Employment Relations (Allowing Higher Earners to Contract Out of Personal Grievance Provisions) Amendment Bill

I move, That the Employment Relations (Allowing Higher Earners to Contract Out of Personal Grievance Provisions) Amendment Bill be now read a first time. I nominate the Transport and Industrial Relations Committee to consider the bill. The title of this bill is long and a bit cumbersome but it neatly and appropriately sums up the intention and the purpose of the bill. This is a bill that will seek to allow high-income earners an opportunity to contract out of the existing provisions of Part 9 of the Employment Relations Act. So for employees who are earning more than $150,000 a year, this will be of great interest. This bill would insert a new section 102A into the principal Act, allowing that non-compulsorily and by mutual agreement, and, following the receipt of independent written legal advice, a contracting out of the provisions of the principal Act could occur.

A casual observer might ask, well, why an employee would want to do that and what might be gained. The benefits to an employer are pretty obvious, but why would a high-income earning employee want to enter into such an arrangement? Well, the answer to that is simply that being able to terminate an individual employment agreement with certainty, on mutually agreed terms, is of business and commercial value to that employer. That certainty of the ability to end an employment agreement without the threat of a personal grievance sword of Damocles hanging over the head of the employer has value, and that value is something that the employee can turn to their own advantage.

What we are actually talking about here is severance—severance payments. There is nothing new or unusual about severance payments being negotiated. In fact, many senior executives negotiate them already. They are quite commonplace. Usually they reflect the nature of the role and the likelihood of it having a finite term. We are not talking, here, about people who generally are entering into career employment designed for a working lifetime. Senior executives are often employed on the basis of a certain job being done and completed, and, then, once that job has been done and completed, knowing full well that the terms of their employment will come to an end. Equally, businesses sometimes want to restructure. They want to rearrange their business affairs, and senior executives will negotiate a severance package that takes that into account—that applies that kind of expectation and eventuality. Employers accept that and that they will then include, as part of the employment package, a pre-negotiated, pre-agreed exiting arrangement on terms that are mutually agreed and, often, very generous.

The problem, then, is that having negotiated a severance package, the prospect and the potential of a personal grievance action still hangs over the head of the employer because of the provisions of Part 9 of the principal Act. My bill seeks to give employees the ability to agree to contract out of Part 9 should they wish, and the price they extract from an employer for doing so will obviously be a more generous severance package than would otherwise have been negotiated. If the employee decides not to contract out, then the provisions of the principal Act remain in place. But for the employer, the incentive is then to be generous with the severance arrangements or run the risk that the employee will not opt out, in which case the employer is still likely to be suffering the threat and risk of a personal grievance.

That certainty has real value to both the employer and the employee. It is a negotiated arrangement—non-compulsory, not mandatory, but a negotiated, agreed arrangement between two consenting parties. If someone is sufficiently skilled to command a salary of $150,000 or more, he or she is not so vulnerable that they need to be protected from even their own employment agreement. Well-paid chief executive officers (CEOs) and senior executives are very capable of agreeing and bargaining for themselves.

Under current law they have the automatic right to challenge a severance payment, the same as everyone else. Currently a senior employee whose contract was terminated would be paid out the remainder of the contract, and often that is generous and large. But the employee is then also free to take out a personal grievance, which could be seen to be excessive. Often, in the real world, an employer will provide a golden handshake to avoid the mere threat of a personal grievance. I do not think that is fair and I do not think that this bill provides any kind of encumbrance that would be negatively impacting on employees should they choose to take it up. But that certainty in advance of a finite severance package has value both to an employee and an employer.

So this bill will protect businesses from being taken advantage of by costly personal grievance claims that negate the previously agreed severance arrangements. There is another obvious benefit to taxpayers in this bill. If high earners are able to sort things out for themselves—and, in my view, they should—then there are obvious benefits in not clogging up our employment courts or mediators.

