COVID-19 Response (Vaccinations) Legislation Bill

Members, we now come to Part 2, which is the debate on clauses 19 to 22 and Schedules 3 and 4, “Amendments to Employment Relations Act 2000”.

Thank you very much, Madam Chair. You know, it was Geoffrey Palmer in 1979 who said we were the “fastest lawmaker in the West”, and it was also said later on that MMP had changed that, but we’ve now discovered that that is not really the case. In just the last two hours, Parliament has given the Government enormous, sweeping new powers to impose all sorts of restrictions, and we’ve barely had a debate on it, actually. And I predict, as I said earlier, we will be back at some point, probably in 2022, to fix up this debacle of a situation. But we come now to Part 2 of the bill, and the major part that this deals with inserts Schedule 3A relating to the Employment Relations Act 2000. This whole COVID public health Act, by the way, is actually highly confusing to navigate—because we had the original Act passed last year, we’ve just passed another Act, literally last week, that has just come into force, and now we are passing another piece of legislation. It’s yet another example of legislation done very quickly in a very confusing way.

So we now have Schedule 3A relating to COVID-19 vaccinations, and I know my colleague Scott Simpson will want to get into this, our employment relations spokesperson. But the critical question here is in relation to personal grievances and legal proceedings in respect of dismissal. Subclause (7) of clause 3 of Schedule 3A says “nothing … prevents an employee whose employment agreement is terminated [under subclause (3)(a)] from bringing a personal grievance.” And so the question is this: business, we’re told by the Government, wants certainty and clarity about how all this will work and the requirement for people covered by mandates to go and get vaccinated. They want certainty and they want clarity, but the Government is preserving the ability for personal grievances to take place. Well, what sort of certainty and clarity does that provide? I would put it to the House, not a lot.

So the real question that we need an answer to from the Government is to why that provision has been put in this bill. I understand that my colleague, Scott Simpson, has a Supplementary Order Paper (SOP) to that effect—he’s nodding and confirming. So far, sadly, none of the SOPs put up by the Opposition in good faith have been accepted, including the very reasonable point that Parliament should have an opportunity to review this legislation, given we’re passing it in literally less than 24 hours. How about a select committee has a mandatory review of the legislation after it’s passed? Now, normally we do things the other way around. Normally, bills go to a committee, we ventilate the issues, and then we have a look at it. But how about we just do the—not unreasonable—thing where the Health Committee has a look at this massive new power, or powers, plural, that we are giving to the Government?

We raised a whole series of issues earlier on in this debate that have never really been addressed. The most obvious one is: do the powers the Government claim that they are giving themselves, to give effect to the traffic light framework, actually exist in the bill? The Minister claims they do. I think, in light of various High Court judgments, that is up for debate. The time for that debate is sadly gone because it’s all finished, apparently. The Government’s decided that they’ve given themselves the powers, and that’s all that we can say about that. Well, actually, the courts will have a say on that in the end, and maybe others will as well.

But we move on to Part 2. And, as I say, the critical question here is in relation to personal grievances and legal proceedings in respect of dismissals for people who have had the opportunity to get vaccinated: why is that still there? Thank you, Madam Chair.

I will take the opportunity early on in the debate to comment on the two Supplementary Order Papers that have been tabled by the Opposition and set out the Government’s reasons for opposing both.

The amendment proposed by Scott Simpson, and I’m not sure if this was his intention—the advice that I’ve received is that the amendment proposed by him would oust all personal grievances under the Employment Relations Act, not just those related to vaccinations. So I’m not sure that that’s his intention, but that is a relatively big change to be making by way of a last minute tabled amendment in the House. So the Government is opposed to that amendment.

In terms of the amendments put forward by Michael Woodhouse, similarly that’s a relatively broad provision that would mean that an employer can, effectively, require vaccination, without the use of the assessment tool. It means that there is no criteria then. It is completely at the employer’s discretion, which seems to be, again, another position from the National Party and not one that they’ve previously asserted, when in fact they’ve had their own leader saying that she’s opposed to vaccine mandates, except for those issued by the Government. So I’m not sure what the National Party’s position there is on this.

