Employment Relations (Secret Ballot for Strikes) Amendment Bill

Here we are on another bill again debating that a principal Act be amended. The principal Act being amended by the Employment Relations (Secret Ballot for Strikes) Amendment Bill is the Employment Relations Act 2000, and is being done so that the Hon Tau Henare can get his way by imposing on union members the right for secret ballots for strikes. I find that very, very interesting, having just heard the previous debate, which was fascinating and where we talked about freedom of association, democratic rights, and the people’s right to choose, yet this member’s bill is from a National Party member who wants to impose decisions on the democratic decision-making of union members.

We have talked before about whether this bill is necessary. I want to be fair to the member Tau Henare and acknowledge that he probably had a genuine belief when he brought this bill to the House—

💬 Carol Beaumont: That’s fair!

I am a very fair person and I am generous. I was interested to go to the Transport and Industrial Relations Committee to find out whether there really was a problem on this issue. Guess what? We found out there was no problem. Not a single worker came to the select committee to say there was a problem and that workers were being forced into strike action because there was no secret ballot for strikes. We also found out that most unions already have this process and carry it out where practical. But it is not always practical and we have to remember that we live in a world that is way, way different from 1980 when the Hon Tau Henare was the worst union organiser in the world. He worked for the—

💬 Hon Tau Henare: Not very generous.

Not so generous, and I am sorry but I just could not help myself. We were talking about a time when we had compulsory trade unionism, and times were different then. That is Tau Henare’s experience and he used to go into workplaces and say: “Pull the pin. Everyone out! Tell those clerical workers”—those very militant clerical workers for whom he was the union organiser—“they have to pull the pin and take strike action.” I am sure there was the odd clerical worker who rang up Syd Jackson, who was the secretary of the clerical workers union at that time and said: “Tau Henare came in and told us that we have to go on strike today, and we don’t agree with that.” That was like 30 years ago, but times have changed.

The House finished a very interesting debate tonight about freedom of association and the rights of people to freely associate. I say to the ACT members who asserted, in their comments about freedom of association, that the right was just as strong on the other side of the argument, which is freedom not to associate. Actually, when it comes to workers’ rights and International Labour Organization conventions the right is much stronger in terms of freedom of association; absolutely much stronger.

We are talking about amending this principal Act, and wasting a lot of time on a members’ day, at the eleventh hour of Parliament, when there are a lot of other priorities or other things that we could be doing. For example, I was contacted tonight by someone in Christchurch and she said to me that she was not complaining but was only just surviving. She said she was a bit low at the moment. The car had blown up and she had to take a day off work to get the car organised to be fixed. She did not know where the money was coming from. There were no groceries this pay—or next, no doubt—but she did need a car to get to work. She wondered how she was going to cope with this. This bill would not be a priority for that person, and it would not be a priority for many, many people.

In fact, as I said, no one came to the select committee to say that Parliament needed to make this amendment to the Employment Relations Act. We have amended this principal Act on a number of occasions during this Parliament, all of them very unfortunate and very unnecessary amendments. They are unfortunate and unnecessary, and what we are now seeing, and what I hear every day through my email in-box, are the consequences of the amendments that this Government has made to the Employment Relations Act.

First of all, we had the 90-day trial period for workplaces of fewer than 20 employees. That amendment was deemed to be a success, and the Minister of Labour has gone around trumpeting that somehow that created 13,000 jobs. That is just rubbish. The research is so flawed. It is just rubbish to look at a time period of 3 months after that legislation was passed and say: “Oh, well, people employed in small workplaces have not lost as many jobs as people employed in larger workplaces and somehow that has created a whole lot of jobs.” On that basis, both the Minister and the Prime Minister went out and said they were going to extend the legislation. They have extended it now to all workplaces.

Of course they have amended the principal Act around a whole lot of other things, including the access of workers to their union organisers. I think this bill raises a really interesting question. In fact, it is the subject of a Supplementary Order Paper that I have introduced, which is about access to workplaces. This Government has restricted the right of workers to talk to their union organisers at work. What is more, it has restricted the right of workers to talk to their union organisers even when there is a health and safety matter involved. So one of the Supplementary Order Papers I will be introducing to amend the principal Act will state that where there is a requirement to hold a secret ballot for strikes, union organisers will not be prevented from coming into the workplace. Can members imagine it? We have a law on the one hand that says there has to be a secret ballot for strikes, then on the other hand we have a restriction whereby union organisers cannot come in and conduct that ballot. How ridiculous is that! I am really looking forward to the member in the chair supporting that Supplementary Order Paper when we get to that part of the bill, a little bit further along.

