Employment Relations Amendment Bill

Thank you very much, Madam Chair. Part 1 of the Employment Relations Amendment Bill deals with the collective bargaining framework and union rights in the workplace. Before I start my comments on Part 1, I refer members to the object of the Employment Relations Act, which is “to build productive employment relationships through the promotion of good faith in all aspects of the employment environment and of the employment relationship”—in a number of ways but including—“(i) 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; and (ii) by acknowledging and addressing the inherent inequality of power in employment relationships; and (iii) by promoting collective bargaining; and (iv) by protecting the integrity of individual choice;”.

Part 1 of this amendment bill certainly helps to promote a number of those aspects of the object of the original legislation, and it does so by strengthening the collective bargaining framework and strengthening the rights of working people to participate in effective union representation. Part 1 includes new requirements around information about the role and functions of unions. That is important so that new people entering a workplace, or, indeed, entering the workforce for the first time, are able to make a genuine choice about whether or not they want to join a union. That should be a choice—absolutely. New Zealand has long upheld the principle of freedom of association. It should be a choice that people have, but it should be a genuine and informed choice, and the provisions in Part 1 ensure that people have access to information that is relevant, that is accurate, and I thank the members of the Education and Workforce Committee for ensuring that those provisions are as tidy and as employer-friendly as they can be.

Part 1 also reinstates the so-called 30-day rule. This is the rule that requires new employees to go on essentially the same terms and conditions as any collective agreement that is in place. That gives those new employees an opportunity to experience the terms and conditions of the collective agreement. It’s also the period in which they can provide information back to the union about their decision—about whether they want to join the union or not. Again, this supports the idea of an informed and genuine choice. Of course, at the end of the 30-day rule, if a worker wishes to go on to an individual employment agreement of different terms and conditions from those outlined in the collective employment agreement, that is absolutely their choice—a choice that this Government supports and one that is upheld in Part 1 of this bill.

Part 1 also deals with the duty of good faith to conclude bargaining. I want to be clear to the House about how this operates. The duty to conclude bargaining is not a compulsion to conclude bargaining. It is a duty to stay at the table, to deal with all the issues that are a matter of bargaining, and parties at the table ought to do everything they can to conclude a collective agreement, but if there are reasonable grounds on which an employer—or, for that matter, the union—wants to walk away from bargaining, then that is still supported by the duty of good faith. It’s certainly important that New Zealand upholds its International Labour Organization obligations to promote and support good-faith bargaining, to promote and support collective bargaining, and to do all it can to encourage and support parties to remain at the table and to conclude a collective agreement. Again, there is absolutely no compulsion element to the changes that Part 1 makes.

Multi-employer collective agreement opt-outs are also addressed in Part 1, and I want to address the changes that are included in Supplementary Order Paper 153 in my name. So what that Supplementary Order Paper essentially does is it brings what has long been regarded in case law into the legislation, and that is that the duty to conclude bargaining does not apply to multi-employer collective agreements, and that employers who wish to step away from multi-employer collective bargaining—again, on reasonable grounds, but that can include opposition to concluding a multi-employee collective agreement—can do so.

What this bill does is it requires people to come to the table. We think it is important, in a collaborative industrial relations framework, to bring people to the table and get them to stay at the table for as long as possible. However, it has always been clear in case law that the duty to conclude bargaining does not apply to multi-employer collective agreements. That was a cause for some uncertainty for a number of employers who submitted on the bill. I am very pleased that through the Supplementary Order Paper we were able to create that certainty by making it clear in the law what has been in place in case law for some time.

The bill also makes it a requirement that rates of pay be included in collective bargaining and collective agreements. It is one of the most fundamental purposes of collective bargaining for workers to come together as a collective and bargain their rates of pay. It therefore ought to be absolutely fundamental and included in our legislation that rates of pay ought to be included in collective bargaining.

One of the other matters addressed in Part 1 is the removal of pay deductions for partial strikes. It is the view of the Government that people taking low-level industrial action, such as working to rule or wearing a campaign T-shirt to work, should not be a cause for them to have their pay deducted. In fact, this has potentially caused people to step immediately to full industrial action, full strike action, rather than taking lower-level action, when there was a penalty involved in taking that lower-level action. Again, it is the view of the Government that this will encourage people to take lower-level action rather than going immediately to full strike action.

This part also restores the ability of unions to initiate collective bargaining ahead of employers. That restores some order to the initiation of collective bargaining. There have been instances of, sort of, duelling initiations—people seeing if they can get their initiation by one second past midnight rather than 20 seconds past midnight to be the first to initiate bargaining. This restores some order to the process and, again, acknowledges the inherent imbalance in the employer-employee relationship by putting the employee first in that process.

This part also deals with union delegates and their representatives, and union access to the workplace. Again, I’m very pleased to be making some amendments to that through the Supplementary Order Paper in my name, whereby where a collective agreement is already in place, union officials will have the right to access the workplace under the current conditions, which is that they must access the workplace in a reasonable way at a reasonable time, not impacting on the normal business of the workplace, and they must make themselves known to the employer—all the usual reasonable expectations of a union official accessing a workplace.

Where a collective agreement is already in place or one is being bargained, then the officials will have that right to access. Where there is not one in place—and that generally means that there is not a lot of union presence in the workplace as it stands—then union officials will have to seek the consent of the employer to be able to access that workplace. Again, this addresses some concerns that were raised by employers, and I think it has been roundly seen by both Business New Zealand and the Council of Trade Unions as an elegant solution to the concerns that were raised.

I’m very proud of Part 1. It enhances people’s rights to bargain collectively, it supports union activity to promote the well-being of workers in the workplace, and it helps to address that inherent imbalance in the employer-employee relationship, which is recognised in section 3 of the Employment Relations Act. I acknowledge that there are a number of Supplementary Order Papers on the Table, and I appreciate that members from the Opposition will want to debate those and consider those. I look forward to their contributions, and I look forward to responding to them.

Thank you, Madam Chair. It’s an interesting debate that we’re going to have on Part 1 of this Employment Relations Amendment Bill. It’s been quite a long time coming to the committee of the whole House stage, because, clearly, there have been a lot of negotiations going on and occurring on the side of the Government coalition parties, and those discussions and debates and arguments have ultimately manifested themselves in the Minister’s Supplementary Order Paper that the National Party opposes.

Colleagues of mine on this side of the Chamber will, over the duration and course of this debate, detail, clause by clause, segment by segment, paragraph by paragraph, the particular issues that we have with Part 1 and, indeed, the whole bill. But for the Minister in the chair, this is actually something of a devastating humiliation, because he came to the Parliament earlier this year, in January, and introduced this bill in a way that was designed entirely to enhance the opportunity for trade unions to influence their power and muscle in our workplaces around the countryside and to grow union membership.

The provisions that provide most of those opportunities for trade unions are included in Part 1 of the bill. So this backdown that has occurred is something of an overpromising by the Minister in terms of his commitments made to his trade union friends and allies but not able to be delivered upon because of the influence of organisations such as the Employers and Manufacturers Association, Business New Zealand, the various chambers of commerce from around the countryside, and indeed the efforts of my hard-working colleagues in the National Party, who have been travelling around the countryside, educating, enlightening, and informing business people particularly of the issues that this bill contains.

This bill has as its primary purpose—and it says in the very first sentence that the new laws make it clear that unions are the winners. It says, and I quote, these are “a suite of changes to promote and strengthen collective bargaining and union rights in the workplace.” Really, this is nothing short of an opportunity for the parliamentary Labour Party to repay its debt to the trade union movement—the first possible opportunity, and the fact that it’s taken us almost a year to get to that point is telling in itself.

CHAIRPERSON (Hon Anne Tolley): Order!

So in Part 1 we’ve got a number of provisions that will be dissected by my colleagues as we go through this debate. There are issues that pertain to provisions where union delegates will be paid to do union work on the employer’s dime, in an unspecified, unquantified—

💬 Andrew Bayly: What?

Union delegates will be given the opportunity to do union work—undefined, unquantified—on the employer’s dime and time. There are new rules to be pushed through the Parliament in terms of providing access to workplaces for trade union officials and delegates. Many of them will be able to access workplaces—even if the Minister’s Supplementary Order Paper is passed—without notice, without permission, and without consent, and that provides all kinds of issues for employers, for employees, and for the safety and well-being of people at work all around the countryside.

Then there are questions relating to union information being supplied to workers, to employees, that must be provided to those people by the employer, and it looks like the onerous restrictions that will be placed on the employer will not be as simple as the union actually just mailing out information to prospective members. The unions want to have the power and authority to have employers doing recruitment for them in an unpaid way and in a way that ensures that union membership can be maximised and grown.

This is undoubtedly a piece of legislation that is designed to, effectively, increase trade unions’ market share in our workplaces. Eighty-three percent of New Zealanders are not currently members of trade unions. This is a bill that is designed entirely to turn that around. The real question is: why?

Just before I call the next speaker, can I just refer all members to Speakers’ rulings 49/1 to, probably, 49/7, which deal with imputing improper motives to Government actions. I would just bring that to people’s attention.

Thank you, Madam Chair. It’s with great pleasure that I take a call on this Employment Relations Amendment Bill. A previous speaker mentioned the word “humiliation”. What I think is utter humiliation is the fact that the National Party so clearly shows, in their speeches and, in fact, with all of the Supplementary Order Papers (SOPs) on the Table, that they have no idea about modern union movements and modern workplaces working together. It’s an absolute embarrassment—

💬 Dan Bidois: Tell us about it.

—and I’ll tell you about it, exactly. I remember that Dan Bidois made a comment in his speech, and it was repeated by the member for the Coromandel, about unions being the winners and there being nothing in this for working people. What a bizarre statement. It’s as if they have no idea that unions are the voices of the working people. They are all one; you can’t disconnect them.

Most of these changes in this bill are simply rolling back the undermining changes made by consecutive National Governments over the last 10 years, and what these changes have done is actually hurt New Zealand people. They’ve hurt their families. They’ve created the working poor. The National Government turned their backs on workers. They locked New Zealand and their workers and their families into a low-wage economy. Now, lifting wages is a very important part of growing productivity, and unions are a crucial part to this growth. In New Zealand, as well as internationally, the decline of unions and collective bargaining has been strongly linked to the growth in inequality, and that is what we have seen over the years.

Now, I’d like to have a look at some of these SOPs. They are, actually, really quite pathetic. There’s one here—I don’t know; it must have a number. I’ve never talked about one. It says, “Hon Scott Simpson, in Committee, to move” the issue about paid time for delegates—oh, it’s SOP 111. Now, that’s a very clear example of the utter ignorance about what the role of a delegate is, and what the role of a delegate is in a modern union working with businesses. Have a look, for example, at the delegates at Air New Zealand. They play, and are playing at the moment, an absolutely crucial role in coming to a good, concluded bargaining that ensures that both sides of the party win out of this bargaining round.

What delegates do every day is they make the work better for everyone. We hear it from union members—

💬 Hon Members: Ha, ha!

