Holidays (Bereavement Leave for Miscarriage) Amendment Bill (No 2)

Members, the House is in committee on the Holidays (Bereavement Leave for Miscarriage) Amendment Bill (No 2). A reminder that the committee stage is a chance for an examination of the detail of the bill and the effect of its provisions. It is also an opportunity for engaging in discussion with the member by taking short calls and asking questions. Members, we come first to the debate on clause 1. This is the debate on the title.

I seek leave for all provisions to be taken as one debate.

Leave is sought for that purpose. Is there any objection? There appears to be none. Therefore, the question is that clauses 1 to 5 stand part.

Thank you very much, Mr Chair. Currently, the bereavement leave provisions in the Holidays Act 2003 are ambiguous in their application to miscarriage. Employees are presently entitled to three days’ bereavement leave on the death of a child, but it is unclear whether this would also apply when a pregnancy ends in miscarriage or in stillbirth. This ambiguity means that an employee’s entitlement is left at the discretion of the employer, and in some families’ cases, they have not been able to take much-needed time to grieve. My bill makes a very simple change. It allows families certainty that they have a legal right to access bereavement leave following a miscarriage or stillbirth. This bill removes the ambiguity by making it clear, at the unplanned end of a pregnancy by miscarriage or stillbirth, that this constitutes grounds for bereavement leave, and that the duration of the leave should be in line with the entitlement after other deaths within the immediate family. I encourage members now for the opportunity to ask further questions or raise issues in relation to the member’s bill.

Thank you, Mr Chair. This is my first opportunity to have a chance to speak on this bill, and can I just acknowledge Ginny Andersen for bringing something so important to the House. Whilst it’s not a large bill, the impact of this bill is huge. For so many women out there, this will mean so much, and not just for women, actually, but for their entire families, their spouses, and all those that may be involved. So thank you for bringing this to the House.

I just have a quick question. I wasn’t actually on the Education and Workforce Committee when we had any of the submitters come before the committee, and so I just had a question. I note that the wording around—you took out the wording “confirmed pregnancy”, and so I’m just wondering if you would be able to talk us through the underlying reasons for this change with regard to the mother’s knowledge of the pregnancy. It would be really great to hear a bit more about that.

Thank you very much to the member. Yes, indeed, there was a recommendation in relation to clause 4(2) to clarify that proof of a pregnancy would not be required for an employee to take bereavement leave, and this relates to existing provisions. It was noted that the duty of good faith that’s found in section 4 of the Employment Relations Act would still apply to any application for bereavement leave, and this duty requires employees and employers to behave in a way that fosters a responsive and communicative employment relationship. So those same principles of a good employment relationship would apply in the same instance.

Mr Chair, could I please also take the opportunity to congratulate Team New Zealand on winning the first race while we’ve been talking.

Tēnā koe e te Mana o te Whare. And also congratulations to Ginny Andersen for being at the committee stage of her very important member’s bill here.

I was indeed a member of the Education and Workforce Committee in the 52nd Parliament that heard 37 submissions on this bill, and it is fair to say that all submissions were either in all-round support for this bill or of the intent of it. We did hear some very heartfelt personal submissions from people on circumstances they had to deal with, like, as my colleague mentioned before, having to deal with ambiguity in the law and also with the discretion between an employer and an employee or negotiating some leave during a very difficult period in their lives.

We made some changes in the select committee, one of them being the wording “confirmed”, as my colleague Jo Luxton previously mentioned. I’d like to ask the member in the chair a little bit further with regards to this particular issue, because some people might argue that removing any proof of a miscarriage from this particular bill could leave a gap. I would argue it’s not, but I would like to hear perhaps what your thoughts are on the existing obligations between employers and employees that would deal with such an issue. Thank you.

Thank you very much for the question. This was raised a couple of times during submissions and wider commentary on the bill. It’s interesting that currently when an employee would apply for bereavement leave, it’s unlikely that they would be required to show a death certificate. So on the same basis the bill does not propose that proof is required.