But, anyway, we think that if an employer is going to require vaccination, they should have to have a good public health ground for doing that. That’s what the tool is designed to do. So the Government is opposed to that amendment as well.

Thank you very much, Madam Chair. I want to talk a little bit, if I can, about Schedule 4 of Part 2, which introduces the new Schedule 3A into the Employment Relations Act 2000, and specifically clause 2 of that Schedule 3A.

It says, “Employee entitled to paid time off to be vaccinated.”, and subclause (1) says, “An employee is entitled to reasonable paid time off during their normal working hours to receive a dose of a COVID-19 vaccine if providing the time off would not unreasonably disrupt—(a) their employer’s business or (b) the performance of the employee’s employment duties.” Then subclause (2) says, “Before taking paid time off under subclause (1), the employee must notify their employers of—(a) the date and time on 1 or more days on which the employee intends to receive a dose of a COVID-19 vaccine; and (b) “the amount of time that the employee expects to take as paid time off in order …”—and so it goes on.

Now, what I want the Minister to explain is a couple of things. Number one: how did they get to the decision that it’s an employer whose job it is to pay for someone to go and get vaccinated? Supposedly, this is a public good; vaccination is to keep all New Zealanders safe. Why has the Government chosen to fund a public good by putting the cost on to someone that happens to be the employer? If you think about the perverse outcomes of it, for one thing, if somebody’s paid more, they’re, effectively, getting paid more to get vaccinated, even though a highly paid person or a low-paid person getting vaccinated is presumably of the same value to the rest of society. So that doesn’t make sense.

And, actually, we know the Labour Party is questioning itself on exactly this issue, because just last month, a new Labour member, one Terisa Ngobi, who I think is from somewhere north of Wellington—perhaps Mana—had legislation that said that employers would have to pay employees to go to their parent-teacher interviews. Perhaps the Minister’s not responsible for the Labour Party, and that’s probably a good thing sometimes, but the Labour Party has said that, actually, they wanted to withdraw that legislation. They put it into Parliament, then they pulled it out. And I guess there’s a reasonable question of why employers should be responsible for paying parents to go to parent-teacher interviews. It’s a good thing that you go to parent-teacher interviews, but that’s irrelevant.

💬 Hon Chris Hipkins: It’s also not in the bill.

Well, the Minister’s saying it’s not in the bill. Well, I mean, look, I know it’s not in the bill, and I know the Minister’s tired, but this is called an analogy. It’s a comparison, a parallel—it’s called context. This is a frequently used debating technique in New Zealand and other Parliaments around the world. The question is: why does it make sense to make employers pay to get people to get vaccinated—that’s the first question—if it’s a public good? And here’s something else: I talk to people who say that the difficulty is the vaccination centre closes at 3 o’clock, so people finish work at 5—maybe not Labour people; they finish at 4—and the vaccination centre is closed. Maybe it would be better if vaccination centres were open for people that worked different times.

But here’s the next issue: not only is there the question of why the employer has to pay but why put all this rigmarole—as I read out earlier, the employee has the right to take paid time off, but it has to be reasonable, and it can’t unreasonably disrupt the business. Then they have to notify that they’re going to take time off and which day and how much time, and the employer has to agree to that. And this is a problem that pervades the New Zealand economy. We spend more and more time negotiating and arguing and getting permission to do things, and not enough time getting on with it.

Now, considering the Government is always boasting that 91, 92 percent of eligible New Zealanders have already had a dose of the vaccine—we’re getting into the 80s, as a percentage, of people that are fully vaccinated already—why on earth are we putting in another complex rigmarole where you have to have a negotiation under law over whether or not you get vaccinated, when the truth is that most people would just say, “Look, you know, you need to get vaccinated. Run down the road and get it done—half an hour—come back.”? That would be a much more efficient way to do it, but instead, the Government is putting this huge bureaucratic rigmarole on to employers, and it’s the wrong place to put the costs, and Labour knows that because they’ve taken out other similar bills recently. And the question for the Minister is just: why? Why not just take that out of the bill, keep lives simple, and get the same result?