There are a couple of things that I want to make clear at the first reading. First, there is no compulsion here. Just because an employee has a gross income of more than $150,000 a year, it does not mean that there is an automatic opt-out provision. Contracting out could occur only if the parties agree and if it relates to an individual agreement. The negotiated agreement must be in writing and signed by both parties. Further, it must be witnessed by a lawyer and the employee must have the independent legal advice provided to them prior to that signing and witnessing by the lawyer. So this bill does not go as far as the situation in Australia where under their Fair Work Act their unfair dismissal rules simply do not apply to people who earn above their high-income threshold, which is currently about A$140,000.

It is worth noting that for the purposes and objectives of this bill, nominating a salary or income threshold is more effective than nominating an employee title such as chief executive or chief financial officer or CEO or something like that. That would create legal uncertainty and, of course, it would be very easy to avoid and get around.

I hope that this bill will be sent to the select committee. That being the case, there is an area that does need the attention of the select committee and it relates to adding in protection for employees, no matter how high their gross earnings are, from situations that might simply be regarded as those of a bad employer, such as discrimination, sexual or racial harassment, or where the employer fails to comply with their legal obligations. I believe those protections can and should be inserted at the select committee.

I would like to acknowledge the Hon Paul Goldsmith, who was the original author of this bill and had it placed in the ballot. He was motivated to do so following conversations with employers, with business organisations, and with high-income earners. At the time when the bill went into the ballot it was met with wide and popular acclaim. The then chief executive of Business New Zealand, Phil O’Reilly, was quoted as saying: “Excluding higher-paid employees from personal grievances would help focus employment law provisions on those who had most need of employment protection,”. He went on to say: “and [that] would help reduce the number of personal grievance cases clogging up the legal system.” Kim Campbell, chief executive of the Employers and Manufacturers Association was reported as saying: “This bill will give employers and the staff earning over $150,000 a year the ability to make their own arrangements should they fall out. High earners should be allowed to sort things out amongst themselves and at their own expense.”

Most informative was the then Labour Party spokesperson, one Andrew Little, MP, and he said that it was the sort of thing that a Labour-led Government would be keen to look at, especially for chief executives, and, subject to a discussion about threshold, he went on to say that he agreed with the bill in principle and “thought it was something that Labour would support to the select committee”.

This is a good bill. It is a bill that I think is deserving of time and consideration by a select committee. I know that if it goes to a select committee it will get some tweaking and some improvement, and I thoroughly and heartily commend it to the House.

Well, if any member of the House was considering voting against this legislation but was not quite sure whether they should or not, I think that speech will pretty much have done it. If that was an effort to encourage members of Parliament to vote in favour of this bill, from the member in charge of this bill, Scott Simpson, then I think if anybody needs to be let go from the National Government, it is probably Scott Simpson.

It is true that Andrew Little said that there was some merit to the ideas behind this bill, but actually I think the reason why Scott Simpson’s first reading speech was so underwhelming is that he realised when he inherited the bill and actually looked at it closely that he has inherited one dog of a bill. We cannot vote for this bill for a variety of reasons, but principally because it is incredibly poorly drafted, ill-conceived, poorly thought through, and very poorly drafted.

As Scott Simpson said, what it allows is for employers and employees to contract out of Part 9 of the Employment Relations Act. If you would listen to Mr Simpson, you would think that just means that an employee could not take a personal grievance for unjustified dismissal. Let us actually have a look at Part 9, because Part 9 does an awful lot more than that. Let us look at section 103, which relates to personal grievance. It says that an employee may take a personal grievance because they have a claim that the employee has been unjustifiably dismissed. I think that is the bit that Mr Simpson wants us to think about when he is talking about this bill. But then it also goes on to say that an employee may take a personal grievance if they have been discriminated against in the employee’s employment, or if they have been sexually harassed, or if they have been racially harassed, or if they have been subject to duress in relation to their membership or non-membership of a union. So Mr Simpson wants people to be able to contract out of basic human rights in the workplace. I say that it does not matter how much you earn, it does not matter what position you hold in a company, you should be entitled to your basic human rights.