—and we hear it from union organisers. Whilst the Opposition can laugh, it is very clear that they absolutely do not have that conversation with unions. They don’t talk to businesses that encourage union membership, they don’t talk to delegates, and they don’t talk to organisers, because what they would hear is that the delegates absolutely play a crucial role in ensuring that issues are addressed before they become bigger than Texas. And how would some of these employers deal with all of the issues in the workplace if they had to individually deal with not only the issues but also the negotiations?

So the SOP states, “rather than the employer being responsible for compensation for activities that do not directly affect their business.” Again, that shows very clearly that the delegates dealing with issues completely affect that business. The other one is about union access. Now, we’ve heard a lot of scaremongering over the last few months about this “unfettered access”—never mind that it has been explained very clearly and eloquently by organisers that you can compare the role of a union official to a contractor. They don’t just wander in and do their business; no, they are usually very respectful, because they’ve built up that relationship with the businesses, where they come in, they sign in, and if there is a health and safety induction, they have gone through it. They report, they sign in, they do anything that a contractor does as well, and that has a very important place in a workplace because working people should have the right to access the support and the advice from their representatives without it being restricted.

So it is very ancient—I’m trying to find a word that is appropriate. But it’s an absolutely—

💬 Hon Clare Curran: Out of date.

—out-of-date, undermining change that the National Government made—

💬 Hon Clare Curran: Backward-thinking.

—backward-thinking; there’s a few good words there—between the period of 2011 and 2015, because that’s all it is. These changes only go back such a short amount of time.

So, like I said, there are lots of examples that we have from union officials being unreasonably blocked from access because of bad employers. Let’s face it: there’s only a few of them, but, still, these bad employers would try to block people having access to fair representation. So this bill is changing that, and I see I’ve run out of time. I’ll take another call. Thank you.

Thank you, Madam Chair. Well, here we are—here we are. We’re at the stage of the committee stage when we get to look at the amazing or substantial changes that New Zealand First has managed to winkle out of this Labour Government to this Employment Relations Amendment Bill. You will recall Mr Shane Jones, the Minister. He wandered around the countryside and the regions and talked about trying to grow the economy of the regions of New Zealand, and then as he went around with his wad of cash—handing it out, hoping to get lots of applause—he was confronted. He was confronted by many of the employers that he was talking to, with rage and anger in relation to this legislation, because it might be OK for the Government to hand out money to businesses around the regions, but if they’re making it more difficult for them to engage in their normal work through changes to the industrial relations setting, then they were making that view very powerfully. So we had Mr Jones standing up, saying, “Oh, don’t worry, we are going to fix all this. We’re going to dial back, because, actually, I’m the real boss in this Government, and I’m going to sort it all out.”

And what have we got? What is the outcome of it all? Well, it’s a very, very thin Supplementary Order Paper (SOP) 153 here from the Hon Iain Lees-Galloway. This piece of paper, I think, would be easily interpreted as “Up yours, Shane Jones”. That is how I would describe this paper, because it’s basically, “We’re going to carry on doing exactly what we were going to do in the first place. We’re going to carry on, and we’re going to make a couple of little tweaks here and there.” There is one sort of semi-important tweak, which I’ll come to at some point, but, ultimately, there is nothing substantial in the changes.

If you look through what this legislation’s going to be doing—I mean, I could take, for example, clauses 21 to 23 in Part 1 about partial strikes on full pay. So, you know, you’re out there in Westport trying to make a living in a tough business, trying to keep the doors of the business open, and we find out that, now, employers will be forced to pay the full salary or wages of someone even if they’ve broken their employment agreement and are on partial strike. So you’re on partial strike, you’ve decided that you’re only going to turn up for half the day or you’re going to go slow or you’re going to go off and have meetings all through the day—don’t worry, the employer will pay for it all, as a result of this. The purpose of this is to give unions an advantage when dealing with businesses by allowing them to disrupt the business without any cost to unions.

So this is just one example of the many things that are going on and carrying on through this legislation, notwithstanding all the promises. You know, it might be a bit unkind, but people would say this is why Mr Jones is being regarded as two-faced by some people in the business community. The message has come through that “We’re going to help. Don’t worry, help is on the way. We’re going to amend the worst elements of this legislation.”, and then, finally, when we see the SOP, there’s virtually nothing to it.

When we look at the actual changes that are made, they’re pretty minimal, to be honest. There are a few things here and there in relation to reinstating the original bill provision that a union representative must request and obtain consent only if the workplace has a collective agreement or they’re bargaining for a collective agreement. So, yes, it tweaks the arrangements of people just turning up at businesses and without notice a little bit, and, yes, there is this idea that it’s not compulsory to conclude a MECA—a multi-employer collective agreement—provided that the opposition is based on reasonable grounds. But, of course, there are so many businesses up and down the country who are not clear what “reasonable grounds” are.

It doesn’t define what they are, so it’s still compulsory to come to the table even though—you know, we’re not talking about just an employer dealing with their employees that they know and that they respect. It could be an agreement in relation to cleaning, for example, that might be relevant to Auckland but might not be at all relevant to the realities of the West Coast or Ōāmaru or around Taranaki and all these different parts of the country where there’s so many different economic situations in place. This Government is ramming one straitjacket on to all of them and expecting the employers to be able to cope with that. So I just think this SOP is a great embarrassment to both this Government and New Zealand First.

It is a pleasure today to be speaking on the Employment Relations Amendment Bill. Now, I first came across this bill while I was at Foodstuffs last year, and not many of the people at Foodstuffs were happy about this bill. They weren’t clear about what problem they are actually trying to fix. Then I got elected about six—

💬 Hon Scott Simpson: Low union membership—low union membership.

That’s right. That’s right—low union membership. That’s what’s clear to us on this side of the House.

Then I got elected about six months ago, at the time that this bill was put into the select committee stage. I haven’t had a chance to sit on that committee, the Education and Workforce Committee, but I’ve gone around and interviewed a lot of businesses in that time, and it is again very clear that this bill doesn’t seek to solve any problem that is real in the market place, beyond giving unions greater power to, essentially, recruit members. This is, in a sense, a payback. I know that there’s a fine line of what we can say here in the House, but that is what the people out there in the market place are feeling—that this is, in a sense, a payback for what the unions have done for certain political parties.

But let’s come to the bill, because I think it’s a really important bill to understand. What I want to spend a bit of time on is this thing called a MECA. I’m not talking about Mecca as in the place in the Middle East; I’m talking about the multi-employer collective agreement. I’m going to be honest: a year ago, I had no idea what a MECA was, and nor do most employers. So we’re going through the clauses, and we’re going through the clause which deals with the MECA and the duty to conclude. Now, I know that we’ve got a Supplementary Order Paper (SOP) on the Table that narrows the duty to conclude only for those that are under a collective agreement or collectively bargaining a collective agreement, but I do want to just spend a bit of time—and I’d love to hear from the Minister in the chair, Iain Lees-Galloway, about how he sees this working in practice, because all of the businesses that I’ve spoken to can’t see how MECAs work on a practical basis.

Let me take any industry, whether it be retail, whether it be wholesale, whether it be the business that I used to work in, which is Foodstuffs—there are, as you know, Foodstuffs stores throughout the country, but each store has their own unique challenges, and the business world doesn’t feel, simply, that MECAs are a sufficient mechanism for what are going to be very unique and localised challenges across New Zealand. For example, in some Foodstuffs stores in, say, Hamilton, there may be some issues around the cafe, and what the employers want at that store is a better cafe, but then there might be a supermarket up in Auckland where there’s a brand new cafe in store. So why should a MECA agreement apply, essentially, to them when we’re talking about very unique circumstances?

I do want to talk a little bit more about Foodstuffs, because they made a submission on this bill regarding MECAs. They’ve said very clearly that it’s not practical or appropriate where there are very localised issues going on within their stores throughout the country. So they recommend a repeal of that, which is where I come to my SOP in my name, SOP 114, which, essentially, deletes clauses 13 and 14. This would, essentially, allow the employers to opt out and would not mean that you need to conclude a MECA. I think that this would address some of the issues that I’ve spoken about with large employers, but also medium as well, that don’t feel that an industry-wide approach is flexible. It certainly doesn’t speak to the employment arrangements that we have already. I’ve mentioned already in this House that we already have one of the most flexible, efficient labour markets in the developed world, and this clearly does not—[Time expired]

Thank you, Madam Chair. It’s a great honour, actually, to stand and speak on the Employment Relations Amendment Bill as a member of this Government and a proud union member. [Interruption] Listen to the boos on the other side, particularly from the last speaker, Dan Bidois, who must have led a very sheltered life to not really understand the value and the purpose of belonging to a union and to not understand what a multi-employer collective agreement (MECA) is. It might be of some interest to him to know that the nurses are covered by a MECA. In effect, the teachers are covered by a MECA. So perhaps when he gets up, if he gets up to speak again, he might have done a little bit more homework before he actually gets up to speak.

I want to address my comments to Part 1, particularly to Supplementary Order Paper 153, put forward by the Hon Iain Lees-Galloway, with respect to new clause 3B and clause 5, which is amending section 20, around union access. But I would like to make a comment that this is ultimately a bill that is about undoing wrongs. It’s about undoing the wrongs of the previous Government to those who earn a wage in workplaces where employers have disproportionate power over their working conditions. It’s a fairness bill. That’s basically what this is. It’s a fairness bill. There are lots of other things that can be implemented through legislation and will be, as this term goes on, but this is a bill which is about righting some wrongs, and it demonstrates the importance of the working relationship, the good close working relationship of this coalition Government with our coalition partner—

💬 Todd Muller: What’s the wrongs?

—and our confidence and supply partner. OK, so it restores the rights of working people to meal and rest breaks—a fairly fundamentally important wrong, which is being righted. It restricts the 90-day trial periods to—

CHAIRPERSON (Hon Anne Tolley): Well, those are in Part 2, so I’d like the member to focus on Part 1.

So in Part 1 with regard to the ability for unions to access workplaces, I want to give an example, because I’ve been waiting for the examples to come from the other side as to what it is that is so wrong about union representatives having access to the people that they represent in their workplaces. I want to give an example in my own city of a rest home called the Woodhaugh Rest Home and Hospital in Dunedin, where there were accusations and claims being made of poor treatment of the staff—it got down to things like rationing the teabags—where the workers’ hours were being cut. They called in their union representative to act on their behalf. When the union organiser turned up to represent the union members, who were and are covered by collective agreement, she was told to wait. She was told to wait by the duty manager and half an hour later she was given an instruction that she had to leave. As she was walking out, a car pulled up and she was issued with a trespass notice and basically told that she wasn’t allowed back into that workplace for around 18 months.

Now, those people in that workplace who are on low wages were having their hours cut, and it had got so bad that even the teabags were being rationed—not just for them but for the patients, the people living in the rest home—and they weren’t allowed to have union representation. Now, that is a classic example of where the disproportionate relationship between employees and employers is being abused and where this bill will right that wrong.

