Employment Relations (Secret Ballot for Strikes) Amendment Bill

Clause 2 is on the commencement, which is a reasonably precise and tight debate.

I think that the commencement date should be put out several years.

💬 Kelvin Davis: For a century.

No, I think 10 years would probably be a good start. I say that because I think the Employment Relations (Secret Ballot for Strikes) Amendment Bill itself offends basic rights. There was a discussion previously on the title, which unfortunately the Green Party did not get a call on.

💬 Hon Tau Henare: You weren’t here.

I was here. It is an unbalanced bill. It talks about workers’ secret ballots for strikes, but it does not take into account the other side of the industrial equation—that employers should also, if there is going to be a secret ballot, have a secret ballot, as is proposed in a further amendment that we will be discussing later, whereby shareholders should be balloted secretly before they lock out workers, because there is equality in the Employment Relations Act on strikes and lockouts in that respect.

I think the commencement date should be put out for 10 years, because, if we look at the justice of it, we should ask why the State should control voluntary organisations. That is what this is about. In spite of National members talking about freedom and nanny State and all the rest of it—all of the things they have talked about over the years—this is the ultimate nanny State measure. The State is controlling such an intimate thing as how people in a voluntary organisation can decide collectively whether they should go on strike. That should not be the role of the State.

In fact, let us look at the practicalities of the situation. I have been in several situations where there have been strikes. Sometimes there have been secret ballots and that has been very good. Sometimes it has been impractical to have secret ballots. That is the situation and that is the way submissions went to the select committee. The Service and Food Workers Union and, I think, the Unite union, put across the idea that in some of the industries they organise, such as fast food outlets and whatnot, it is impractical to have a secret ballot, so it should not be in law. The Green Party completely opposes this provision being in law. It is impractical and will act against the interests of unions.

Also, as was mentioned in some of the previous discussion, it will allow, because it is in statute law, employers to try to trip up workers all the time. Employers may say: “Well, this person didn’t get a note, and this worker didn’t get a notice of the secret ballot.”, because that worker might have shifted address or something. They may hold up the strike action of the union concerned until that is all sorted out in a court. Because the employers always have more money than unions, they can also bankrupt the unions by dragging them through repeated court proceedings about whether a strike ballot was properly implemented. This is highly prejudiced against one side of the industrial disputes—that is, the workers. I think that putting the implementation of this bill out for 10 years would give us time to think about it. It would give time for members of this Parliament to go down to workplaces to talk to workers, go into fast food outlets, talk to the Unite union, talk to the Service and Food Workers Union, and talk to employers about whether they want to have an imposition on them of all their shareholders having a secret ballot before there is a lockout, as might be the case if Darien Fenton’s amendment is passed in relation to clause 4. There is still water to go under the bridge and I think that 10 years’ worth of water going under the bridge would be quite good.

I have to say that I agree with the member Keith Locke. I think that the Employment Relations (Secret Ballot for Strikes) Amendment Act should come into force some time far, far away from 1 year after the date on which it receives the Royal assent, which is what is currently in the bill. Perhaps 10 or 15 years after the date on which it receives the Royal assent might not be such a bad idea, because this is absolutely ridiculous legislation. But it is more than just ridiculous. The logic behind it—as far as I can tell, and I use “logic” in the broadest sense of the word—is fundamentally flawed.

This is a bill that will put in place secret ballots for strikes—only for strikes, I might add—when, in fact, that is what generally occurs. This is based on some premise of a time past. I just thought I would elucidate to members opposite what a strike is, because we are talking about bringing into commencement in a year’s time legislation that will require secret ballots for strikes. Now a strike can be a number of things. It is the “walk out of the door” scenario that people think of—the full withdrawal of labour, but it is other things as well. It is also refusing or failing after any such discontinuance to resume or return to employment. It is about breaking employment agreements. It is about refusing or failing to accept engagement for work in which one is usually employed, and it is about reducing normal output or the normal rate of work.

I go into some depth on this word “strike” because it is not an easy thing to do. It has never been an easy thing for people to do. People think about it and make a decision to strike in very extreme circumstances—usually when they are trying their level best to improve their wages and conditions of employment, and that has become tougher and tougher. As the economy has tightened up under a National-led Government, and when employers feel, perhaps, more emboldened to play a harder ball, if you like, it has become tougher for unions to negotiate collective agreements and get reasonable outcomes for workers. Striking is a last resort. It has always been a last resort to try to improve wages and conditions of employment.