I guess I would just like to note, and further to the member’s point, that while this bill makes quite a small technical change in the legislation, what’s been very interesting is the wider discussion around women’s reproductive rights and the conversation in and around childbirth, bereavement, miscarriage. So many women have come forward and used it as an opportunity to tell their own stories and ones that have just not been told before. I think that’s partly associated with the stigma and the shame, quite often tied wrongly to miscarriage and stillbirth. Part of that, I think, exists in our previous laws that have made onerous requirements to actually have time to grieve. So while this change enables both men and women or partners to have time to grieve, I think it also has facilitated a wider conversation around something that’s previously been, I guess, somewhat left in the shadows.

Thank you, Mr Chair. It’s a pleasure to rise in support of this bill. I commend the member for bringing it before the House. I think it does provide a very important clarification that it brings to the law surrounding bereavement leave entitlements. It makes it clear that the unplanned end of a pregnancy by miscarriage or stillbirth constitutes grounds for bereavement leave for the mother and her partner or spouse, and that that duration should be three days. But can the member just clarify what other people may qualify for that leave?

Thank you very much to the member. Yes, the definition of the relationship requirement was extended. The initial drafting of the bill that I undertook hadn’t fully contemplated the reach of where it would go to. So that has been extended, and it is understood that it’s right that parents planning to adopt a child and parents having a baby through surrogacy should also be entitled to bereavement leave on the unplanned end of a relevant pregnancy, and it seemed only right and fair that that right should be extended to those parents and that they would be no different to a biological parent in being able to access this right.

Thank you, Mr Chair. I just have a question for the member in the chair this afternoon, Ginny Andersen, to talk about the commencement date. Now, I understand from the bill that it is the day after which it receives Royal assent, but I wonder if the member has given any consideration to extending that out for any length of time, given that this is going to be another cost on business.

The reason I ask that is because this afternoon I’ve just heard four hotels on the West Coast have now been extended into hibernation. That means we’ve got 40-, 50-odd staff that are now without jobs. We’ve got businesses that can’t afford to stay open, and adding this extra cost on to those businesses at this particular time—I have no problem with the intent of the bill, to support women who have miscarriage. I’ve been in that position myself, and I know that it does take time to recover. But at this time, with the strain on business, I just wonder if you have given consideration to pushing out the commencement date. Thank you.

Thank you very much to the member Maureen Pugh. No, there hasn’t been a proposal to change that commencement date, and, interestingly, through the employers who submitted and those who engaged with the process, many of those give bereavement leave as of now, even though it’s not a legal requirement. So what we did find as part of that good employment relationship between an employee and employer was that this more often than not does occur in a good working relationship. There were only rare occasions where they were not being accessed. So all this bill would do is give people the certainty that if they’d been through a miscarriage, they had the ability to apply.

From the examples that we’d had—I’ll go back to that initial section 4 of the Employment Relations Act—there is still that good faith working arrangement. I would see that to be working in a way that an employer would want a good, reliable employee who is in a good, fit mental and physical state to be able to continue at their duties, and that may mean taking some time for bereavement leave. While that might be a short-term cost for a small business at an incredibly difficult time in New Zealand’s history, the long-term benefits of having a steadfast and loyal employee would pay off in the long term.

I thank the member for her response. I just point out to the member, though, that when this bill was being debated and the submissions were being heard, we were in a very different place in this country. Businesses were in a very different place in this country. The strain that has gone on them over the last six months has been quite incredible, and I think, as a matter of good faith, it would be incumbent on us, as a Parliament, to take note of that stress that is on business, and perhaps push out the commencement date.

Thank you very much to the member Maureen Pugh and I take on board fully your comments in relation to small business. I acknowledge readily that there has been an inordinate amount of pressure that the Government has responded to. And I know for a fact that through the wage subsidy, in rounds one, two, three, and four, those businesses continue to receive support in the areas they need to. Saying that, many have been in a position of a really dire time. I’d like to balance those concerns of small businesses with those of families in New Zealand—with those mums and dads and families who have gone through lockdown, who have had babies, who have had miscarriages in one of the most unprecedented times in New Zealand’s history. So while I appreciate, yes, businesses are under pressure, so are many New Zealanders in their day-to-day lives, and it’s important to have the compassion and the understanding so that our people can grieve and get on with life in a timely way. And what is good for people is also good for business.