Thank you, Madam Chair. I appreciate Mr Simpson deferring because he is, of course, our workplace relations and safety spokesperson, but I could not let the comments from the Minister for COVID-19 Response pass in respect of his commentary on my tabled amendment around Schedule 3A. Now, his comments actually underscore the confusion—I’ll call it confusion; that’s the kindest thing I can say about the Government’s position—on what’s really going on here about whether or not the assessment tool that has just been passed in Part 1 is compulsory or optional. What we heard from the Minister for Workplace Relations and Safety, Michael Wood, was that it is a guide, a tool, that a business can use but is not compelled to use, and indeed in Part 1 that’s exactly what it says. It says that a business “may” use the assessment tool, and when questioned about that the Minister was kind of all over the place, particularly when compared with what he said on Newstalk ZB this morning. But I certainly interpreted his response as it’s an option, it’s a tool they can use, and they can use other tools. But what the Minister has just said is that it’s not an option, and not only is it not an option but if a business determines that there should be a vaccine mandate and hasn’t used the tool or hasn’t used it exactly in the way the Minister has described it—and we have to just go on the Minister’s words, because we still haven’t seen the Order in Council or any detail of what’s actually going to go into secondary legislation—

💬 Hon Member: Nothing there. It’s a straw man.

It is—it’s a straw man, another straw man. We still have to estimate, guess, what this mysterious secondary legislation might look like. Now we’ve got Minister Wood saying it’s optional, it’s assessment. We’ve got the bill saying that but Minister for COVID-19 Response has said, “No, no, you can still take a personal grievance if a business, complying with its obligations under the Health and Safety at Work Act and this piece of legislation, determines that their staff could need to be vaccinated and could be terminated as a consequence of not getting it.” They’re going to be subject to a personal grievance. So my tabled amendment is kind of belts and braces with what Michael Wood said, not in accordance with what Mr Hipkins said. But it simply says this, “For the avoidance of doubt, a personal grievance or legal proceeding cannot be taken under subclause (a) if it solely relates to an assessment by a PCBU that it was reasonable for workers to be vaccinated where they have not made that assessment in accordance with the assessment tool”. They could’ve used another tool.

💬 Hon Member: So they do have to use the assessment tool.

Well, it sounds like it. That’s pretty much what Mr Hipkins has just said, which is in marked contrast to what Mr Wood said. Mr Hipkins then went to say that somehow this position is at odds with the Leader of the Opposition in respect of vaccine mandates. Not true—another straw man argument from the Minister for COVID-19 Response. This party has been very clear about mandates. We support them at the border. We support them in healthcare. We support them in education. Everywhere else, we trust business. We trust business to do the right thing for its customers, for its stakeholders, and for its staff. That’s the difference between this side of the House and that side of the House—we trust business. And if they did, they would support this tabled amendment. I don’t personally think—and I don’t agree with the Minister’s assessment of what deleting clause 7(a) would do, but nevertheless, if we’re going to have this and we are going to lose it, then at least the Government should be putting its cards on the table, confirming, by supporting this tabled amendment, that the assessment tool is a guide only, it’s not compulsory, that businesses can be trusted to make those risk assessments even if they are different from the framework that eventually the Minister will bring into a regulation—use it as a guide, but trust business to do the right thing by its staff.

Thank you, Madam Chair. The situation with this part of the bill, Part 2, relates to situations for employers who are put in the position, having gone through either the health and safety assessment process that has been the tool that’s been available to date, or using the new tool that this legislation creates—for employers who find themselves in a position, having gone through all those options of looking at alternative work, redeployment, encouraging employees to get vaccinated, but at the point where none of those options are available and an employer is forced to terminate the employment of the employee who is unvaccinated, this part of the bill comes into effect. As David Seymour was saying, it creates several new burdens upon the employer, each of them costly, each of them adding to the lack of productivity that comes from a Government that really doesn’t understand business and thinks that businesses have an infinite capacity to pay. Well, that’s not the case; they don’t have an infinite capacity to pay. But this part of the legislation places further costs and obligations upon them.

Now, we’ve suggested, on this side of the committee, that if an employee who chooses for whatever reason not to be vaccinated and a termination is required, the employer, having gone through due diligence and process using either of the two options that are available now to them—if they go through that and they determine that the job needs to be terminated, then that should be the end of it. That should be the end of the risk and obligation to the employer, because it is unconscionable, really, that this piece of legislation specifically provides that further legal action will be available to that terminated employee by way of personal grievance.