Let us look at what else Mr Simpson would like employees to be able to contract out of. Let us look at further tests for discrimination. Section 104 says that “an employee is discriminated against in [their] employment if the employee’s employer or a representative of that employer, by reason directly or indirectly of any of the prohibited grounds of discrimination specified in section 105, or involvement in the activities of a union in terms of section 107,— … (b) dismisses that employee or subjects that employee to any detriment, in circumstances in which other employees employed by that employer on work of that description are not or would not be dismissed or subjected to such detriment;”.

In other words, if they are discriminated against in some way under any of the following: because of their sex—so an employer could suddenly decide that he does not want to employ women any more, so a woman who is subject to the provisions of this bill could be dismissed without any recourse. Because of their marital status—so some weird employer could decide that they do not want to employ unmarried people or married people, or they might not like people in same-sex marriages, and, in fact, sexual orientation is one of the grounds in section 105. Religious belief, ethical belief, colour, race, ethnic or national origins, disability, age, political opinion, employment status, family status, or, as I said earlier, sexual orientation—so Mr Scott, again, would have people contract out of their right not to be discriminated against on those grounds. Again, that is a massive breach of people’s fundamental human rights. I just think that Mr Simpson and whoever drafted this bill—it was not Mr Simpson; he inherited this bill—simply did not think through the implications of this legislation.

Part 9 of the Act goes on to deal with all sorts of other matters to do with how to raise a personal grievance: how to define sexual or racial harassment and a range of other things that are all eliminated in the event that someone takes up the opportunity to contract out of it. As Mr Simpson said, that then raises the question of what it would take to get someone to contract out of their basic human rights. Reading the commentary from the likes of the Employers and Manufacturers Association and Business New Zealand after this bill was first submitted to the ballot, you would think that this bill was actually going to be the end of golden handshakes. Well, it might be the end of golden handshakes and the replacement of them with the platinum handshake, because, let us be honest, anybody who is earning $150,000 or more—notwithstanding the fact that that threshold is far too low because it captures a lot of middle-management people in a lot of organisations—anybody contracting out at that rate or more is going to extract a very high price for contracting out of their fundamental human rights.

We could actually end up with one rule for ordinary working people, who are only able to get the kind of compensation levels that are accepted in employment agreement disputes—which are actually pretty capped and are not as out of control as some people would like us to think—and then there are the folks who contract out of the provisions of Part 9, who will be able to extract an enormous price. Of course, because of the type of people we are talking about here, I think a lot of employers will be quite happy to give not the golden handshake but the platinum handshake to people who want to engage in this.

I think this is a bill with a solution looking for a problem. As Mr Simpson said, people can already negotiate severance payments in the event that they do not want to go through the full Employment Relations Authority process or go to the Employment Court. So that option is already available to people, but they cannot be unjustifiably dismissed because of their sexual orientation, or their marital status, or their race, or their colour, or their ethnicity, or a whole host of other basic human needs. So, yes, you can negotiate a severance package if the employer just wants to quickly see you out the door because they are restructuring, or because they are not satisfied with the way you are doing your job, or your leadership in the organisation is detrimental to the employment of other people. If that is the case, then a payment can already be made, and out the door that person goes. This is basically saying: “We want to have that payment built into the contract at the beginning, and we want to probably increase that payment to convince people to take up the opportunity to contract out of Part 9.”