It’s a pleasure to take a call on Part 1 of this bill, because of all of the things that this Government is doing to slow the economy and to reduce opportunities for New Zealanders to get ahead, it’s these changes in Part 1 of this bill that should most concern New Zealanders. Before I get into the detail of whether it be the union access rules or whether it be the changes to the multi-employer collective agreements, I do want to dispute a key point that was made by Clare Curran and say that in the term of the last decade we saw wages rise by over $12,000 on average. What we also saw in that report from the Ministry of Social Development is that every one of the deciles over the last 10 years has improved in their income-earning capacity, and what I would challenge members opposite—

💬 Hon Clare Curran: What is he disputing?

Well, I say to the member opposite that if we want to increase the incomes of New Zealanders, and not have it all eroded away by inflation—real increases in income as occurred over the last decade—the Government has simply has not made the case for change. That is, that actually the increases in incomes that have occurred in the New Zealand economy over the last decade have been some of the strongest in the OECD, that what we’re doing as a country is successful, and what this bill and this part proposes is slamming the brakes on the key elements of what makes New Zealand successful and competitive.

I particularly want to object to, and test the Government on, the provisions of clause 9, where the Government is quite blatantly screwing the scrum in favour of multi-employer collective agreements. What it is trying to do in clause 9 is actually force employers into multi-agreements. Let’s not kid ourselves that this is about protecting the downtrodden. This is about gaining advantage for Labour’s union mates.

Can I just give an example. For the first time in more than 30 years, we’ve had, this year, strikes on the port of Nelson—right at the time when our apple crop was going at the port, when it was at its most vulnerable period. We had people that are earning over $100,000 a year—not the poor and the downtrodden; those that are able to exercise maximum disruption—screwing the scrum. And what will this clause 9 do? This clause 9 will drive our port companies to move back to multi-employer collective agreements across that key transport sector. Why is that bad for New Zealand? Because New Zealand lives and dies by the success of its exporting industries.

The truth is that we have some of the most competitive and efficient ports in New Zealand. That’s enabled our exports to grow. That’s been at the core of New Zealand’s economic success, and what the Minister here is doing in clause 9 may play well to a few of his trade union mates, but it actually makes New Zealand collectively poorer and it does so by handing back the old powers that seed disruption. It’s why this year we have seen a level of industrial disruption that I haven’t seen in 25 to 30 years. That is taking us backwards.

So my simple test for members opposite is: why do we want to screw the scrum in favour of multi-employer collective agreements? Why is it that we don’t want the forces of competition to work effectively for our economy? Actually, those that cause strike action maximise the wages for those that may be at the port where they can disrupt, but they overlook the wages and the competitiveness of everybody downstream from the port that’s working in the orchards, working in the other components of the sector.

I just have not heard a cohesive argument, an intelligent argument, from Government members as to why they want to drive New Zealand towards more multi-employer collective agreements when, actually, in all parts of the economy we need to maximise competition. We want companies being innovative, including being innovative in their employment arrangements, to ensure that New Zealand remains competitive and grows its competitive edge, which is being undermined—undermined—by these provisions in Part 1 as they relate to multi-employer collective agreements.

Thank you, Madam Chair. I thank members for the contributions on Part 1 so far. Members have largely addressed two issues: that of union access and of multi-employer collective agreements, and I’d like to speak to some of the points raised by members on each of those issues.

I’ll address the first: union access. I’d point members to section 21(3) of the Employment Relations Act, which states that “A representative of a union exercising the right to enter a workplace must, at the time of the initial entry and, if requested by the employer or a representative of the employer or by a person in control of the workplace, at any time after entering the workplace,—(a) give the purpose of the entry; and (b) produce—(i) evidence of his or her identity; and (ii) evidence of his or her authority to represent the union concerned.”

And also, subsection (2) of the same section says that “A representative of a union exercising the right to enter a workplace—(a) may do so only at reasonable times during any period when any employee is employed to work in the workplace; and (b) must do so in a reasonable way, having regard to normal business operations in the workplace; and (c) must comply with any existing reasonable procedures and requirements applying in respect of the workplace that relate to—(i) safety or health; or (ii) security.” Now, those subsections are unchanged by this bill, and, I hope, give members some satisfaction that there is no so-called “unfettered union access to the workplace”.

Of course union officials must present themselves to the employer, and of course they must give regard to proper health and safety practices. If an induction is required to a workplace then, of course, the union organiser must ensure that they are properly inducted and they understand the health and safety procedures of that workplace. But, of course, also it is important that union members are able to give effect to their right to freedom of association and their right to get support from a union official if they are in need of that support.

And if union members call their union and ask their official to come on to the workplace to deal with an employment matter or a health and safety matter, then they should be able to get timely access to that union official. I think the combination of the provisions that are currently laid out in the Employment Relations Act and that are included in this bill and the Supplementary Order Paper to this bill, in my name, strike that right balance between giving union members access to their union officials and ensuring that employers have the right and proper ability to control activity that goes on within their workplace.

I want to turn now to the question of multi-employer collective agreements (MECAs). A number of members have referenced this matter. Paul Goldsmith raised the question of multi-employer collective agreements sort of being a one-size-fits-all that are not capable of taking into account regional variations in labour markets. That is not the case. It is perfectly acceptable for a multi-employer collective agreement to include variations of pay rates or other variations that are agreed between the employer—or employers, in the case of a multi-employer collective agreement—and the union representing workers who work for those employers.

I’m aware that negotiations, in the past, for the nurses’ district health board (DHB) multi-employer collective agreement did consider the possibility of regional variation such as an Auckland wage. Now, that was determined not to be something that the parties wanted to explore, but it is something that they were entitled to explore and there’s nothing in the provisions of the Act or this amendment bill that preclude that from happening.

Mr Bidois made, I thought, a very thoughtful contribution also on MECAs and referred to his own experience from the supermarket world. And he asked, “How do these multi-employer collective agreements work on a practical basis?” And I would reference the nurses’ collective agreement with the DHBs. The New Zealand Nurses Organisation has a number of multi-employer collective agreements across the different parts of the health system—20 employers employing people to do essentially the same job. Both the employers and the employees see it as a much more efficient way to deal with the terms and conditions of their work to do it through a multi-employer collective agreement that applies to employees doing the same work that is covered by that MECA across all of those 20 different employers. So that’s the practicalities of how a multi-employer collective agreement works.

Let me bring it back to the supermarket situation. Now, Countdown has a collective agreement. I’ll grant the committee that it’s not a multi-employer collective agreement—because of the structure of the business, they are one employer that employs people all around the country. But FIRST Union has a collective agreement that covers workers in all 187 Countdown shops across the whole country. It works well. Countdown is very pleased with it. They are very proud of their relationship with FIRST Union, and it allows them to develop an enduring and ongoing relationship between the employer and their workforce to deal with matters that are not just the matters that are considered as part of collective bargaining, but to address the broader employment relationship.

And I know—yeah, there’s been tension. I have stood on the line during a lockout that occurred many, many years ago when Progressive Enterprises—the owners of Countdown—locked out their workers as part of an employment dispute. But the enduring relationship goes on, and both sides are very proud of it. So it can work tremendously well and it can work across the country. I do not accept that either multi-employer collective agreements or single-employer collective agreements are a one-size-fits-all approach and that they are not applicable across different parts of New Zealand, because the evidence tells us that they can and do work well.

I want to just address some of the matters raised by Nick Smith as well. He said that port companies will be dragged back to having MECAs. Port companies have never had a multi-employer collective agreement. There has never been a multi-employer collective agreement in the port sector. And I’ve heard a lot from the port companies about their concerns. I say to them: “This bill is restoring what was in place when Labour was last in Government.” There is no reason to imagine that the situation would be any different. In fact, through the Supplementary Order Paper, we are ensuring that that point of case law—that the duty to conclude collective bargaining does not apply to multi-employer collective agreements—is now enshrined in the legislation. That makes it much clearer. I think the port companies have absolutely nothing to fear from this. And, in fact, I encourage them to build a much stronger relationship with their unionised members.

Nick Smith also used the term “screw the scrum”. Why are we “screwing the scrum”? Well, I attempted to address that in my opening remarks—which included that the object of the Employment Relations Act is the statement that there is an inherent imbalance between the employer and the employee. The legislation is designed to address that imbalance, and that’s what multi-employer collective agreements are about. They are about giving more strength to working people; giving them the option of bargaining collectively, not just within their own employer but across their industry, for better terms and conditions that apply to unionised members across their industry, because we recognise, in this legislation—and the National Party never got rid of this section of the legislation, so when they were in Government they agreed that there is an inherent imbalance between the employer and the employee. We are giving effect to that object of the Act to overcome inherent imbalance, and multi-employer collective agreements are part of that.

Thank you, Madam Assistant Chair, for this opportunity. It was really interesting to hear this from Minister Lees-Galloway in his first contribution—that he accepts that this legislation is clearly to support union activity. And we can clearly see that it’s all about union activity. Supplementary Order Paper (SOP) 153 in the name of the Minister—I’d like to comment on a couple of things in that SOP before I talk about the SOP in my name.

SOP No 153 amends clause 2(a). My understanding was that when the bill was delayed in coming up for the second reading, maybe New Zealand First would be able to advocate for businesses, but, no, looking at this SOP, New Zealand First clearly did not advocate for businesses. They clearly advocated strengthening this legislation for unions, because it is about delaying the introduction of the bill. And this delay to introduce the bill is not to help business but it is to help unions prepare their material that they will be providing through employers to new employees. This is to help unions prepare for new people signing up as members. And, clearly, they are really desperate, because we have seen the figures, because it’s only 17 percent of employees that are members of some union. So definitely they want to increase that number—80 percent of employees are not union members. This is to actually help unions, not to help businesses.

And then we look at the clause 5 changes proposed in this SOP No 153. So for health and safety reasons, as well, employees that are not union members will be able to ask the union to come and provide help at their workplace. So this is again to strengthen unions at all kinds of workplaces. So what is the role of MBIE under this Government? The Ministry of Business, Innovation and Employment—why can’t this Government think of providing more support to MBIE to respond to such situations? No. They don’t want to support MBIE to support employees in these kinds of situations. They want to actually provide more support to unions to be able to provide that support. And that is, again, clearly to strengthen the role of unions in various workplaces.

We know that union activity is not a new activity, but, nowadays, the kind of union activity that we are seeing is quite aligned with political activities. Clearly, here, we know that our unions are aligned with some political parties, and as a result of that, I’m not quite sure if this legislation is actually really addressing workplace situations. This is actually addressing the situation of unions, because unions, at the moment, are not going that strong.

That brings me to my Supplementary Order Paper 145, which is to delete clause 24, clause 25, clause 26, and clause 27. This is because the clauses as they stand provide a new ground for discrimination against a person involved in union activity by specifically inserting a new provision as to the individual’s union membership status.