As I said, on going back to the priorities, I thought it was an interesting day in Parliament today, and not only in the general debate, where we heard some silly stuff. I do want to respond, if I may, to the Hon Jonathan Coleman, who made some allegations about things that I, allegedly, have been saying. He talked about his own electorate, but actually I work in the Northcote electorate, and I know there are people coming through my office door every day who are sick and tired of this Government amending the Employment Relations Act, and who are concerned about this silly bill—this unnecessary bill, this waste of time—when we have all of the other problems that are going on in the country.

We have just spent a lot of time debating a bill about voluntary student membership, but nobody wants it—nobody wants it. It is Heather’s last hurrah, and thank goodness for that. Maybe this bill is Tau’s last hurrah, although of course he will not get it through in this Parliament. Thank goodness for that! Just look at the member in the chair; he does not care. He is going “Oh, oh, we don’t care!”, and that shows the commitment he has to the bill. I have not picked up any—any—real passion from the member since we went through the select committee process, where he found out that no one supported the amendment of the principal Act. No one supported it; it was some mad idea that he got from the 1980s when he was the worst union organiser in the world. That is some mad idea, some residue; that party has not been able to produce a single worker who has said there is a problem.

The fact is that we have unions today that are grown-up, responsible, and modern, and that deal with their members in a democratic way. They have rules that deal with these things. Times have changed; things are different to the time when Tau Henare was rampaging around as a union organiser for the clerical workers union, on the payroll of low-paid clerical workers, and trying to pretend he was important.

On the back of that he has become the most famous waka-jumper in the world, as well as the worst union organiser in the world. He went, of course, from the New Zealand First Party, and I remember—because I live out at Waitakere—the signs, I tell Tau Henare: “New Zealand First will not go with National”, which of course meant that those members would not amend the principal Act, but away he went.

I will take just a very quick call. Never once did I tell anyone in the clerical workers union to go on strike. If there ever was a time when there was a need to withdraw the labour of those workers, it was certainly done by secret ballot. My question asks why that is not allowed to happen for everybody.

💬 Darien Fenton: It does happen. You don’t need rules to say it should.

That member over there just happens to dislike Sir Peter Leitch so much she calls him the “Mad Butcher”, but tonight there is no doubt that Darien Fenton is now known as just plain mad.

But let us get serious about this. They said something here that I need to respond to, and that is—

💬 Hon Steve Chadwick: Raise it up; pick it up.

Hon TAU HENARE:—where did this—well, I will pick it up. I will pick it up.

💬 Darien Fenton: Lift your game. Lift your game.

I will pick it up. Well, actually it is not me who needs to lift their game. If I was on 28 percent, yeah—OK, I would. But we are not. We are on 50-odd percent. It was a miner’s wife—a miner’s wife—who asked the question: why could her husband not have a secret ballot when the miners withdrew their labour? Why could they not have a secret ballot?

💬 Darien Fenton: One person in 20 years.

Oh, OK. So it is all right for everybody else, but it is not all right when one person says “Actually, I’d like a secret ballot, because I want to be able to have the same rights and privileges as electors in this country. They go behind closed doors, or behind a screen, and they freely make their choice whether it is yes, or no.”

💬 Darien Fenton: Where’s the evidence? Which strike was that? When was it?

If that is what that member over there dislikes, well then, that is fine. She should go and live in 1930s Germany. But the fact of the matter is that everybody should have the right to vote without that sort of encumbrance on them. That is all I have to say and, most probably, all I have to say for the rest of these proceedings.

I rise to speak to clause 3 of the Employment Relations (Secret Ballot for Strikes) Amendment Bill, which is one of the worst pieces of legislation I have seen come into this House. It is bad because it is so completely unnecessary, and because it is probably the worst bill I have ever seen in terms of drafting. I was on the Transport and Industrial Relations Committee, which dealt with this bill, and when it came through it was so poorly drafted that its meaning was that there had to be a ballot. It did not matter what the conclusion of the ballot was; there just had to be a ballot. There could be a ballot and the vote could be lost, but the union would still comply.

Anyway, going to the principles of the Act—

💬 Jo Goodhew: I raise a point of order, Mr Chairperson. I seek your reassurance that we are talking about clause 3, or am I mistaken?

The CHAIRPERSON (Lindsay Tisch): We are talking about clause 3. I indicated to a previous speaker to come back into line. The member in charge of the bill did some rebuttal, and that was acceptable. I have allowed some leeway. But we are on clause 3, and I do ask that we focus on that from now on.

