on through changes of Government policy in this area. I’d like the Minister’s answers to those questions before I ask any further questions, but I hope that she would consider the change in the name of the bill that I propose which would recognise that this is a reinstatement or a renewal of the provisions which existed before.

Thank you very much. Look, I don’t support the amendments to the title clause of this bill from either that member or Camilla Belich’s concern about the Hon Duncan Webb’s proposed amendment to the title clause.

But specifically talking to your question about the historical amendments of trial periods, I would simply refer that member to my first reading speech, which was not that long ago.

Thank you Madam Chair, and I thank the Minister for her comments around my last contribution and also her confirmation that indeed it will be the case that those covered under the accredited employer work visa will not have trial periods, whereas the rest of New Zealand will.

I wanted to ask a follow up question to the member around—even though I understand it’s in a different Act and it is under the immigration instructions which is perhaps not her portfolio—if she has discussed this matter with the Minister of Immigration in relation to the intersection of the two different portfolios that are relevant today. And, also, to note that in the last bill the Minister oversaw, the Fair Pay Agreements Act Repeal Bill, there was an amendment to the Employment Relations Act, which is, as she’s correctly noted in this instance, a totally different Act as well. So these matters do come up from time to time, and I wanted to know, following her earlier contributions in reply to my question, if she had in fact engaged in any advice or turned her mind to that. I do note that it is included in the regulatory impact statement.

So the other things that I wanted to comment on is also to support the amendments put forward by Duncan Webb and Arena Williams in relation to the titles. I don’t think I mentioned the titles when I last made a contribution, but it was Duncan Webb’s amendment that I was referring to. So just for the benefit of the Chamber, the amendment is to change the title from the current title, the Employment Relations (Trial Periods) Amendment Bill, to “This Act is to Legalise Unjustified Dismissal (Employment Relations Amendment Act) 2023”, more effectively encompassing, I think, the purpose of the Act.

Additionally, I support the amendment of my colleague Arena Williams, who referred to wanting to change it to the “Employment Relations (Trial Period Renewal) Bill”. That is because this has come up a number of times and it is a change back from a previous policy which was adopted in, I think, 2017 to restrict the number of employers who are able to engage in trial periods to, in fact, include that to be a larger number. So I think that title, in reference to clause 1 of the bill, more effectively conveys the meaning of that.

So I wondered, primarily, to note her comments on the title, but wanted to know from the Minister about her discussions with the Minister of Immigration.

Thank you, Madam Chair, and picking up on the Minister’s previous comments regarding some of those questions regarding the interactions with other parts of the system, for example the immigration system being outside of her portfolio. I just wanted to acknowledge that this will have consequences in other parts of the system, and that I guess it’s not unfair to ask the Minister to address what level of interaction, if any, she would have with her counterparts in the development of this bill.

In relationship to the title, I mean, there’s the words “trial periods” and I know that she stated that there hasn’t been a select committee process due to this being in the coalition agreement, but at any point did the Minister seek any feedback from worker representative groups around 90-day trials specifically? Particularly around the kind of trial periods element that we can find in the title, and if so, what was the feedback that she would have received as part of any consultation work? Or was it the case that she would have just spoken to employers in getting to this?

The previous member Camilla Belich and the amendments that some of the Labour Party counterparts, in terms of the reshaping of the language, what I think they illuminate is the intent of the bill, and I guess while the title may in and of itself not have a huge impact in the day-to-day lives of people, it does signal how the Government is framing this piece of legislation. So that’s why I’m interested in part of that framing—containing the title—what level of consultation she would have had with worker representative groups?

Thank you, Madam Chair. I want to ask the Minister a question which relates in part to the issue of the carve-out of people who are on work visas because I wondered how much she knew about the logic behind that carve-out. My own understanding is that the carve-out will have been because people acknowledged a lot of investment has come, and a lot of risk has come into somebody coming into the country, and there are other ways of handling that situation which don’t involve a right to terminate suddenly in that early period.

I wondered if the Minister had an opportunity to look at that model and see what was considered because it seems to me there’s an immediate connection with some of the other groups of workers who also could claim a similar risk that they’re taking and cost that they’re paying if this law goes through. I wondered whether it might open the door to a carve-out for some of those other people in different classes. I wondered whether, for example, workers who are moving from one job to another who are actually leaving a job and leaving a good wage might be people that could be carved out very much on the same logic that they are carved out because they are migrants coming to the country on work visas. I also wondered whether we might apply that to some of the other groups that would be particularly at risk as a consequence. So I would like to know whether the Minister looked at that part of another law when she considered this and whether she’d consider those kinds of carve-outs.