I just think this is so poorly thought through, so poorly drafted, and I am afraid, Mr Simpson—I know Mr Simpson said: “Oh look, I’d like the select committee to tidy up a few edges here.” It is not the edges; it is actually the core of this bill. This bill is fundamentally flawed—irrevocably flawed—and I think it would be a waste of the Transport and Industrial Relations Committee’s time to try to tidy up this poorly drafted, poorly thought through bill. I suggest to Mr Simpson that if he is genuinely passionate about this—which I doubt, given the enthusiasm that he displayed in his first reading speech—he go back to the drawing board and think this through. Actually, if he wants the support of Opposition parties, if he actually wants to talk through something that might actually work, give us a call. I have not heard from Mr Simpson about this bill. I do not know that any of my colleagues have heard from Mr Simpson about this bill. So if Mr Simpson actually wants to get support to put a bill like this through, then talk to members opposite and actually seek support for it. It is a dog of a bill, and we cannot support it.

I am very pleased to stand in support of this bill, as Andrew Little is as well. I believe that, as the previous speaker, Iain Lees-Galloway, has said, there is an opportunity for the Transport and Industrial Relations Committee to do some fine work in bringing some additions, adjustments, and perhaps some improvements to this bill. Then the people of New Zealand will see the great work this Parliament can do if we work together.

One thing to say in terms of the aspect of human rights, which the member raised: we do have a letter from the Ministry of Justice, from the chief legal counsel, who stated that they have considered whether the Employment Relations (Allowing Higher Earners to Contract Out of Personal Grievance Provisions) Amendment Bill, in the name of Scott Simpson, is consistent with the rights and freedoms affirmed in the New Zealand Bill of Rights Act 1990. They did state the comment that if the option is taken—and it is an option; it is not mandatory like the Australians have made this same provision in their law—whatever the employee and the employer have agreed to concerning the application of personal grievance provisions in their employment contract stands, provided specified conditions are met: “We have concluded that the Bill appears to be consistent with the rights and freedoms affirmed in the Bill of Rights Act.”

So what the select committee will be able to do is dig deeper and find out what those specified conditions are to ensure that the rights and the freedoms of New Zealanders are maintained while at the same time giving this provision in the employment Act. We understand and know that people in the market place and people in the political sphere, including the previous speaker’s leader, state that this is a sensible and useful proposal that would save taxpayers money and help free up court time, especially for those people who desperately need it, those people who find that employment exploitation happens in their lives—some of the people whom I know that member advocates for. Business New Zealand said the exclusion makes sense. The then CEO Phil O’Reilly said that currently a senior employee on a fixed-term contract whose contract was terminated would be paid out the remainder of the contract and would also be free to take up a personal grievance, which could be seen as excessive.

We are living in a period of time where employment law, employment contracts, are changing around the face of the world. It is important for us to consider these things and to be adaptive. Certainly, it is important that we understand that the idea of fixed-term contracts is happening more and more in the workplace, in the market place. In fact, the OECD said that there is a more intensive use of fixed contracts, and this provision in the law would apply particularly to that. It says that young workers have a twice-higher risk of leaving their job than older workers, but they also have a higher probability of finding a job when out of employment. This higher rotation rate is likely to be related to young workers trying to find the best match for their career development, but it is also because of a more intensive use of fixed-term contracts. What this bill does is give greater certainty to the employer and employee relationship. It is optional. It is it an opt-in provision, so that an employer and an employee can know what will occur if that employment relationship terminates.

Let me just finish in these next 30 seconds with a quote from Mr Blair Scotland, Principal at Dundas Street Employment Lawyers in Wellington. He said this: “If you think about it from an employee/employers’ perspective, if I’m the CEO of a company and I have a falling out with the directors, I really don’t want to harm my future employment prospects by splashing that out across the countryside. Likewise, if you’re the board of a company and you don’t like your CEO, if you treat that person poorly and it gets made public, how difficult is it going to be for you to recruit someone of a similar quality or better quality to come into your organisation …”.