Thank you very much. That is entirely what I was going to do, as I said when I stood up, I say to the whip opposite. Let us talk about the principal Act, shall we? Clause 3, of course, is “Principal Act amended”. I will make sure that I do a very thorough analysis of the principal Act for the whip opposite.

The principal Act that is being amended is the Employment Relations Act. It is very important legislation, because it was a fundamental shift from what was one of the worst pieces of legislation this country has seen. That legislation caused genuine grief and trouble, and led to a low-wage economy. It was, of course, the Employment Contracts Act.

The Employment Relations Act 2000, which is the principal Act this bill seeks to amend, is a substantial Act of Parliament. I thought I would just talk a little about the objects of that Act, then link to how this bill relates to those objects, I guess, and talk about the implications of those objects for this bill. The object of the Employment Relations Act, under section 3, is to “build productive employment relationships through the promotion of good faith in all aspects of the employment environment and of the employment relationship—”. That is done by certain things, such as “by recognising that employment relationships must be built not only on the implied mutual obligations of trust and confidence, but also on a legislative requirement for good faith behaviour;”. This is relevant to strikes, so I will link these two things together.

Let me finish by talking about the other objects of the principal Act that we are amending. Secondly, it achieves its object “by acknowledging and addressing the inherent inequality of power in employment relationships;”. I do not think that members on the other side of the Chamber quite grasp that: there is actually an inherent power imbalance in employment relationships.

Thirdly, the bill serves to promote collective bargaining. The strike question is absolutely linked to collective bargaining, because the right to strike under the Employment Relations Act is really constrained to two main areas. The first is around collective bargaining. When one is in the bargaining period, one has the legal right to strike under New Zealand law. The second main occasion when one has the legal right to strike in New Zealand is over a health and safety matter. The objects of the Act also include “protecting the integrity of individual choice”, which might be relevant. Members opposite might say that that is what this bill is about, so we will come back to that as well. Further objects are “promoting mediation as the primary problem-solving mechanism; and … reducing the need for judicial intervention;”. Those are very interesting, and I will come back to those.

The other main object is to “promote observance in New Zealand of the principles underlying International Labour Organisation Convention 87 on Freedom of Association, and Convention 98 on the Right to Organise and Bargain Collectively.” As I have said, strikes are related to the question of bargaining collectively.

Let us look at what those objects mean in relation to this bill, which serves to amend the principal Act, the Employment Relations Act. I know for a fact that the good-faith relationships that are referred to in the object of this Act apply in multiple ways. For example, a union has a good-faith relationship with its members, a union has a good-faith relationship with the employer, and so on. An employer has a good-faith relationship with employers’ organisations. It is kind of balanced; all parties have good-faith obligations to each other.

The reason I point that out is that unions do have a good-faith obligation to their members. For argument’s sake, let us say that a union official was to force a member to take strike action. I do not believe that that is actually possible, and I have been a union organiser myself, but let us say that it is possible. In fact, that member has the absolute right under the Employment Relations Act to say that their union is not acting in good faith towards them, because it was forcing them to do something they did not want to do. The member would actually have a legal remedy for breach of good faith. That exists already.

The other thing that is particularly interesting is the issue of reducing the need for judicial intervention. Because the Employment Relations Act is about relationships—the wording of the bill was quite deliberate—the idea was that the employment relationship would be based on good faith, and parties would try to deal with any problems at the lowest possible level. That was part of the underpinning basis of this legislation. That meant that the problem was ideally dealt with on the shop floor by having a conversation, and if it could not be sorted that way, both parties would go into mediation or get some assistance like that, as opposed to getting into a legal situation.

One of the real concerns that many of us had is that the bill that Tau Henare is putting up will actually give employers the right to take legal challenges against a union’s strike ballot. There have been some quite heavily contested collective bargaining situations in New Zealand’s history, where workers are well organised, they are in a union, and they are trying to improve their lot, but unfortunately the employer is not coming to the party. They are not making progress, and the workers decide to take strike action to put a bit of pressure on. That is one of the two main reasons, as I said earlier, that someone can legally take strike action in New Zealand. Under this legislation, they would conduct their ballot. Actually, as my colleague and friend Darien Fenton has said, that would be the case anyway because that is what unions already do. Under this legislation, they would conduct their ballot. This amendment bill will give the employer the right to then intervene and have a legal argument about whether that ballot was conducted correctly. We know—and this was drawn to the select committee’s attention; I am not making this up—that in a number of quite significant cases overseas that is precisely what has happened. Employers have used that sort of process to intervene judicially, to go through a very long and costly legal challenge around the strike ballot, and to actually undermine the workers’ ability to organise and collectively bargain. That is one of the genuine worries that people have about this bill.