Why would we clearly want to state that an employee is a union member? There can be two reasons for this. One reason is to avoid discrimination, as the Minister would like to interpret. “Yep, I am a union member. Don’t touch me, even if you are restructuring or doing anything else. Even if it’s some kind of disciplinary action that the employer wants to take, don’t touch me.”—that will be some kind of discrimination. But in this, there are two meanings. One is to clearly state that that employee is a union member to create that fear in an employer’s mind that if something happens to that member, that will be seen as a kind of discrimination. I would really like the Minister to explain how, actually, these clauses remove discrimination. In my view, actually, they’re adding to the discrimination that will happen and will create a big divide between employees that are members of some kind of union and employees that are not members of a union.

So this is clearly about political gain, and in these clauses—clause 24, clause 25, clause 26, and clause 27—how many times do we see the words “employee”, “employer”, or “business”? It’s all about unions, unions, and union activity. So, clearly, these clauses are supporting, of course, the whole motive of this bill—

💬 Hon Aupito William Sio: Such an anti-union party—shame on them.

—which is to strengthen unions. Shame on those Labour members sitting there and supporting unions and not supporting employers, employees, and businesses. It is the employer that takes the risk—[Time expired]

Thank you, Madam Chair, for the opportunity to take a call on the Employment Relations Amendment Bill. In this contribution, I want to draw particular attention to one of the more egregious aspects of this bill, that affects the privacy of every single New Zealander, and that provision is new section 62A, in clause 18.

What that provision, essentially, requires is that any employer who signs an employee up to an individual employment contract in the future under this legislation will be required to give the personal information of that employee to the union. I stand with the Privacy Commissioner, who views that this approach goes both beyond what is necessary and creates a step backwards both for New Zealand’s privacy laws and for our employment laws. National has a remedy for this in the form of Supplementary Order Paper (SOP) 147 in my name, which will ensure that an employer gains consent from their employee before transferring their personal information to a union.

So, as it stands in the draft that the Government has prepared, this is what would actually happen: I’m a new employee, I sign up to an individual employment contract, my employer is now required to come to me and say “Here’s a form that I need you to fill in, outlining whether you’re going to join the union or that you’re not going to join the union.”, and then the employer is required to give that form to the union, giving my name and giving the fact that I haven’t joined a union. Then, of course, the union gets that information about me, and is absolutely welcome to come and ask me questions about why I haven’t joined the union and, potentially, do that in front of my workmates, embarrass me, and put me under pressure.

But what’s even worse is that if I don’t fill in that form—let’s say I’m an employee in my first few days of employment, I’m busy at work, I have family commitments, and I don’t get round to filling in the form. Well, the default position that this law sets out is that in that circumstance, the employer automatically tells the union “She hasn’t filled in the form, this is her name—over to you.”, and, of course, not only is this unfair on the individual employee in terms of jeopardising their privacy but it is also very unfair on employers.

They are employers, who, I’d like to remind members opposite, are, in almost all cases—at least the vast majority of cases—good people and good New Zealanders, who are often entrepreneurial and hard-working, who have set up a small business to advance a service or good in their community, and who are hiring good people that they want to do well by, that they want to give an opportunity to, that they want to pay an income to, that they want to support well, and that they want to remain part of their business into the future. What this law requires of those good employers is that, suddenly, they have a sub-duty. Instead of their duty being to look after their staff, their duty is now to promote the union by giving information about their employees to the union.

What an invidious position that places employers in, because, suddenly, the employee may go to the employer and say “Hey, look. How did the unions end up knowing that I wasn’t in the union?”, and the employer says, “Well, I’m sorry. I passed that information on.” The employee says “Well, why did you pass that information on? That’s my private information. The fact that I have not joined the union is none of your business, employer, and I do not expect you to be passing that information on.”, and the employer says, “Oh well, sorry, but that’s the law.”

Now, what Mr Lees-Galloway is going to stand up and say is “Oh well, look, there’s already an exemption clause. They can tick the right box on the form to explicitly say that they don’t give consent.” Well, I would draw his attention to the statement of the Privacy Commissioner about that, who said that “Requiring an individual to opt-out of having their personal information disclosed is poor privacy practice and is against an individual’s right to exercise some autonomy over their personal information.” So in SOP 147, the Government has the opportunity to correct this egregious error, because I believe that the vast majority of New Zealanders would view this invasion of their personal privacy as egregious and as wrong. It goes too far, and it is an unacceptable breach.

I agree with the Privacy Commissioner, who says that this is a step backward for employment law and for privacy and there is a questionable basis for having such a thing in the law. There is no reason for this—this advances no one’s rights.

I call the Hon Lees-Galloway—Iain Lees-Galloway.

It is a mouthful, Madam Chair. I want to very quickly speak to the points raised by Nicola Willis, because if it was as she described, I would be very concerned about the change that we are making. But, of course, it is not as she describes.

An employee will receive a form when they start a new job and it allows them to indicate whether they intend to join the union and to be covered by the collective agreement or not. Their intention, along with their name, will be passed along to unions by their employer. However, as Nicola Willis pointed out, employees will have the ability to opt out. They will have the ability to opt out, and if they—well, members ask “What if they don’t?” I think people will have—[Interruption]

CHAIRPERSON (Poto Williams): Order!

No, it’s a fair question. It’s a requirement on the employer to provide the form and to get that form back and pass it on to the union if the employee has not opted out.

This is very simple. I have absolute faith in the working people of New Zealand to be able to consider this form and determine for themselves and apply their own personal choice, their freedom of association—their personal choice—to decide whether or not they want to join a union. Members ask “Why? Why are we doing this?” Because we want people to have an informed choice. We want them to know—

💬 Andrew Falloon: Why not opt in?

—what their options are. They wanted to know that they have—

CHAIRPERSON (Poto Williams): Order! Order! I apologise to the Minister. Members have asked the Minister questions and he is trying to provide those answers. It would be really good if we would allow that process to happen.

Thank you, Madam Chair. We want people to have an informed choice. We want them to know if there’s a collective agreement on site. We want them to know if there is a union on site and to decide for themselves if they want to join the union or not.

I respectfully disagree with the Privacy Commissioner. I considered his points, but I respectfully disagree with him. The opt-out gives people the ability to withhold that information from the union if they so choose. It is absolutely their choice, and that is what is laid out in this legislation.

Thank you, Madam Chair. I’d like to talk to clause 4, which inserts new section 18A, which outlines that union delegates are entitled to reasonable paid time to undertake union activities. Now, for those of us on the Education and Workforce Committee, this particular clause was a great mystery because—I’ll call it the “out, then in, then out” clause. There was somewhat of a yo-yo series of activity with this clause.

When the bill was first introduced, the definition of “reasonable union activity” was undefined and vague. There were a large number of submitters—and we all heard them—rightly pointing out that leaving these terms open to interpretation could easily result in significantly different expectations and conflict between employers and unions. It was really not what people would like, expect, or look forward to.

Many submitters proposed that the bill should specifically define what is meant by “union activity”. Again, those of us on the Education and Workforce Committee heard from many particular submitters. They wanted to avoid any of these misunderstandings when it came to knowing exactly what the differences in interpretation would be. So that sounds like a great idea. We all could feel the atmosphere of that in the select committee and, lo and behold, the ministry agreed. We had recommendation No 1 in the departmental report, and that was to “Clarify [that] union activities are the purposes listed in section 20 of the Act, with the exception of seeking to recruit employees as union members.” So that was quite handy, I thought. The current legislation already outlines specifically what union activity involves. We approved that recommendation from the ministry and the Parliamentary Counsel Office put it into the working version of the report.

However, on 3 September, over a month after first receiving that departmental report—over a month later—we received the following letter from the ministry: “Since the time of writing the departmental report, further information has come to light about the current practice between union delegates and employers around paid time to undertake union activities. Most notably, further information has highlighted that some delegates received paid time to perform union activities which are broader than those activities listed in sections 22 and 23(a) and (c) of the Employment Relations Act 2000. Given this risk, the Government considers that the bill should not impact on existing practices, and proposes rescinding recommendation 1 in the departmental report. On this basis, it’s recommended that the bill does not define what a union activity is.”

Now, this seemed extremely unusual, and when we asked why this was, at select committee, we were told, “The Minister’s office had concerns raised.” I’ve got a question for the Minister: did these concerns originate from his office or were representations made to his office from other organisations that he thereby acted on?

If we look at section 20 of the Employment Relations Act, it outlines what makes up the current definitions for union business, and it’s quite extensive. Here is a few of those, and I’m quoting from the Employment Relations Act 2000, section 20(2): ”The purposes related to the employment of a union’s members include—(a) to participate in bargaining for a collective agreement: (b) to deal with matters concerning the health and safety of union members: (c) to monitor compliance with the operation of a collective agreement: (d) to monitor compliance with this Act and other Acts dealing with employment-related rights in relation to union members:”—and I’m just going to quote a couple more and then I have two more questions for the Minister—“(e) with the authority of an employee, to deal with matters relating to an individual employment agreement or a proposed individual employment agreement or an individual employee’s terms and conditions of employment or an individual employee’s proposed terms and conditions of employment:”—one more—“[(f)] to seek compliance with relevant requirements in any case where non-compliance is detected.”

Section 20(3) of that Employment Relations Act, in regard to unions business, includes “(a) to discuss union business with union members: (b) to seek to recruit employees as union members: (c) to provide information on the union and union membership to any employee on the premises.”

So what we’ve got—and I know that was extensive, so I have, on the basis of that, two more questions for the Minister. Why is this definition not appropriate for allowing paid time for union activities? What specific union activities are not included in that comprehensive definition that I just read out from the Employment Relations Act 2000? What other union activities should businesses have to provide paid time for? Where is the insertion back of this clause—where is it going? By sending the letter, is the Minister suggesting, or is the Government suggesting, that unions are in breach of the Employment Relations Act by undertaking union activity in a workplace where it is not currently permitted? Or, put another way, by preferring to not impact on existing practices, is the Government not enforcing the current legislation as it stands? I would like those questions answered by the Minister.

I think it was incredibly and thoroughly confusing to sit there on the Education and Workforce Committee and have an out-in-out clause, and, quite frankly, a really thoroughly unacceptable exchange between the Minister, the ministry, and our select committee, and I seek those answers. Thank you, Madam Chair.

Thank you, Madam Chair, for the opportunity this afternoon to speak on the Employment Relations Amendment Bill. I don’t sit on the select committee that considered this bill, but I do feel compelled to take a call.

💬 Dan Bidois: You should.

Thank you, Mr Bidois. I do feel compelled this afternoon to take a call because of some of the contributions that have been made by members opposite, and particularly some of the extraordinary comments, I thought, made by Marja Lubeck, the first one of which was that “unions are the voice of working people”—unions are the voice of working people. Well, that might be true, Ms Lubeck, for 17 percent of workers who are signed up with the unions and who do consider that the unions are best placed to argue for them and to represent them, but it’s not the case for the other 83 percent of workers. In fact, it’s far higher when you do go into the private sector as well.