I also just wanted to talk about the issue of the amendment that has been put up by my friend Duncan Webb. That does seem to be a clearer articulation of what this is, and I wondered, again, to link it to my last point, whether the Minister had considered whether it was all right to do something unjust to someone in the first 90 days; to terminate them unjustly? Is it all right to terminate them unjustly in that period and not all right when that period has expired? So I’d love an answer to that question: is it OK, why is it OK? I’d like to know whether that’s the way that she sees things or is she suggesting that if there is injustice there should be some recourse? Because I heard some comments made from the Minister in one of her speeches which suggested that she really saw the pathway, for example, to discrimination and unjustified action as still being available, etc.

So is she saying that “No, this is wrong. Duncan Webb’s wrong because there will still be pathways to justice here if, maybe, the bar is higher.” Is that what she’s saying? Or is she saying it’s OK to be unjust in this period; workers in this situation just have to accept that they will pay a price here because it’s better in the long term for our people across the country to allow injustice of any form or favour? I’d like an answer to that question. Thank you.

Thank you, Madam Chair. I appreciate the opportunity to take a call on this bill. This is the first contribution that I intend to make throughout this debate, and later on in the debate I will bring some amendments that I intend to speak to, but for this first contribution I specifically want to ask the Minister about the engagement that she has had, particularly with workers who have been affected in the past through 90-day trial periods, to specifically check and see what has been the impact on their lives.

This is something I can talk to from personal experience. A member of my family was dismissed under a 90-day trial and I wanted to bring that to the House tonight because I think it’s really easy for those who are promoting these types of trial periods to talk around the rights of employers and one of the things around the Employment Relations Act is it does actually specify the rights for employers; it specifies the rights for employers and employees.

So I don’t think anyone in on this side of the House is suggesting that there shouldn’t be a process for dismissal of someone who is not performing their job, but the particular experience that my family member had was working in a job that they had worked in previously. They had worked in the industry previously in a number of roles in the hospitality industry, and so it wasn’t a job that they didn’t know how to do or didn’t have experience in. I particularly wanted to ask the Minister what consultation engagement she’s had with these groups of workers to really understand the impact on them, because my family member was dismissed and the way in which he was dismissed caused him significant mental health issues for a number of months following. The way in which he was dismissed was that he was brought into a busy cafe, in front of many customers, and sat down across the table and told “Collect your knives; leave.”

When someone is in their 20s and that’s their experience in employment, it’s devastating. He wasn’t told why; he had been in the role—I think it was day 88 or 89; he’d been in the role for nearly 90 days, hadn’t any matters raised with him or any concerns. He’d worked in previous hospitality jobs in the exact same role, never been dismissed, never been given a warning, never been late for work, never underperformed, but something had obviously disconnected in the employment relationship, which we know happens. I’ve worked on behalf of employers, by the way. I’ve given employment advice to employers, including performance advice, including issuing people with warnings, including dismissing people, and including putting people through redundancy. So I have actually, as well as having been a union organiser, worked on the other side, so I just want to put that on the table.

My specific question to the Minister is around has she actually sat down and talked to those workers, like my family member—the mental health impact, for months; he never knew what he did wrong. We all want to see young people succeed in their employment but one of the things about the Employment Relations Act is it talks about good faith. That behaviour is not good faith from an employer, and so I really do want to get to the bottom of what the Minister really sees is the impact on, particularly, our young people in the beginning of their careers, to ensure that they are actually heard and consulted through this process.

I ask this question because we’re not putting this through a select committee, so we’re not having the opportunity. I just wanted to make that point, which is one of the reasons why the scrutiny from our side is so important and why I do seek to make a number of calls to ask a number of questions of the Minister. We’re not allowing people like my family member to actually make a submission like the one I’ve just made, and there are many more examples like that—make a submission of that nature to a select committee.

My specific question to the Minister is: through this process, before actually coming to the House and bringing this legislation, has she sat down with actual workers who have been on the receiving end of a dismissal under a 90-day trial and said, “What was your experience? How did this work for you?”, in order to actually help inform a piece of law that’s going to work for employers and employees because, as I’ve often said in this House, we have obligations to both parties. As parliamentarians, we’re here for all and so we actually need to consider the needs of everyone when we’re having this debate. So that’s my specific question to the Minister: has she actually sat down with young employees who have been subject to a dismissal under a 90-day trial and actually heard their stories, and does she have a response for them? Thank you.

I move, That debate on this question now close.

The Hon Dr Duncan Webb’s tabled amendment to clause 1 is out of order as not being an objective description of the bill.

The question is that Arena Williams’ tabled amendment to clause 1 be agreed to.