This legislation, which would come into force a year from receiving the Royal assent, as provided for in clause 2, the commencement clause, would require strike action—and that is quite a broad thing, as I have just outlined—to have a secret ballot before it could happen. And that secret ballot could be challenged by employers. Later on we will talk about that a little bit more, but many of us can see that this could provide grounds for litigation driven by employers trying to stop unions taking action to try to improve their wages and conditions of employment. So, again, that is another reason to push out the commencement date of this bill, because it will lead, potentially, to significant legal challenges by employers hell-bent on stopping workers improving their wages and conditions of employment through taking industrial action—through taking strike action.

Now, of course, the other thing this bill does is that it focuses only on one side of the coin. Industrial action has two parts: strikes and lockouts. We can see that they are one part after the other in the Employment Relations Act: section 81 is around the meaning of strikes and section 82 is around the meaning of lockouts. But that is not affected by this bill, so the commencement would bring into force a regime that applies only to one part of the industrial relations landscape, not the other, which is the lockout. The lockout is effectively where employers take actions that stop workers doing their job and that also therefore impacts on these people’s pockets. It means that they are not earning money. Certainly there have been some very, very ugly lockouts in this country’s history and I am not talking just about the 1951 lockout, but, much more recently, the Progressive Enterprises lockout—and that would not require any sort of ballot. It did not require any sort of ballot. A similar, very large-scale lockout like that, which put enormous pressure on to very low-paid workers, would not, under the provisions of this bill, require any form of ballot, any form of consultation, and the management of a company could just go ahead.

Keith Locke says that we should push the commencement date of the Employment Relations (Secret Ballot for Strikes) Amendment Act out 10 years, and Carol Beaumont says 15 years. I say let us push it out a century, because even in 100 years’ time we will not have more than a handful of people complaining about the whole secret ballot thing. In fact, why do we not just push it out a millennium—why do we not just push it out a thousand years, because in that time there will still be only a handful, if that, of people who actually feel the need for this bill other than Tau Henare and perhaps a few thousand of his descendants who will want to maintain Papa Tau’s legacy of giving it to the workers.

Keith Locke was right: this is about the National Government interfering in the intimate workings of a voluntary organisation. Now why on earth would it want to do that? And who is going to be next? Meals on Wheels—“Sorry, you can’t have cabbage on Tuesday, you’ve got to have peas.” This will be the National Government’s next step in interfering in other voluntary organisations and what they do. After that, it will be Victim Support, after that it will be the Boy Scouts, and after that, who knows? The world is at Tau Henare’s mercy when the Government is interfering with voluntary organisations around the world. It will be Volunteer Service Abroad next: “Sorry you can’t go to Tonga for your voluntary service abroad. You will have to go to Kiribati.”

This will be the start of something big for Tau Henare. Let us start with the unions. Let us interfere with the workings of that voluntary organisation. Let us deal to the unions, and then we can take on the rest of the voluntary organisations.

It is a nonsense bill. There is no need for this bill, as we have already outlined in the title clause debate. As well, there is an imbalance here. There is a lack of fairness. We want to know what it is about National members that they do not understand fairness. National’s tax is not fair. It is tax cuts for the wealthy. Here is another thing that is not fair. Unions will have to have secret ballots, yet employers will not.

The CHAIRPERSON (Eric Roy): Commencement.

Commencement. Again, within 1,000 years of the commencement of this bill employers will not have to conduct secret ballots of their stakeholders when they want to lock out these horrible union workers. Not within 10 years, not within a decade, not within 15 years, not within a century, not within a millennium will employers have to do what Tau Henare wants the unions to have to do, and that is hold these secret ballots. For what reason? For what purpose? Oh, the bullying, he says. Well, there is a story about the pot and the kettle, and I am not sure which one Mr Henare wants to be, when it comes to bullying. His overbearing attitude is exactly what he is accusing unions of having.

💬 Hon Maurice Williamson: What’s wrong with a secret ballot?