The second comment that she made was “Union delegates make life better for everyone.”—for everyone. Well, I ask Ms Lubeck: does that include the businesses that are, effectively, shut down when a union goes on strike. Does that mean the commuters who need to find alternative means of transport when the buses go on strike? And does that mean the exporters who are put at severe risk of losing contracts when port workers and others go on strike? So I tell the committee that the one thing, actually, that is going to suit their interests, rather than unions, is job growth. Actually, if you look at the last few years, that’s exactly what we’ve had. New Zealand, at the moment, has I think the third highest employment rate in the world. In the last two years, before this Government came in, 10,000 new jobs each and every month—

CHAIRPERSON (Poto Williams): Order! We are straying a little bit from the substance of this. Thank you.

Thank you, Madam Chair; I was just coming to multi-employer collective agreements (MECAs) now, which are part of Part 1 of the bill. The problem with MECAs is, as the Minister has accepted, that they will allow for the same conditions across the entire country—the same paying conditions to be spread across the country. The problem with that is that it will potentially provide for the same paying conditions for a transport company in Temuka as for a transport company in Takapuna, and the same for a cafe in Mayfield as for a cafe in Mission Bay. And the issue with that, of course, is that those cafes and those transport companies don’t have anywhere like the same revenues, anywhere like the same cost structures, and, in the case of the cafes, anywhere like the same foot traffic. And so to be requiring them to pay the same regardless of where they’re situated, regardless of what their revenue is, is going to be a huge problem for employers in smaller and regional areas.

The next part I wanted to come to is new section 18A in clause 4, and this relates to union delegates being entitled to reasonable paid time to represent employees. Now, the problem with this particular passage of the bill is it never defines what “reasonable” is. It talks about a number of things that union delegates can undertake, work that they can undertake, but it never limits that; it never puts a limit on the work that they can undertake. All they have to do is notify the employer—notify the employer; not ask the employer, not request from the employer, but notify the employer—what the work is and when they’re going to undertake it.

The hilarious part of this—I really enjoyed this, Minister, so well done on that; it gave me a little laugh. The final part of this, which is new section 18A(5), in clause 4 of the bill, which is brand new, talks about “This section does not prevent an employer from providing an employee with enhanced or additional entitlements to spend paid time undertaking union activities on a basis agreed with the employee.” So not only does it require employers to pay a union delegate whatever they want—it requires that—it also enables them to pay them even more if they want to. How generous! How very generous of you, Minister, to include that particular element into the bill!

I just wanted to touch on, in my last few remaining moments, the Minister’s comments about the opt-out provision when new employees sign on with an employer. Now, the problem I have with that is that what he is saying is that if a new employee signs up, they’ll have to tick a box if they don’t want their personal and private information passed on to a union. If they don’t do that, as my colleague Nicola Willis has pointed out, that information will be passed on to a union, even if the employee doesn’t want it passed on. Why doesn’t the Minister—I asked the Minister; he didn’t address this before—make it an opt-in provision where the employee who’s signing up can opt to have their information passed to a union rather than, effectively, forcing employers to pass on an employee’s private information?

Thank you, Madam Chair, and I very much appreciate being able to talk this afternoon, in my first call, to the Employment Relations Amendment Bill. And if there ever is a bill that talks to the fundamental philosophical divide that exists in this House, it is this bill. And when you think of the language that we’ve already heard from the Government’s side, framing up our current economic conditions that exist in this country, the current employment law that exists in this country, through the lens of righting historical grievances and wrongs, and the massive power imbalance that exists in this country—it defies belief when you actually consider the reality of this economy, that in one breath they’re extolling its virtues, its strengths, and its position in the OECD, yet somehow, in this piece of legislation, we are on the verge of a precipice of collapse because the power imbalance is so woefully, apparently, in the employer’s favour.

And it does make me wonder when I reflect upon their perspective how many of them have put their capital at risk to start a business? How many of them have actually worked through the issues of actually trying to develop a good or a service and take it to the market and need people to work with them? There’s very few. Most of them are looking at the ground, because they come from a theoretical perspective.

Now, the Minister for Workplace Relations and Safety’s contributions thus far I have found fascinating, because he’s clearly decided that the way to try and usher this period of debate that we’re having through the House is to lower the tone of his voice and to be, above all else, reasonable. What it strikes me as is that this is a strategy of “talk softly but carry a big stick”, because this bill is the big stick. It’s the big stick on New Zealand employers. It’s the big stick, actually, on provincial New Zealand, who have a whole series of small to medium sized businesses—often mum and dad businesses—trying to make their way in the New Zealand economy and through that the global marketplace. This is the big stick that he’s wielding. But he thinks that perhaps if the language is softened in terms of his response, the image that he will portray through those watching is one of eminent reasonableness.

Well, actually, the area that I’d like to talk about, particularly clauses 13 and 14, and the conversation that we’ve already started this afternoon about forcing employers to enter into multi-employment collective agreements if one or two of their employees would like that to be pursued, I think, has real risks in constraining growth and investment across regional New Zealand.

Now, I represent an area which is going exceptionally well. It’s the area of Tauranga, the wider Bay of Plenty. I represent an area which is very strong in terms of its kiwifruit as a sector, and I know that there is significant concern that this legislation is going to—incrementally, perhaps, at first—roll across the sector a whole lot of obligation in terms of a collective union approach, and I think that is a very porous impact for a region that is doing exceptionally well.

We are doing extraordinarily well in the Bay of Plenty. Where is the need for such regressive legislation? I don’t see it, and I am a strong supporter of this very considered Supplementary Order Paper 114 in the name of my colleague Dan Bidois that talks to, essentially, this challenge. His suggestion, of course, is to delete clauses 13 and 14, and I think if that happened, that would give some of the employers in my region, who are part of an industry which is one of the fastest growing in the country, some comfort that actually the Government has heard them and that there is no need to force such radical change into the employment arrangements of New Zealand.

And I found it very telling, the comments of the Minister when he reflected on the Port of Auckland and said they don’t have a collective agreement at the moment. He sees no reason why they would rush to that. He didn’t suggest in any way that this legislation would prevent that—of course, far from it; it encourages it. But then, right at the end, the sting of the tail, he said, “But, hopefully, the Ports of Auckland will consider that the benefits—[Time expired]

Thank you, Madam Chair. I want to just follow up on a couple of speeches that my colleagues have made in this debate on Part 1. But just following on from Todd Muller’s very good contribution, one of the things that became very apparent at select committee as the Education and Workforce Committee was hearing submissions on this bill was the number of employers who came and said, “Well, look, if the Government is determined to foist this legislation upon us, then what will inevitably happen is that businesses will modify their behaviour. They will change their way of doing business. They will adapt and adopt to maintain profitability and to remain competitive with the domestic economy and also internationally.”

One of the submitters was actually from the Port of Tauranga, and the HR manager from the Port of Tauranga came to select committee and said, “Well, look what will happen is if the militant port worker unions—who are traditionally very militant—decide to play silly buggers, silly games, then what we will do is just speed up our process of automation.” And then what she said was that, actually, there was hardly a single job at the Port of Tauranga that could not be automated. And, actually, therein lies the perverse nature of this legislation.

💬 Todd Muller: Be careful what you wish for.

Be careful what you wish for, Todd Muller says. Be careful what you wish for, because that is exactly what might happen.

But I want to just go back to a very thoughtful contribution from Nicola Willis around the basis of the submission from the Privacy Commissioner, and it relates to the clause that refers to, in Part 1, the need for an employer to pass on contact information of new employees who are not union members. Now, the Privacy Commissioner is not known for his extreme views. He’s a measured, considered person, who brings to the role, I think, a very careful view of the world and the Act that he administers. So when he comes to a select committee of this Parliament and gives a scathing submission that says, in part, that placing the burden on employees to opt out of sharing their details may unduly influence their decision. He said that a decision, once it has been made by an individual, to accept an individual employment contract—and that he sees no reason why their details should be provided to a union. A union, effectively, of course, is a third-party independent organisation, and no employer would consider for one minute providing personal contact details to a third-party independent organisation such as the local tiddlywinks club, or the bowling club, or something like that. But this bill, if it were passed, would place an onus on employers to provide that kind of information, and this is something that is deeply concerning.

And then what was the response—the response from officials in their departmental report to the issues that the Privacy Commissioner raised and his concerns? Well, their response was pretty soft, I have to say. One could almost be certain that it had come as a result of a conversation or two with a variety of people who might have shared the view of the authors of the bill. But what we found in the departmental report was something quite stunning: that our much-lauded Privacy Act of 1993 is, in fact, going to be subordinate legislation to this Employment Relations Amendment Bill—subordinate legislation. So our privacy practices that we hold dear and care for carefully, that we nurture as a nation and as a Parliament, are going to be subordinated by this trade union - friendly piece of legislation.

Now, most New Zealanders, I think, will be horrified to find that out—that the interests of the trade union movement are going to be put ahead of the privacy of New Zealand citizens, and their decision is going to have to be an opt-out decision if they don’t want that information passed on. Well, that is the same as used to happen with Reader’s Digest. They used to send out subscriptions and Reader’s Digests to people and say, “Well, we’re going to keep sending you those magazines and you’re going to have to keep paying for them unless you opt out, unless you tell us you don’t want to receive them any more.” Well, that practice has been long since made illegal and this process of having to opt out should similarly be made illegal.

Thank you, Madam Chair, I’m very appreciative. Hey, well, guess what? The unions are back in charge, aren’t they—they’re back in charge. You know, I find it fascinating that the very first piece of language used in reporting about this bill was “a suite of changes to promote and strengthen collective bargaining and union rights in the workplace.”—beautiful, beautiful! And Labour even went on to say and admit that “This law is about strengthening union rights and union members.”

Well, isn’t 2020 going to be fun, when we’ve got a Labour - New Zealand First Government standing up there—and now I can see the Hon Shane Jones is on the other side. They’ll be standing up on the hustings, talking about what a great thing this is for New Zealand, and how we are driving forward New Zealand and making it more prosperous by bringing about this change. Well, I think that’s going to be a really interesting argument, because this is a continuing process by this Labour - New Zealand First Government to remove the lid of optimism from business—the lid of optimism. And, you know, we’ve seen it. They’re imposing the costs on businesses: “They’re all right—they can pay for it. They’re good for it.”

The second thing is it is making it harder for immigrants to come into New Zealand to work in our good businesses in New Zealand, and now we’ve got these wide-ranging employment changes. That’s all going to be the framework that cuts to the core of how we operate in New Zealand, and I just think there’s an assumption around this.

The first thing I want to say is that I support the role of unions. They have a part to play it, albeit it’s interesting that in the market environment they’ve seen their union membership plummet because people didn’t see the need to join a union. There are only 355,000 people in the union movement, out of 2.7 million in New Zealand—that tells you what they see as the value of the union movement.