I am rising to take the first call for the Greens on this very poorly thought-out bill, the Employment Relations (Allowing Higher Earners to Contract Out of Personal Grievance Provisions) Amendment Bill, in the name of the member Scott Simpson. I have to feel sorry for that member, because he inherited it from the Hon Paul Goldsmith, who had originally drafted it. As many of us who have spent time with Mr Goldsmith know, he has a very strong ideological stance, which takes him as far right as you can possibly get.

This bill allows employees who earn over $150,000 gross to voluntarily opt out of being able to take a personal grievance. We are opposed to this bill because not only is it badly thought-out, not only is it badly drafted, and not only does it breach the human rights of anybody who opts in to doing this but, actually, it is also a very slippery slope, in terms of what is natural justice and how natural justice is implied in the employment relations system.

This bill allows a worker who is on $150,000 or more to agree with their employer, at the start of their employment, that they will not be able to take a personal grievance. What that means is that they then have to get independent legal advice to do that. Then they have to sign away the right to take a personal grievance. I would like to remind the House that a personal grievance is not just for an unjustified dismissal; a personal grievance is a grievance where an employee has been sexually harassed in the workplace, has been racially harassed in the workplace, has been subject to duress about joining or not joining a union, or has had their health and safety breached by the employer. These are reasons for taking a personal grievance. The worker on $150,000 or more—if they are earning that—can opt out of that, but they do have to get independent legal advice first.

I do not know if the rest of this side of the House actually understands what happens when you apply for a job and get a job and negotiate an employment contract, but the power does not rest with the employee. The power rests with the employer. This is why it says in the actual purpose of the original Employment Relations Act that that is why we have it—because of the power imbalance between employer and employee. So I believe that this opt-out provision will be one of those things where it is just basically said, “Yeah, you can do this and we want you do this.” but it will become, in a situation where the employer wants it, part of the general provisions of the agreement as it is. This whole idea that there will be no compulsion is a rort—it is unlikely to happen.

The sponsor of this bill, Mr Simpson, has already signalled that there needs to be some amendments made to it, which highlights the fact that this bill is badly drafted and badly thought-out. I do not believe that it can actually stand the scrutiny that it needs to have during the select committee process. I believe that it is an incredible waste of the Transport and Industrial Relations Committee’s time to present this bill to it when, in fact, there are not that many people who will actually be affected by this bill.

My understanding—and we have looked at the research—is that there are about 48,000 people to whom this bill will apply. That is around about 1 percent—or less than 1 percent—of the workforce, that this bill will apply to. And I am just wondering: is it worth the House’s time? Is it worth the time of the select committee to actually create a bill that needs work—admittedly; the sponsor says it needs to be amended—and actually only applies to 1 percent of the working population, and breaches basic human rights. I think it is a complete waste of time and should be thrown out of the House immediately. We will be opposing it.

I am taking this call to support the Employment Relations (Allowing Higher Earners to Contract Out of Personal Grievance Provisions) Amendment Bill in the name of Scott Simpson. Actually, I want to congratulate Scott Simpson on his bill being drawn from the ballot. This bill, in the name of Scott Simpson, is to amend the Employment Relations Act 2000 to allow employees earning more than $150,000 as their annual gross salary to contract out of personal grievance provisions.

The personal grievance provisions in this bill can override all other agreements that the two parties might have entered into—that is the employer and the employee. Sharing my experience—before getting into Parliament I had the opportunity to work on both sides, as an employee and then later as an employer. From my very first employment, all I remember is the excitement of getting that employment agreement. All I looked at in the employment agreement was the number of hours and my job description. I have to say that when moving from one employment to another employment I was very lucky because there was no situation where I had to go back and look into my employment agreement to clarify the terms and conditions. I do not know whether it was just my luck or whether, unknowingly, I was wisely picking my employers.