But what the legislation doesn’t make clear is that if during that four-week stand-down period, and there’s some debate over what the term of that should be referred to—is it an entitlement; is it a paid leave; is it as a stand down, or whatever? But it’s going to cost the employer four weeks of leave. If the employee changes their mind partway through that process, what happens? And what happens is that the employer then has to look and see whether there has been any unreasonable impact on their business, and if there hasn’t been unreasonable impact on their business, and we don’t quite know what “unreasonable impact on their business” might be, then that employee gets to come back, having had potentially nearly four weeks of paid holiday, leave—we’ll call it what you will.

But there will be people who will try that on, for sure—almost certainly that will try that on, for sure. So we say, on this side of the committee, that, actually, once that process has been done, once it’s been completed, there shouldn’t be a further risk, a sword of Damocles, hanging over the head of the employer, relating to personal grievances. And if halfway through that process, an employee decides, “Well, I’m out of here and I want to resign.”, still, then, there is the potential for litigation relating to constructive dismissal. That’s also a risk to a business that I don’t think should be placed on the business going through this process.

So there are questions to be asked about what is reasonable and fair to employers who are actually trying to do the best, as they are statutorily required to do under the health and safety at work legislation. They are required to provide a safe working environment for other staff members, and if they have an unvaccinated member of staff, then they have to weigh the balance of the impact of that unvaccinated staff member’s role in their business against those that are vaccinated. And then they also have to take into account the obligations that they have to provide safety for people who they do business with—for their customers, for their stakeholders, for their suppliers, and for their contractors—and that too places a burden upon them.

We will speak further in this debate about some of the specifics of it, but I’m keen to know from the Minister why it is that he thinks that employers should have this further risk, sword of Damocles, hanging above their head when they’ve gone through a very careful, thorough process to determine that an unvaccinated employee should be exited from that business. Why, then, should they be further at risk of litigation, of further cost of drawn-out experiences that are not of their making?

Thank you, Madam Chair. I want to talk about clause 22, proposed new Schedule 3A. I want to start by saying, though, normally a bill in this House produces a fair degree of somnambulance from the wider electorate. This is not such a bill. This bill that is going through Parliament in lightning speed, faster than Sir Geoffrey Palmer even envisaged, accretes more power to this Government than any other bill I can think of that’s gone through this House in peace times. That is plain wrong. It’s egregious.

I want to talk about three things. I want to talk about the process, whether it relates here to traffic lights, whether it relates to vaccine mandates, or whether it’s in relation to the absolute specifics of proposed Schedule 3A and the employment provisions set out therein. I appreciate people back home, they will be awake, they will be listening, and they may say, “Well, process, that sounds a little bit boring.” But the reality is the process in this bill and in this part is the substance of the law. Because what this Government is doing is it’s not passing rules around traffic lights, around vaccine mandates, around employment provisions, for the most part. What it is doing is giving to capacious, capricious—

💬 David Seymour: That’s a good word.

—carpaccio-loving Ministers, David Seymour—it is giving them the powers to do whatever they want. It is giving them those powers on employment laws in this here clause. It’s not setting up the framework. It is an undemocratic skeleton, passed in record haste, and that’s plain wrong. That’s why I ask, actually, in relation to this—to the Minister over there—why don’t they actually put the substance in the bill? Is it because they’re too lazy? Is it because they are too capricious, actually?

💬 Hon Member: He’s auditioning for something.

Actually, they want it out for themselves. Well, the member over there would know full well what that feels like, so let’s not go there. Why not actually enact what’s in this or should be in this law rather than do it up in the Beehive late at night? Well, actually it won’t be late night; they don’t work that hard.

I want to also say this, in relation to proposed Schedule 3A that what we are talking about here, and also the wider issue around that traffic light. I say, personally, why do we need this? Actually, why do we need this? Why when we’re going higher in vaccinations, when we’re encouraging people to vaccinate—why don’t we simply set a date and open up? Be clear, we want to test, we want to vaccinate. There will be other precautions. But the downsides to this approach throughout this bill outweigh, I think, the upsides.