The Employment Relations (Secret Ballot for Strikes) Amendment Bill amends the principal Act, the Employment Relations Act, but in my opinion it is fundamentally at odds with the objects of the Act it is amending. I do not know—I am no expert on these things—but it seems pretty odd to amend an Act in a way that is completely counter to the objects of that Act.

Just to reinforce that point, it explicitly says in section 3(a)(vi) of the principal Act, the Employment Relations Act, that the object of the Act is to reduce the need for judicial intervention. My contention is that this bill potentially undermines that section in the Employment Relations Act. Certainly it is unnecessary, given the provisions in section 3(a)(i) about employment relationships being based on good faith, and the requirement for a union to act in good faith towards its members. Arguably, and quite compellingly, there is a clear requirement on unions to have a democratic process by which to make a decision around taking strike action. Funnily enough, that is what they do. Anybody who is involved in employment relations will know that in collective bargaining when the issue of strike action comes up, there will be a secret ballot. So this bill is unnecessary.

I think it is very interesting that none of the members opposite—ACT or National—have thought about the other side of the equation. As I said, the Act itself is quite balanced. It puts these requirements on unions and workers but also on employers. Yet this bill fails to put any requirements on employers.

I move, That the question be now put.

Along with my colleagues, I rise to take a call on the Employment Relations (Secret Ballot for Strikes) Amendment Bill. As Carol Beaumont was saying just before me, the whole purpose of the bill is at odds with the principal Act. This bill amends the Employment Relations Act. For those of us who were union officials or workers in 1991, we remember the Employment Contracts Act and the havoc that caused. In fact, if I am really honest, it was the Employment Contracts Act that inspired me or drove me to become interested in politics and to stand for Parliament.

But I will go back to clause 3, because I know you would like me to do that, Mr Chairperson. It amends the principal Act. The very purpose of the change to the Employment Contracts Act—to change the name in itself—says a lot. It changed from a contract, which is a business deal effectively, into a relationship. Calling it the Employment Relations Act was actually recognising that that is what employment relationships are about. I keep saying “relationship”, but between employers and workers it is really important that it is based on a meaningful relationship where there is mutual trust, mutual respect, and fair treatment.

The very purpose of this amendment bill is to amend an Act based on relationships, where there is transparency and honesty, and to go instead to a Draconian, old-fashioned way—

💬 Darien Fenton: Very old-fashioned.

A very old-fashioned way of requiring—

💬 Darien Fenton: No idea.

—no idea whatsoever—a rather long, undulated process for doing what unions already do. It is also a costly process. The reality is that, frankly, workers on the rare time—well, it is not so rare now that the National Government is in—did go on strike, and union officials like me treated it very seriously. One is asking workers to cut a day’s, or whatever’s, pay. That is not something that any union official takes lightly in these harsh economic times. So of course there is a secret ballot.

This presumption from Tau Henare—who is actually, without being too mean about it, a little teensy bit of a bully—is that that is the way union officials operate as well.

💬 Todd McClay: I raise a point of order, Mr Chairperson. I take offence at that. He is not a little bit of a bully.

The CHAIRPERSON (Lindsay Tisch): No, look, the member whom that was a reflection against had the opportunity and he did not take it. But I did tell the member to come back. We are on clause 3. I would like her to focus the rest of the time on clause 3.

Thank you, Mr Chair. I actually will focus on clause 3. I thought that was what I was really doing.

I was talking about amending the Employment Relations Act, which is based on relationships, and bringing in a Draconian, old-fashioned—I am sure that is acceptable to the member—way of dealing with the relationships. That is at odds with the principles of the Act. It is interesting because if we look at the amendments to the Employment Relations Act, I feel quite a bit of pride that the amendments that were made under Labour actually improved the Act—they improved it. Then we saw something like the “90-Day Fire at Will Act”, which was actually an amendment to the Employment Relations Act—am I right there?

💬 Darien Fenton: Yes, it was.

So I am still on track here. That amendment is at odds with the very principal Act that is being amended. That is my point.

I am very interested for the member who has put this bill before the House to take a call on this and perhaps reassure the Committee or try to convince us in some way or another just what it is all about. It just does not make sense. If the member is willing to take a call, I think we could go into much more detail about the Act that is being amended. Perhaps the member would like to take a call and explain what the Employment Relations Act means to him. Perhaps members on the other side of the House, instead of flippantly taking closure motions, will actually stand up and take a call.

I move, That the question be now put.