Then later on, as an employer, I had the opportunity to work with very, very hard-working people. It was then when I realised the importance of having a really good employment agreement. It is always good to specify things in the employment agreement, and leaving very little to be interpreted later on. Employers can foresee some things that employees cannot. Employers know whether they are going to downsize their business in 3 years’ or 5 years’ time, whether they are going to upgrade the technology, or whether there is going to be a change of location, because that could create an inconvenience for employees. So there are a lot of things that employers can see but employees cannot, and it is really good to specify them in an employment agreement. We also know that if there is no employment agreement, the minimum employment standards still apply.

But this bill is special. This bill is to amend section 102 in Part 9 of the Employment Relations Act. Section 102 provides that “An employee who believes that he or she has a personal grievance may pursue that grievance under this Act.” Section 103, after that, lists possible reasons that could provide grounds for personal grievance. As we have heard from previous speakers, they include unjustifiable dismissal; unjustifiable action of the employer; any form of discrimination, which could be racial or sexual; constraints due to membership or non-membership of a union or employees’ organisation; and, non-compliance with the Act or various parts of the Act by the employer. What this bill does is it provides another option by adding another section, which is new section 102A. This is to allow employees who earn more than $150,000 as their annual gross salary to contract out of Part 9.

The logic behind this is that people—those who earn more than $150,000—cannot be forced into signing something. This will not be taken lightly. As we have heard from the member in charge of this bill, Scott Simpson, this kind of an agreement will be entered into in the presence of a lawyer. It will be witnessed by a lawyer, so this is not going to be taken lightly. This is about providing another option to employers and employees.

The other important thing is that this will be for individual employment agreements. It will be only for individual employment agreements that employees will be able to contract out of Part 9 of the Employment Relations Act 2000. It is not for collective employment agreements. I support this bill and commend it to the House. Thank you.

It is a great pleasure to stand on behalf of New Zealand First to strongly, and I underline that—strongly—oppose this bill moving forward through the House. “Hello, Dotcom.”—that was the first thing that jumped into my mind when I read this bill. “Is this member serious?”—was what came to mind. This is a shameful indictment on the fact that this member over here believes that this is in some way going to benefit New Zealanders. This is not going to benefit New Zealanders. This is going to benefit one group of people, and that is the employers.

It is an absolute schmozzle. I do not know where this crap got dreamed up from, but I think it has come out of the multinational conglomerates’ handbook, because they are the only people who are going to make any sense of it and who will receive any benefit from it. I see this as being fascism, at its absolute best, and I think it is a disgrace. Any party that supports it moving forward in this House should be ashamed of itself, because that is exactly what it is—it is dictatorial.

Who is this bill going to benefit? I just said it before; it is not going to be of benefit to the workers. It is not going to be of benefit for the executives and the corporates. Government employees are going to have some serious problems. Council staff and executive leadership teams in the territorial authorities are all going to suffer at the hands of big-money, big-city business, which is going to dictate the terms on contracts when it is sitting down for them. This member, Scott Simpson, talks about the real world, but it does not look like he has got any experience in the real world.

How it normally works is the employer has the weight of control. The balance is in the employment contract. An employer who is sitting down to discuss the terms of a contract with an employee will simply say to them: “If you are successful with your application, how would you feel about removing your ability to put a personal grievance towards the company?”. Of course if that person wants the job, they are going to agree to the terms, and it is farcical to think that that person can then go and get independent advice, which they pay for themselves and which they steer their lawyer into giving them the outcome that they want, to make sure that they get that job—to give them the advice that they want to get so they can get that job.

If you are talking about fairness and equity in an employment arrangement, what differential is there with a person that is on a lower-earning income and somebody that is on a higher-earning income? You have jumped to a conclusion. You have made a huge assumption that just because you are a higher earner, you have got more power, or more gumption, in your mind to fight your corner.

Well, you need to spend some time—I have to say, Mr Simpson—in our select committee when we talked about the zero-hour contracts. We had professional, highly qualified, highly skilled people coming in and discussing their problems. They were forced into signing contracts that they could not otherwise not sign, or fail to get their jobs, or lose the opportunity to get their jobs. In fact, I will give you an example: we had a very intelligent woman who was a lawyer, who was given a contract to sign, a zero-hour work contract. It was a “take it or leave it” opportunity that she signed because she was a solo mother, qualified as a lawyer, a hard-working, intellectual person who got herself into a situation because the employer demanded it of her.