So we come to the precise nature of proposed Schedule 3A, around employment provisions. Of course, the reason those employment provisions are in this bill is because of the vaccine mandate and the reality of the vaccine mandate. I am sceptical about that. I’m not anti. I believe I’m pro-vaccination. I am sceptical about the mandate in terms of its workability, in terms of how divisive it will be for New Zealanders. OK, but I do say this: why in proposed Schedule 3A, when everything else seems to be there, Minister, don’t we have a use-by date for the mandate? Why is there no use-by date? Why is this an open-ended thing? An undemocratic bill that goes on for ever without any end-by dates. I ask the Minister: why don’t we have use-by dates on these things? Managed isolation and quarantine (MIQ), New Zealand has seen, has gone further and longer than it ever should have. I don’t want to see that in relation to these mandates or the employment provisions that we’ve got here in this proposed Schedule 3A.

We are giving the widest powers any Government in peace time has had to Ministers, and there’s no time limits. I say in relation to proposed Schedule 3A, not only that point around the time limits and why aren’t they there, but actually, OK, they’re putting in place a mandate. If they’re going to do that, as Scott Simpson has said here, why on earth would they, if they want to make it simple—and I come back to it, I think it’s going to be unworkable—why are they putting in place personal grievance provisions and allowing for that? Because, actually, it goes against the very logic of what they’re doing. So this is a bad bill, rushed through, it’s undemocratic, and we will have to come back and fix it, and that’s plain wrong.

Thank you, Madam Chair—very happy to take a call and address a few comments. I do understand some of them have been touched on by Minister Hipkins previously, but happy to address some related further questions. I do say I did enjoy some of the performance of the previous commentary, and I do also enjoy the study in contrasts that we sometimes see in this House, because what we’ve had over the course of this debate are accusations that the piece of legislation before the committee reaches too far into removing rights that New Zealanders might enjoy, that it might not be consistent with New Zealand Bill of Rights Act obligations. But the main critique that I’ve heard from speakers in the debate on Part 2 so far has actually been that those members wish us to oust existing employment rights that New Zealanders already enjoy. That is a fundamental line that we are not prepared to go down.

Now, in respect of the risk of legal risk for employers using the vaccination tool, this is exactly why the tool has been developed. We’ve had very clear feedback from employers—we worked with Business New Zealand, the Employers and Manufacturers Association, industry groups—that they wanted a clearer and simpler assessment tool that they can use. This particularly goes to the needs of smaller businesses who might not have the legal or HR resources that larger organisations have to conduct broader, more complex health and safety risk assessments. So the tool which we have clearly indicated and will be enabled through this piece of legislation will be a very simple tool for them to use.

In terms of the legal risk questions, there is a high degree of legal certainty that employers can have for using this tool. I do just draw members’ attention—it does go back to the previous part, but to new section 33AB, inserted by clause 13, which does state that employers have an “absolute discretion” to use this tool. So there is a strong degree of legal protection for employers who choose to utilise the tool—that is absolute discretion, which can’t be challenged.

But the point that members opposite are trying to make is that, then, that tool should be able to be used and there should be absolutely no protections or legal comeback for an employee if the tool is used in a way that is unreasonable, that breaches duties of consultation or good faith. That is what those members are arguing with their position that there should be an absolute ouster of any rights to personal grievance. That is a position that we do not hold to, that is not reasonable, that goes a step too far, and that is completely contradictory to the other assertions that they have made in this debate in terms of their position that the bill overreaches in its position around rights. So we do believe that we have struck a balance here.

I just make the point that with all of these questions, when this kind of legislation comes forward, in a situation like the one that we are dealing with, we do deal with a complex intersection of rights. Generally speaking, the answers to those questions are not simple. We need to work through what is reasonable. We need to work through what helps us to advance important public policy objectives that keep people safe. In this respect, we do believe that the appropriate balance to strike is to provide a simple tool to protect employers from challenge from using that tool but to have an ongoing, reasonable requirement that it is utilised in a reasonable way in accordance with the principles of good faith and other practice that, frankly, nearly all employers do adhere to, actually. But we don’t think it’s reasonable to strip legal rights away from employees about reasonable treatment as a tool is being put into place that could ultimately result in the end of their employment, which is a very serious matter indeed.