There are cases where we do not have good employers, but the corollary is also that not all employers are bad employers. The vast majority of the 530,000 businesses we’ve got in New Zealand, they are good. They are family-run businesses, hard-working mums and dads working there, employing their people—good people. They are part of the fabric of those businesses and, in most cases—most cases—they are doing a great job. There’s teamwork, and that’s how everyone survives, including political parties. That’s why—teamwork—and that’s why with the assumption that we need to make these wholesale changes, I do not believe the case has been made.

I want to talk about the issue around the MECA. We’ve heard a bit about this, but one aspect that we’ve heard a little bit about—my colleague Andrew Falloon from down in Timaru talked about it and he used the example of transport from Timaru to Takapuna, and that is right. In many businesses, people choose to work the way they want to work. I know that in my wife’s business—where most of them are women—often, the people who want to go to work early don’t want to take long lunch breaks because they want to get home to their children, and they have got the flexibility around that.

So the worst thing about the MECA award is how it can be imposed, and we know how the unions are going to go about doing it. They will find those businesses that are the wealthy ones who can make the changes, or the ones that are in a position where they have to agree to union demands. They will decide those changes, and then they will spread them across the rest of the industry and standardise the employment arrangements, and I don’t think that’s right. I don’t think that’s right. People should have the right to work out when they want to work, how they want to work, and on what basis they want to work.

The other thing that hasn’t been picked up on is that under new section 41(3) and (4) in clause 12, the unions actually have the right to initiate bargaining 20 days earlier than the employers. I don’t understand this, and I’d really like it if the Minister in the chair could deal with this. There’s been absolutely no explanation from the Government why union representatives should be able to begin bargaining earlier than the employer—20 days earlier, in both cases, and I refer to new section 41(4)—[Time expired]

Thank you, Madam Chair. I want to briefly speak to the point that Andrew Bayly just raised about clause 12. I did speak to this earlier but he may have missed it. There are two reasons, really, why we want to restore the right of unions to initiate first. One is to bring some order to the process. There have been examples of people kind of racing each other to be the first to initiate and we’d really rather just restore some order to the process. Then the second reason, ultimately, goes back to the point I made earlier about the inherent imbalance between the employer and the employee. Employment legislation, in many ways, seeks to overcome that imbalance and this is one way of doing that, by putting the employee first in that process.

The only thing I can say positively about that last contribution from the Minister in the chair is it saved me from the dubious pleasure of having to follow immediately on from my good colleague the member for Hunua, because I simply can’t shout as loudly as he can, nor do I think I can match his impeccable turn of phrase or his passion or his energy. But someone has to and I’m glad the Minister chose to do that. But that brief comment there from the Minister is absolutely extraordinary, and as my good friend the member for the Bay of Plenty noted before, the Minister seems to have adopted this idea that if he speaks slowly he will sound measured, and softly, he’ll sound reasonable, when in fact, as the member has said, he is looking to bash employers in particular over the head with a very big stick.

I do want to commend the fine work of the Hon Scott Simpson. He was kind enough to make some complimentary remarks about his National Party colleagues before, but I was with the Hon David Bennett at an event in Hamilton last Friday hosted by the Waikato Chamber of Commerce. I think it was meeting No. 40 or thereabouts that the Hon Scott Simpson has been holding around about the country where he has been going into small and large communities to meet with people who will be directly affected by these changes, to spell out what they mean, and to hear their concerns. And consistently he has been hearing that those concerns are widespread, deeply felt, and very, very genuine. It is remarkable, listening to those employers—particularly in my area—that they have not been treated to the same courtesy by members of the Government, who you would think would have been out there justifying the changes that they are inflicting on the country.

Let me also commend the excellent contributions—we’ve had so many, from so many other members—just in the last few minutes from Nicola Willis and, as I’ve mentioned, from Todd Muller. The reason why I have singled those two out is because both understand the workforces so well because they are of them. They come to this House bringing practical experiences—learnt experiences—of what really makes a difference and what helps to make our economy tick. What we’re hearing from the members opposite is theoretical claptrap, to be quite honest; it is not born out of actual experience.

One of the things that is particularly alarming that we’ve heard in the last few minutes—and I do ask the Minister and other members to focus on this—is the feedback that many employers, particularly in outfits such as the Ports of Tauranga and the Ports of Auckland, are saying that if these changes are to go ahead, then the practical outcome will be increased automation; in other words, exactly the opposite of what you would think a Labour-led Government would be wanting. It is going to put pressure on jobs in this country.

Why would we do that at a time when we have a near record level of employment? Why would we do that when the economy has been going so well under the existing industrial relations framework? Why put it all at risk? Other than—and I have to choose my words very, very carefully because the previous presiding officer said we can’t attribute improper motives—clearly the Labour Party and the Green Party, who I notice seem to be very, very silent this afternoon, campaigned at the last election with the strong backing of union members. I think I’m allowed to say that. They made certain commitments, and now—

💬 Hon Scott Simpson: Their biggest financial donors.

They may well have been the biggest financial donors, as Mr Simpson said, but I’m not linking the two, because I’m trying to stay within the Standing Orders. What, of course, we have now is a union regime that is saying, “Right, we have put you there. What are you going to do for us now?” And the answer is this bill. Nothing more clearly answers that question than this bill.

I waited in vain for the Minister, when he began his contribution on Part 1—when he was talking about the fact that Part 1 deals with the collective bargaining framework, in particular, to implement a suite of changes to promote and strengthen collective bargaining and union rights in the workplace—to go on and say who had been calling for these changes.

I represent the electorate of Hamilton West, and in my electorate I’ve got light industry. We’ve got retail. We’ve got large employment opportunities in health and education and social service provision, in, as I said I think, light engineering, in manufacturing; in other words, across the gamut. We’ve got the service sector for the dairy industry. I’ve got Te Rapa dairy factory in my electorate. There are a whole lot of people. And some of those workers are members of unions, and that’s fine; I absolutely respect their right to belong to those unions, and I hope that they derive some benefit from doing so. But there are many others who do not, and the Minister and his colleagues who have spoken—[Time expired]

I move, That the question be now put.

Before I call Simeon Brown, as a member of the Education and Workforce Committee, I must remind members that we’ve had several arguments presented several times across the course of this particular debate. I’m looking for new material and new arguments.

Thank you, Madam Chair. I’d like to speak to my Supplementary Order Paper 143, which is in relation to clause 12 of the Employment Relations Amendment Bill. This Supplementary Order Paper seeks to amend by deleting clause 12 of the bill. The clause as it currently stands allows union representatives to initiate bargaining 20 days earlier than an employer. This will lead to a potential confusion as to what advantage is conferred by early initiation, which may detract from an efficient bargaining process.

In our view, good faith bargaining requires all claims to be considered and responded to before bargaining can reasonably be considered complete. I understand the Minister took a very short call in relation to this issue earlier and, essentially, said that he wants to bring some sort of order to the process.

💬 Marja Lubeck: It always used to be like this. Unions always negotiated earlier.

My question to the Minister is—and I appreciate the interjection from Marja Lubeck, on the other side, but I’m trying to ask a question of the Minister in relation to clause 12, which is around what is the issue that is being raised here in relation to the ordering currently, where both parties can initiate? He alluded to some sort of rushed process whereby people try to go to collective negotiation first, both at the same time. I’d like to know from the Minister what evidence he had which shows that that is of some concern, or whether that is leading to bad outcomes in the collective negotiating process—whether that’s actually leading to employers and unions not concluding bargains or collective agreements which are actually of a conducive nature to a good employer-employee relationship.

I think what clause 12 does is it pits employers against unions. It gives an advantage to one over the other. And I was just reading through the departmental report. We asked this exact question in the select committee, and the response from officials was—and I assume the Minister stands by this—that the amendment is intended to allow unions to set the agenda of bargaining by initiating first, in order to address the inherent imbalance of power in employment relationships. And I challenge that statement there. I think of the employers in my electorate, many of whom are very small, many of whom are not large employers. Many of them are in retail or in light industry, small industry, marine-based employers in Half Moon Bay Marina, and predominantly, then, service based, whether that’s through the shopping centre - based sort of industry.

So I ask the question: why is this pitched in New Zealand in a way which is sort of trying to make it out that these employers are all big employers who are needing to be brought to task, or brought to bear to the power of the union? Why do we need to lead to a situation where our unions are trying to address the power imbalance, when, clearly, the vast majority of our businesses are small businesses—they don’t employ a lot of people—and we are, essentially, saying that a union can come along and has a 20-day advantage over the employer, over the business? That will, I think, lead to a breakdown in relations rather than actually being conducive towards bringing employers and employees together to try and actually lead to good outcomes here for the betterment of New Zealand.

I do agree with my colleague Andrew Bayly that there is a place for unions to negotiate these bargains, but there also needs to be recognition of the fact that employers, ultimately, provide jobs. They are the ones who actually provide jobs for workers, and they are the ones who pay the wages, and they are the ones who actually have to create the wealth so that people can actually have a job and earn an income and have a livelihood. And, yes, there can be bad employers, but we also need to ensure that we’re not leading to a situation where there is a breakdown in relationships between those employers and the unions which they work with. Many employers would say to me, “Yep, generally, we have a good relationship—[Time expired]

Thank you very much, Madam Chair. I’d like to speak to Supplementary Order Paper (SOP) 111, in the name of Scott Simpson, which is to delete clause 4, in Part 1, which provides for a union delegate to conduct union activity during their working hours while retaining their pay. My story is also relevant to SOP 145, by Parmjeet Parmar, which talks about discrimination against employees.

The reason that I want to talk to this clause 4 is because recently I was unwittingly involved in a very unsavoury and bullying campaign by the RMTU—that’s the Rail and Maritime Transport Union. Not very long ago, I found a flyer in my letter box. The flyer was put into every other letter box in my neighbourhood as well. Now, I don’t know in this case whether the RMTU wrote that on their employer’s time, but clause 4 would have made that legal.

Whenever or wherever they wrote it, it was an appalling example of crude bullying which focused on targeting and pillorying the family of someone they didn’t agree with. Now, here’s the flyer, and this is what it says. I delete the name of the person and the company out of respect for their privacy. It says: “Why the blah-blah-blah company workers are on strike. We thought you would like to know that one of your neighbours, blah-blah-blah name, blah-blah-blah full address details, blah-blah role, at the blah-blah company, which is embroiled in an industrial dispute with the RMTU”. Now, it carries on with a pretty colourful list of the RMTU grievances.

This flyer is wrong in so many ways. Firstly, it’s wrong because it deliberately targets and outs an employee they don’t agree with to their neighbours. Secondly, it’s wrong because it provides their details and their home address to others. And thirdly, why is the RMTU doing this? What’s their motive? Why did they go to all the trouble of putting this flyer in my letterbox and all my neighbours’ letterboxes? Why would the RMTU want to breach someone’s privacy? Why would the RMTU broadcast details of their home address, and would they like that if someone did it to them? What does the RMTU want to happen next? Do they want me to invite this person to the neighbourhood street party? I don’t think so. Do they want me to give neighbourly support to this person because they know that bullying is highly damaging? Maybe, but I don’t think so. Or do they want me to join them in their bullying? Do they want me to, let’s say, picket the house or put nasty flyers in their letterbox, or do they want me to threaten and pillory their family? Now, I couldn’t possibly say, and I quote the Prime Minister: “You read between the lines.”