What is wrong with it? Fairness, I say to Mr Williamson. There is nothing fair about this, when we are expecting a voluntary organisation to have to have secret ballots, but National does not expect employers to hold secret ballots of their stakeholders when they want to lock out workers. It is the fairness.

There is a lack of fairness, and again, National does not understand fairness. Its tax cuts were for the wealthy. It was not fair that the wealthy received a $1,000 a week tax cut and the low-paid workers received something like 25c an hour in their tax cut.

I feel it does not matter how far out we push the commencement date. It will not make a difference whether it is 1 year, as stated in the bill, or whether it is 10 years, 15 years, a century, or a millennium. It will not make a difference because there is not a problem. As Jacinda Ardern put it so eloquently, this is a bill looking for a problem. There is nothing here that will be remedied by commencing the bill at any stage.

I move, That the question be now put.

I thank you very much, Mr Chairperson Roy, for giving me the opportunity to talk to the commencement clause of the Employment Relations (Secret Ballot for Strikes) Amendment Bill. I feel like a bit of an auctioneer, because first we heard that the bill should come into effect in 10 years, then 15 years, and now we have heard 1,000 years—sold to Mr Davis. This bill should not come into effect at all. It will take considerably longer than a year to figure out why this bill is here, at all, and to figure out the motivation for it and what positive effect it will have on any workers who are slogging their guts out and having this measure forced upon them. It will take a considerable amount of time—more than just 1 year, which is provided for in clause 2, the commencement clause—for us to sort out why this bill is here. Mr Davis talked about how on many occasions we have asked what the motivation for the bill is, what the problem is, and why this bill needs to be passed. It will take us considerably more than a year to figure out why, on the grounds of democracy, National thinks this bill needs to be passed.

We have no problem with secret ballots. They are widespread at the moment, and have been well used by unions to adjudicate whether a strike is to be called or effected. But there is some puzzlement on this side of the Chamber as to why the Government wants to make it compulsory for unions to have secret ballots for strikes to be called.

On a number of levels it is impractical. Keith Locke in his contribution earlier talked about how difficult it would be in practical terms to organise a secret ballot for the likes of fast-food workers, such as people who might work at restaurants like McDonald’s, which opened in Porirua in 1976. It is also impractical in terms of the longstanding history unions have already of making sure that these secret ballots happen, in order to give their members a say.

There were a number of submissions on this bill from the Employers and Manufacturers Association and also, if I remember correctly, from Business New Zealand. They wanted to impose an amendment to the bill to make sure that for the vote to strike to be successful, the threshold for the secret ballot would be 75 percent. Therein lies some of the motivation as to where the benefit from this bill would lie. In relation to the commencement, we will need a lot more than just 1 year to sort out why this bill is needed and how it will protect the rights of workers, as Mr Henare said when we were debating clause 1.

I think it was also Mr Locke who commented on Mr Woodhouse’s contribution, in which he said that he thought we should make secret ballots compulsory. I agree with Mr Locke that the bill is nanny State and it is controlling a voluntary organisation, and we should not have to do that, especially when at this stage, as far as we on this side of the Chamber are concerned, the unions that use secret ballots are using them quite effectively and fairly. So again, we ask why this bill needs to be passed. Again, we will need a lot more than just 1 year from the bill receiving the Royal assent to figure out why this bill is here.

This bill, in essence, will enforce compulsory secret ballots on unions when calling a strike. There has already been some talk about this bill changing the very nature of the definition of a strike. A strike will not be able to be called unless a secret ballot is taken, and that fundamentally changes the rights of workers in terms of their ability to take industrial action. If a ballot is not taken but strike action is called, then a union could be tied up in lots of red tape and, potentially, big legal bills, because their action could be deemed illegal. That is one of the serious dangers contained in this bill and, again, that is why we will need something like 1,000 years, I say to Mr Davis, to sort out why this bill has come before the House. The commencement of this bill should not be as stated in the bill at the moment. One year is simply not enough time for us to sort out this mess.

We have had problems with the title. Mr Henare has not admitted to the fact that he botched up the title, and included workers in the title when they are not included in the primary legislation. But, again, the commencement of this bill should not be 1 year following its receiving the Royal assent.

I move, That the question be now put.