This bill is fascist. We should not be allowing it to move through this House. It is exactly the sort of thing that erodes away the very fibre of our employment relations that we have built up over years. I think we have some serious concerns. This is an indictment on this Government.

The other part that I would like to bring to the attention of the House is the fact that if an employee gets to a situation where they sign themselves into that contract, to make sure that they get that job available to them, the first thing that the employer has the power, again, to do is enforce the 90-day work trial. Now all of a sudden if they want to sign into that contract and have the ability to take a personal grievance against the person for a range of reasons—sexual harassment, sexual preference, whether they are married, whether they have got children, and all the sorts of things that bad employers would use against an employee—they would have that ability. And if they do not sign that contract, despite them giving them the job, after 90 days they can just say: “Sorry, we don’t need you anymore.” There are no excuses, just “See you later, but next time, make sure that you take away that provision.”

This is disgraceful, and I absolutely would stand by the fact that any party that supports this just shows how fascist and out of touch they clearly are, like this Government and like this bill has shown here today. Thank you.

E Te Mana Whakawā Tuarua, tēnā koe. Tēnā koutou katoa e ngā mema o Te Whare. I take great pleasure in supporting the Employment Relations (Allowing Higher Earners to Contract Out of Personal Grievance Provisions) Amendment Bill in this first reading debate, as has been introduced by my friend and colleague the honourable member for Coromandel, Scott Simpson. It is a very sensible bill and it is quite extraordinary in my view that it has elicited such extraordinary caterwaulings from members of the Opposition.

We have had argumentum ad Hitlerum from the New Zealand First party, which, perhaps, best personifies some of those arguments, I would have thought. We have had an extraordinary backflip, such an extraordinary backflip, from Mr Iain Lees-Galloway that I think he will have to take some physiotherapy, given that he has completely contorted his position around Mr Little’s early support for these sensible and actually relatively small amendments that have been introduced in this bill. And, again, we have had a contribution from the Green Party, which is extraordinary in that the member, Denise Roche, who is obviously against this bill, is clearly quite unfamiliar with—[Interruption]

The ASSISTANT SPEAKER (Lindsay Tisch): Can we just calm things down. It is very difficult to hear. Allow the member to have his say.

—against some of the provisions in this bill but has, clearly, very little knowledge of this area.

This bill brings an ability for employees to contract out voluntarily. I would personally be opposed to anything that cemented in a systematic violation of human rights. If an employee had been discriminated against on the basis of their gender or race or sexuality, I would personally have some very grave concerns if remedies were not left in place for that person. So I was delighted to hear from the member Scott Simpson that such remedies are going to be sought to be introduced during the select committee process.

Also I would note the advice on the New Zealand Bill of Rights Act from the Attorney-General’s office where it was made clear that people are opting out. They are contracting out of the provisions that exist under section 9 of the Employment Relations Act 2000. So I think this is a very sensible set of measures. We are talking about some of the best paid and, indeed, the most privileged employees in New Zealand. I would like to quote a couple of very prominent luminaries who have looked at these matters before.

Back in 2010 personal grievances were being discussed by the Government. The then Prime Minister, the Rt Hon John Key, made the very sensible observation that he shared the concern from many quarters about the fairness and consistency of personal grievance claims and also the then Minister of Labour—a very fine Minister of Labour, the Hon Kate Wilkinson—said that there were some high-paid employees who knew their way around the procedures so well that whatever the merits of the case an employee will pay out.

So I think we are talking about people where there is less of a power-imbalance situation, rather than lower-paid employees. We are talking about employees who can take on the very best legal advice, and, in fact, this bill would obligate them to seek legal advice before agreeing to opt out of the personal grievance provisions of an employment case.