So I absolutely oppose this bill because I have recently and personally experienced the dangers of increasing the powers of the unions, and I support employers who would be horrified to think that anyone would run a bullying campaign like this, and, what’s more, that if this bill passes, they can do it on company time and the employers have to pay. My final question is: if the employers are paying unionists for this type of union activity, would that make them accessories to the crime of bullying?

I move, That the question be now put.

Thank you for the opportunity—

💬 Hon Member: Oh, this will be good.

—it will be good—to speak to this bill, the Employment Relations Amendment Bill. First of all, I do want to acknowledge my colleague in front of me, the Hon Scott Simpson, because, unlike many of you, he has been on the road for months. He has talked to employers all around New Zealand in around 40 meetings, and he gets it. He gets it. He has heard exactly what I’ve heard in my electorate. Every single employer I have spoken to—every single one—has said that all this type of legislation does—

💬 Jamie Strange: How many?

—is speed up automation—hundreds, Mr Strange. Hundreds. All it does is speed up automation as companies try to work around these new things. I find it ironic really that, coming from the other side, in an area where they proudly boast there is full employment—full employment—they would see that this could somehow be a good thing.

There have been two things that have really irked employers: first of all, the fact that unions can enter the workplace in a more significant way they can now, and the second was when the Minister came out on national TV and said that if employers could not pay the minimum wage, and the new minimum wage, they should get out of business. That is so far removed from how hard it is for employers to make money in small cafeterias, restaurants, all those things, and, Mr Chair—I’m coming back to the bill and Part 1, as you’re about to remind me—it’s really important that we understand the dynamic here.

I want to particularly come back to new section 62A, inserted by clause 18, which is what the Privacy Commissioner said. I’m coming back—and I know the Minister shakes his head—because he said, “I respectfully disagree with the Privacy Commissioner.” That’s what he said—stood up in this committee not a short time ago and said that. That submission from the Privacy Commissioner was scathing—scathing—and I tell you why it’s scathing, and I want the members of the other side to think about this. Why are unions treated so differently in this bill under the privacy provision than all sorts of other service providers? Why do unions have this part of the bill enacted for their benefit? Why don’t we say the same about superannuation trusts? Banking trusts? Medical insurers? No, we are choosing unions specifically to have a provision inserted in this bill that the only way of getting out of it is if you physically say, “I want to get out of it.”

If this side of the Chamber, as an example, to put a corollary back at you, put up a piece of legislation that said whenever a new employer does something, we automatically give the names and addresses and phone numbers of the National Party to that employer, there would be outrage on that side of the Chamber. But what you’re saying here is we will automatically, if they don’t sign, or if they say they’re happy to be contacted, give that information to the union.

So I have heard what the Minister said, and he respectfully disagrees, but I have not heard one reason so far as to what his differentiation is on privacy—not one—other than that there is an imbalance occurring; there has been an imbalance and we’re seeking to address that. So I’d like the Minister to stand up and tell me and the committee exactly why unions should be treated so differently and specifically in the privacy provision of this bill. As we look at rewriting the balance, as the Minister has said, I would argue that there is no need. The market at the moment is giving the balance. People in my electorate—if they don’t like the terms and conditions—they just go to another company, because there is that much of a shortage of skilled workers. That’s what they say to me. That’s what employers say to me: “We don’t need any of this. We don’t need the unions to be heavy-handing us. We are looking after and keeping our employees because if we don’t, we are not good employers, and they simply leave.”

So, in closing, my final plea to the Minister is this: can he please explain to this committee why the Privacy Commissioner made his views known, and why he thinks unions should be treated differently to banks, insurance companies, medical insurance companies, and every other Tom, Dick, and Harry?

I move, That the question be now put.

Thank you very much, Mr Chair, for the opportunity to contribute on the subject of the Employment Relations Amendment Bill. I’d like to speak quite tightly to the provision in clause 8A, which would insert a new section 30A into the Act. This is the provision about employer’s information-sharing obligations. It’s worth noting that the obligations would belong to the employer, not the information, so it’s not the employer’s information but rather the union’s information that the employer would be obliged to share, and that much is made very clear as we go through and look at the detail of that provision.

So the first thing that we see in the heading to section 30A, as it will become, is that the “Union may provide employer with information about role and functions of union to pass on to prospective employees”. I’d like to highlight the fact that it’s significant that it would be prospective employees who would have this information passed to them. No doubt the intention of the legislation is that prospective employees would have the opportunity to find out information about the union, such that that could be relevant to whether they enter into a collective agreement or not. But the difficulty with this is that what that actually means, if this provision is to be meaningful at all, is that the employer must share with the union the fact that someone is considering the possibility of working in that workplace. That might be something that is somewhat private to that person at that time, and there might be a number of good reasons that a person is not keen for a prospective employment relationship to be known, including, for example, that he or she is currently employed elsewhere and would not want that other employer to know about such prospective change of employment.

But if I could move now to new section 30A(2), inserted by clause 8A, we’ve got a subsection that I regard as somewhat nugatory. That’s a word I haven’t used in this Chamber before, and despite the fact that it has the word “tory” in it, I think it’s quite relevant and appropriate and significant in the context of this clause. It’s pretty meaningless, really. We’ve got a situation where the union can ask the employer to pass on certain information, and here we are told that the union must “specify the information” that it’s asking to be passed on. Well, it would be an extraordinary thing if the union were asking for information to be passed on but not actually saying what that information is—so, so far so good. That’s subsection (2)(a).

Subsection (2)(b) is to “specify the form … of the information”. Well, I don’t imagine that many employers would be passing on information, for example, in hieroglyphics, when passed to them by the union in, say for example, the English language or the Māori language or New Zealand Sign Language or another official language or equivalent, but nevertheless we’ve got that provision. We see as well that the union must provide information to the employer in the specified form.

So we’ve got all the ingredients there for information to be passed to prospective employees, notwithstanding the privacy implications of that, and then we’ve got this so-called request that can actually be refused by the employer only in pretty narrow circumstances. So to you, Mr Chair, I submit that actually what we’ve got is not so much a request but a requirement that can be refused in pretty narrow circumstances. The first is that the information is confidential. Well, that’s fair enough. I don’t know why such information would be confidential if it’s information about the role and functions of the union, but nevertheless we’ve got that, and I suppose we could regard that as additional protection and therefore not objectionable in itself.

But then we hear another reason that the information could be refused to be passed on, which is that the information could be about the employer. Well, it seems to me completely bizarre that we could even contemplate that the information would be about the employer, because the only information that they would need to pass on is information about the role and functions of the union. So there’s an element of self-contradiction in the way that this clause is constructed, and it’s somewhat baffling, and that’s before we even get to look at the question of who would be deciding the point in subsection (3)(b)(ii), which is whether it’s “likely to, mislead or deceive the prospective employee;”. We don’t know who gets to decide that; whether that’s the union or the employer—perhaps it’s the prospective employee himself or herself. The legislation is silent on that point.

We look at the phrase “is likely to,”. Well, that implies that some kind of standard of proof—again, whoever decides—of 50 percent or more. So it’s not just the possibility, for example, that deception or misleading would take place; it’s a determination of the likelihood, and that seems to me a pretty interesting threshold in the context of information that the employer is being asked to pass on. And then continuing to—[Time expired]

Very gracious of you, Mr Chair. Yes, look, I’d like to pick up on the comments from the Minister Iain Lees-Galloway—in particular, his reference to the imbalance between employers and employees being the primary driver for a lot of this expansion of union power. I suppose the obvious point to make is that the New Zealand economy is not like your typical British one, where the origins of the union movement developed with very large companies with thousands of employees working in the coal and other industries. It’s an economy based on very small businesses, with many of them being very small.

So if we look at Supplementary Order Papers 111 and 114, it becomes relevant, because if you look at a small business with three or four employees, a couple of whom are union members—for example, a little bookshop in the Mount Eden shops where I visit. They’ve got five employees, and they are really struggling to survive in a very difficult industry, with high rents, with—

💬 Hon Scott Simpson: Retail is tough.

Retail is tough, everywhere you go around the country. So it’s a tough business. Every day, they are struggling to pay the wages bill, to find the GST in the months when it’s due, to pay the provisional tax—all the things that they’re doing. Whether it’s offensive or naive to think that the employer running around in those circumstances and struggling to stay afloat is all-powerful and the employees are somehow all weak—that’s just not a realistic description of how the New Zealand economy works—

💬 Hon Scott Simpson: Ideological.

—and to say that that small employer with a handful of people and a couple of union members has to be liable for paying for the conduct of union activity during their working hours and to foot the bill for them to be doing whatever it is that they want to do, I don’t think is a reasonable thing. That’s why I support Scott Simpson’s Supplementary Order Paper 111.

Then, when we come to Dan Bidois’ Supplementary Order Paper 114, it is about removing clause 13, which draws all employers into collective agreements concerning more than two employers, and this brings in the regional setting. Again, I mean, everybody’s trying to work out which are going to be the two industries that are going to fall into these multi-employer collective agreements that so many employers are worried about. The Prime Minister, when she was under pressure to explain just what—there’s so much uncertainty across the business community about what impact this will have on their businesses, and we’ve combined all that uncertainty around—

💬 Hon Ruth Dyson: Stop scaremongering.

Well, it’s not scaremongering, actually. It’s about, again, this assumption that businesses are just there to be milked and that they are powerful.

So all this uncertainty is out there about what impact this will have and what industries are going to be drawn into this old, nationalised agreement. It’s implying that you’re going to have to deal in the same way for somebody employed in Auckland as you will on the Hokianga Harbour or down on the West Coast or over in the Wairarapa, even though the circumstances of those businesses are colossally different. So if we go back to my example of the bookshop in Mount Eden, it has to be—

💬 Marja Lubeck: Are we on Part 1 of the bill?

It is Part 1. [Interruption] I don’t know what you’re talking about. We’re talking about clause 13 in Part 1, and that is what we are focused on here. We want to ensure that our small businesses have the ability to survive and continue to provide the opportunities not just for employers but for the people who are growing and building those companies themselves. These small-business owners are already being confronted with the prospect—and you might say “scaremongering”; it’s not scaremongering—of a capital gains tax on those small businesses that they’re building. They are—

💬 Clayton Mitchell: It’s got nothing to do with it.

The relevance to the bill—[Time expired]

Thank you, Mr Chair. I have addressed a few times already a couple of the matters that members are raising, but I do want to try and provide as much information to members as I can.