In light of this debate being reframed in terms of cost, could the member enlighten the committee, in her view, what cost it would cause on those mothers that are unable to, by right, have access to bereavement leave if this bill was pushed out, as members opposite are suggesting?

Thank you very much to the member. Look, I think it’s very difficult to quantify that in a financial sense, and I think that goes to the heart of the debate. The submissions we received from those women and the partners of those women who were unable to take leave were that they had long-term psychological trauma as a result of having to go back to work on a day and come back from work and clear out the nursery and fold away the clothes, and then go back to work the next day. I had stories of women who had had a miscarriage while travelling home on the train, and who had to continue to go to work that day and had to go back home on the train. The embarrassment, the trauma, and the pain that that caused was, I guess, unable to be quantified.

So I believe that that balance, taking into consideration humans and the way that we need to be compassionate in order to be a good, fully functioning society, shows through this bill that we want to have an economy that’s not just turning over a profit. That bit reflects the full wellbeing of our people.

Thank you, Mr Chair. I just want to take a short call on the bill and again commend the member for bringing this bill. I was actually the spokesperson for women in the last Parliament when we actually went through the process of the—I wasn’t part of the committee and the submissions, but when we were trying to put the finalisation of the bill together. There was just a couple of points, and the member did clarify one before, around surrogate parents, but I just wanted to clarify and make sure that the public—you know, it’s been a while. The first reading version of the bill used the term “spouse”, but it excluded the possibility that the father was no longer the spouse. So just reconfirming that, really, rather than a question.

The second thing is we did spend a bit of time clarifying that the parents who experienced the end of a pregnancy due to an abortion were not eligible for bereavement leave. So I just thought, given that we’re in a new Parliament, the 53rd Parliament, it’s just worth clarifying those two things, because there was a lot of work across parties actually spent getting those couple of things right.

Thank you very much to the member. Interestingly, as well as COVID happening since this bill received its first reading in the House, we’ve also passed legislation specific to abortion and removing that from the Crimes Act. So I think it’s well raised by the member that we clarify that this bill excludes abortion. I, as the member in charge of the bill, was very keen for this not to become tied into the wider abortion debate, which has subsequently taken place. The recommendation also that we received was that it would be clear that abortions are excluded from the bill and that it was specific to miscarriage and to stillbirth. We sought, and I was very happy to receive, support from all parties within this House on the basis that we would focus on the areas of the law that we could change in agreement, and I’m pleased to be able to continue to do that.

Thank you, Mr Chair. Just one more clarification from me, if I may. Really pleased to note the select committee clarification that it should apply to both known and unknown pregnancies, but I just wondered if the member could flesh out: is there any onus of proof on parents who have suffered this kind of loss?

No, I do not think there is a requirement—I think we covered that at the beginning. So New Zealand is different, in the sense—I think we’re one of the first countries, from the research I’ve undertaken, to actually pass legislation to enable bereavement leave to be taken for miscarriage. Most other countries enable it for stillbirth, which is 20 weeks-plus, or in some countries more. So we’re one of the very few countries in the world, from what I can understand, that would enable bereavement leave to be taken for miscarriage. That in itself raises some medical difficulties, because quite often a woman can have a miscarriage without even knowing initially she was pregnant, and it’s only at the point of miscarriage that it’s realised that there was a pregnancy. So the requirement in the bill is that there’s no need to have proof of pregnancy, such as a doctor’s note or a pregnancy test or such thing. It’ll be clear as a result of having a miscarriage that you were pregnant, and that is what is required. But there is no requirement to have written proof to prove to your employer that you were pregnant.

Clauses 1 to 5 agreed to.

House resumed.

Madam Speaker, the committee has considered the Holidays (Bereavement Leave for Miscarriage) Amendment Bill (No 2) and reports it without amendment. I move, That the report be adopted.

Motion agreed to.

Report adopted.