So I think that, for all of these reasons, this is a very sensible bill and it really is extraordinary to have the debate reduced to the level that Clayton Mitchell took it to. Argumentum ad Hitlerum in this Parliament should be reserved for Acts that do actually impede upon the basic rights of New Zealanders and throwing insults around like that in this House, actually, not only debases that member and his party but should be reserved for the very serious issues where human rights are being violated and not a bill like this, which brings in choices and options for some of the highest-paid, most privileged New Zealanders, who have access to appropriate legal counsel before they make those decisions. So for these reasons I support this bill. It is a very sensible measure and I commend it to the House.

I rise to add my voice to the growing chorus of opposition to this poorly drafted and ridiculous bill, which purports to actually improve employment relations, but we know, because of whom National chose to debate this bill, that they are not serious about it at all. Of all the MPs—of all the MPs—they could have chosen to get up and speak about employment relations, Paul Foster-Bell, with his well-documented high staff turnover, must have been one of the poorest choices that they could have made. Oh, there could have been Todd Barclay, I guess, but he comes second—maybe—to Paul Foster-Bell. But I think that underlines the way in which this Government has no regard for workers’ rights, does not understand what is important about having fair and decent and honest employment policies, and their involvement in this debate is set to underline that.

I want to ask the question: what is it that the National Government has against workers and their rights at work, and why it is that they are picking out this particular group to alienate? This is normally, after all, the group of workers whom the National Party would want to cosy up to. Those earning over $150,000 are the ones they would normally want to protect, so who are they after here? Well, I am on the select committee that I expect will probably hear this bill if it gets through its first reading. On that select committee, quite recently, we have been hearing about the plight of whistleblowers in the Public Service, and I think that they are going to be under serious threat by a bill of this nature.

In the Ministry of Transport, where a very large and serious fraud was committed against the New Zealand taxpayer, it was the public servants who stood up for the rights of the taxpayer. It was the public servants, some of whom would have been getting paid more than $150,000, who did the right thing, who went and reported the breaches that were being made by one of their senior colleagues, a general manager, second only to the CEO. She was defrauding the New Zealand public, and many of her colleagues reported her. They reported her non-compliance, and some of those people would have been earning over $150,000.

Those whistleblowers—those people—are the people whom we need to protect. They are the public servants who are there to protect the public’s interest. Because I can see that, at the outset, it might seem OK if you have been offered a senior role at, say, a ministry like the Ministry of Transport to actually sign away your rights to a personal grievance. But, then, what if you are the whistleblower who acts in the public’s interest and then gets dealt to as a result of that? That is exactly what may have occurred in the Ministry of Transport; if only the Minister of Transport would have an inquiry and find out whether exactly it did happen or not.

But that is a very real example of the people who will be disenfranchised by this legislation. They are the very people whom we want to have security in their jobs and whom we want to be brave and whistle-blow when there are frauds of that nature being committed in places like the Ministry of Transport. We do not want them to have given away their basic rights to be protected at work if they are having to be put in a position, as these staff members were, of having to go and report against a senior colleague.

We want, and the New Zealand taxpayer needs, people like that to have the full force of the law and the Government backing them to go and make those valid and just complaints. I think that this is one of the targets of this particular law. It is that sort of culture that has developed more and more under this Government, of bullying at work. Bullying in the workplace is not just meted out to those on the lowest incomes; it is quite frequently meted out to people on higher incomes as well, and it must stop.

Finally, I want to say how disturbed I am that the National Government would want to bargain away people’s rights to prevent sexual harassment in the workplace, and if it thinks that sexual harassment happens only to low-paid people then it is completely out of touch with what is happening in the modern workplace.

This debate is interrupted, and in accordance with the determination of the Business Committee, I call on the Rt Hon John Key to make his valedictory statement.

Debate interrupted.