Paul Goldsmith described the inherent imbalance between the employer and the employee as “offensive or naive”. Scott Simpson interjected that it is “ideological”. It is none of those things. It is enshrined in our employment law. Section 3 of the Employment Relations Act says “The object of this Act is—(a) to build productive employment relationships through the promotion of good faith in all aspects of the employment environment and of the employment relationship—… (ii) by acknowledging and addressing the inherent inequality of power in employment relationships;”. That’s not ideology of the Labour Party or of the Government. It is not offensive or naive. It is enshrined in our legislation.

It’s been there since 2000. It wasn’t repealed by the National Party when they were in Government. It is acknowledged by New Zealand as a nation in our legislation; it is not acknowledged by the International Labour Organization. So when I say that many of the aspects of Part 1 of this bill are designed to give effect to acknowledging and addressing the inherent imbalance between the employer and the employee, that is not some ethereal notion; it is enshrined in the legislation. We are required by the legislation to consider those matters.

Paul Goldsmith is slightly confused between fair pay agreements and multi-employer collective agreements. Multi-employer collective agreements have been around since at least the year 2000—one could argue, in previous forms of New Zealand’s employment law as well, but they have been around since the Employment Relations Act first came into being in the year 2000. They exist. A number of people are covered by multi-employer collective agreements right now, right at this very moment in time, and, in fact, the changes that this bill makes, essentially, take us back to the situation pre-2015—so a situation that the previous Government was happy to leave in place for six years. So I encourage the member to perhaps just school up a little bit on employment law and understand what multi-employer collective agreements actually are.

Chris Penk raised a good point. He asked what happens—using the example of if a union provides information to the employer that’s to be passed on to the employee, and there is some dispute between the employer and the union as to whether that information somehow breaches this legislation. As with any breach of this legislation, I would encourage those parties to deal with each other in good faith, see if they can resolve the disagreement, communicate with each other, be responsive, and, ultimately, if necessary, go to mediation and use the usual processes to resolve that issue. A fair question—I hope that’s an answer to it.

Thank you, Mr Chair. As my colleague Todd Muller indicated earlier on, the Minister’s been speaking quietly about a massive big stick which is going to be wrought across the collective heads of businesses up and down the countryside, and so whilst he’s attempting to answer questions, he’s still not really giving good justification or, indeed, any justification for why the changes are necessary at a time when unemployment is low, when businesses tell members on this side—and I’m sure on the Government side, as well—that the biggest challenge they have is to find and keep good quality staff members. Recruitment is very difficult.

What is really at issue here is recruitment of membership for trade unions, and one of the issues that I want to talk about in this contribution relates to my Supplementary Order Paper (SOP) 112. This is a matter that was raised consistently and regularly by submitters to the Education and Workforce Committee by people that we’ve been engaging with around the countryside and by businesses up and down the countryside, and it’s the matter of union access to workplaces in an unfettered, unreasonable way. Now, Minister Iain Lees-Galloway has indicated that he’s introducing his SOP 153 that makes some small changes in this area, but, essentially, what concerns businesses is the matters that are contained in clause 6 and clause 7 in Part 1, and they relate to allowing union representatives to visit workplaces without notice, in some cases without consent, and without the agreement of the business managers and operators.

Now, this is a matter that causes business managers and operators immense concern, for a number of reasons. The one that is raised most regularly and frequently is, of course, issues to do with health and safety. These are matters where businesses take health and safety incredibly seriously these days, and businesses don’t want just any Tom, Dick, and Harry walking on to the site unannounced and without forewarning or permission or consent, and then just going about the place, primarily engaging with staff to recruit union members.

Now, the difficulty here is that that kind of abuse of trust leads to a breakdown in the principles of good-faith bargaining and good-faith relationships between employer and employee, and the question really needs to be asked as to what’s wrong with the current situation, where businesses almost always provide an opportunity for union representatives to visit. The union representative will ring up or send an email and say, for example, “Hey, Dan Bidois, we’d like to come and talk to your staff at 10 o’clock, at smoko time next Tuesday, and we’d like to talk to them about union matters.”, and, inevitably, the employer will say “Yeah, that’s fine.”, because the employer knows who’s coming, when they’re coming, what they’re coming for, and what they’ll be doing, and there are no issues around that sort of thing. So businesses are naturally concerned about this proposed change, which—according to the bill, in clauses 6 and 7—would be reasonable.

Now, the difficulty with this question of reasonableness is that the reasonableness test is, of course, a bit like beauty—it’s in the eye of the beholder—and what is reasonable access to one person may be entirely unreasonable access to another person. These are the sorts of things that concern businesses and employers up and down the countryside. It was without doubt one of the issues most regularly raised with me as I was talking to business people up and down the countryside over the last several months, and they remain unconvinced of the need for change. The Minister has failed, in my view, to provide a case that is cogent or, indeed, compelling for change.

What will essentially happen here is that in terms of this bill when it’s passed—because the Government has a majority—some poor employer will become a judicial guinea pig for a judicial definition as to what is reasonable access and what is not reasonable access, and for what’s reasonable notice and what’s not reasonable notice. That is inherently unfair. So my Supplementary Order Paper 112 addresses that matter and simply provides an opportunity that means that union representatives, if they want to visit a site, must seek consent.

At the risk of repeating myself, I will once again address the question of union access. The member Scott Simpson raised concerns about union officials entering the workplace in a fashion which is unsafe and creates undue risk in the workplace.

I remind members, again, of section 21(2) in Part 4 of the Employment Relations Act, which states, “A representative of a union exercising the right to enter a workplace—(a) may do so only at reasonable times during any period when any employee is employed to work in the workplace; and (b) must do so in a reasonable way, having regard to normal business operations in the workplace; and (c) must comply”—must comply—“with any existing reasonable procedures and requirements applying in respect of the workplace that relate to—(i) safety and health; or (ii) security.” Additionally, union officials have to make themselves known to the employer. They have to provide identification, if that is requested from them.

So I am absolutely certain—as I’ve said, I think, three or four times now in this debate—that that provides the right balance so that union members are able to get access to their official when they want to get access to their official. If they ask for their official to come in and deal with a situation in the workplace, the union official has the ability to access the workplace, but that is balanced with the very fair and reasonable right of the employer to have control of their workplace.

I think the combination of the existing Act and that question of reasonableness—that’s a word that’s been in the Act since the year 2000. It is something which employers and employees have been able to work easily with for 18 years, if not more. So I don’t accept the member’s points about “reasonable”.

💬 Hon Scott Simpson: So why the change?

We’re not changing the question of “reasonable”; what we’re saying is that union officials should be able to access the workplace when their members want them to be able to come on site, and we’ve balanced that by saying that where there is no collective agreement, where there is no ongoing union presence—in that situation, union officials have to seek the consent from the employer.

Mr Simpson, rightly, said, “Shouldn’t it work like this? Shouldn’t it be that the official calls up and says, ‘Hey, when’s a good time for me to come in? I was thinking maybe 10 o’clock on Thursday—is that around about smoko? That’s a good time to come in.’?” That’s the way it operates in the vast majority of times. Certainly, when I was a union organiser, that was the way I operated. You’ve got an ongoing—

💬 Hon Members: Oh!

—enduring relationship with the employer. Oh, what a surprise—read my bio. When I was a union organiser, that’s how I would operate. I would contact the employer, I’d let them know that I was coming, and you have an ongoing relationship with the employer as a union official. It’s not some one-off thing where you just charge into a workplace and cause mayhem and disappear again. You’ve got to have an ongoing, enduring relationship with that employer, and that’s why it is important to treat each other with respect and to deal with things in an open and communicative manner.

Of course there will be examples where the employer is not keen to work in that way, and that’s why we need to have the strength of the law to give people that opportunity, so that union members have their freedom of association upheld and the right to get access to their union official. I hope, having discussed this a number of times now, that that addresses for members the question of union access.

Thank you, Mr Chair. I also want to refer to union access into the workplace, and I can assure the Chair that I will cover some new ground in my contribution, but just in the meantime, I think the intention of the bill has been canvassed in this House on a number of occasions. It’s there, in black and white, in the bill. It’s around strengthening the power of the unions in the workplace.

OK, it was no secret, but yet again, this afternoon, we’ve had the very Minister who said “as a former union organiser”—well, now we’ve seen it yet again. This bill is not about the workers, because only 17 percent of workers in New Zealand are affiliated or belong to a union, and they are not highly represented amongst small business, either. So when you have a union organiser—as with the Minister—so very, very determined to increase access into the workplace, uninvited and without permission, then all is unmasked as to what this bill is about. It’s not about the workers; it is about the unions and the power of the unions.

I’d like the Minister to answer this question. He has brought to the committee Supplementary Order Paper (SOP) 153, which modifies that access so that access to a workplace without permission can now happen, under his SOP, only where there are union members working in the workplace who have a collective agreement, but not for workplaces without union members. But I’d like to know what is the difference. Why is it that the union organiser can walk in unannounced and unbidden into a workplace?

💬 Marja Lubeck: Because it’s their members.

Oh, it’s the members. Oh, so it’s their members. I would like to have this question answered: why is it that union members and union organisers can’t meet outside of working hours? Why can’t that happen—why can’t that happen?

That is why I’m very pleased to see that the Hon Scott Simpson also has SOP 112 on the Table, which would seek to delete clauses 6 and 7 altogether. This bill should not be about a union organiser being able to walk through the doors in a processing plant which has union members with a collective agreement who are processing fruit into jam or into chutney, and where it is truly a dangerous place, nor should they be able to have unannounced access to into a business where there are clients, customers, or patients present, because—

Tim van de Molen: Children.

—yeah, children—the employer and, indeed, the employees of those businesses may be conducting matters that are and should be private. If, as a customer or a patient, I walk into a business which has got union members working there, I don’t want someone walking in unbidden, because my privacy is impacted. I’m really interested to hear the Minister’s response to the privacy issues.

Health and safety is one thing, and I disagree with the Minister. I would say to the Minister that a union organiser walking into a factory which has got hot food processing going on does constitute a danger under the health and safety legislation—of course it does. Are they going to stop and put on the gumboots and the overalls and the hats and the earplugs, and all those things that we do when we visit processing factories—are they? Well, I don’t know, and I’d like the Minister to answer those questions.

I move, That the question be now put.

The Hon Scott Simpson’s amendment deleting clause 6, set out on Supplementary Order Paper 112, is out of order as being inconsistent with a previous decision of the committee.

The question was put that the amendment set out on Supplementary Order Paper 112 in the name of the Hon Scott Simpson to clause 7 be agreed to.

Dan Bidois’ amendment to delete clause 11, also set out on Supplementary Order Paper 113, is out of order as being inconsistent with a previous decision of the committee.

The question was put that the amendment set out on Supplementary Order Paper 143 in the name of Simeon Brown to clause 12 be agreed to.

The Hon Mark Mitchell’s amendment to replace section 62A(3)(b) in clause 18, set out on Supplementary Order Paper 147, is out of order as being inconsistent with a previous decision of the committee.

The question was put that the amendments set out on Supplementary Order Paper 147 in the name of the Hon Mark Mitchell to clause 18 be agreed to.