In respect of the four weeks’ notice period issue that was, I think, raised by the Hon Scott Simpson, look, I just point out here that the objective of what we are trying to achieve here is not to make it as simple as possible for people to be terminated from their employment. The objective here is to try and make sure that we provide tools that clarify this situation and that enable as many New Zealand workers as possible to be vaccinated. So the best way that I would think about the four-week notice period that is referred to in the schedules of this piece of legislation is that it effectively sets the clock ticking after the employer has made the decision, which they can make using either the tool—and I’ll be clear about this for the benefit of Mr Woodhouse—or using existing health and safety risk assessments, and there is absolutely nothing in the bill which requires the tool to be used. To be very clear—and I put it on the record again—employers can use the tool if they wish to, they can use existing health and safety risk assessments if they wish to, and they can use neither if they wish to. They don’t have to have to engage in any of these processes.

But if the employer has gone down that track and they’ve made a determination that certain work should be vaccinated, and they have then considered whether there are other options such as redeployment and come to the decision that that is not the case, there is, effectively, then, a clock that ticks down over a period of four weeks. Given the serious consequences of the loss of employment, we do think that the right thing to do is to say to that employee, “Here’s a last chance before you lose your job and your existing livelihood.”—that if you get vaccinated in this period and it’s reasonable for your employment to be maintained, then that is actually an outcome that we would want to see. Actually, for most employers, that will be the right outcome as well because, as we all know, particularly in a tight labour market, the challenges and the costs of then having to go through a recruitment process, get someone back in and trained up are probably going to be more burdensome than retaining that person in the first instance.

So that’s the outcome that we’re trying to achieve. It’s a nudge to get people vaccinated. If they do, why wouldn’t we want them to keep that job? I think that’s actually a good outcome, and that’s what we have built into the legislation.

Thank you very much, Madam Chair. I just want ask about clause 3 of the new Schedule 3A that Schedule 4 of this bill inserts into the Employment Relations Act 2000. In clause 3, it says, “The termination of an employment agreement for failure to comply with relevant duties or determination”. And then it then goes on to say this clause “applies to the following employees:”, so the people that can have their employment terminated. I note the Minister for Workplace Relations and Safety said the point is not to terminate people. I agree with that; it’s terminating the employment agreement that we’re trying to do. And that gives me real worry when the Minister’s rushing this kind of legislation about people’s rights through the House and he is talking about being the Terminator.

Anyway, I think it’s important that they’re terminating the employment agreement, not the person. And that can happen if they have a duty imposed under this Act not to carry out work unless they are vaccinated, required to undergo medical examination or testing for COVID 19, or otherwise permitted to perform the work under a COVID-19 order. Now, the thing is, in that clause where it says they’re required to undergo medical examination or testing, now, I just wonder—you know, people are going to potentially lose their job based on whether or not they were adequately tested. I asked the Minister for COVID 19 Response earlier. I said, “Look, what’s the story? Is this legislation about vaccination mandates and only vaccination or is it vax or test?” And the Minister got up and said, “Oh no, no, no. It’s OK. We’re going to make regulations. You’ll be able to be tested or vaccinated.” And we thought, well, that’s kind of a good thing, because you hear about 2 percent of all DHB workers quitting because they don’t want to be vaccinated. And I just—I guess we all have to repeat we’re in favour of vaccination, of course. But the question is: why do we agitate people to the nth degree and lose people from the workforce when actually a lot of them would probably be happy to get a test and be fine? But there’s issues around that.

So I asked the Minister in the Part 1 debate, what’s the story with the frequency of testing and what kind of testing? Because I think it would be fair to say that the Government has had a pretty difficult time around test methodologies. I remember back in February, I asked the Prime Minister if the Government was open to using saliva testing. She said, “No, no, no, no. We’re using PCR testing.” Obviously unaware that saliva testing is a way of collecting a sample to run through a PCR test. And then, of course, there’s been the long-running spat, as I call it, between Rako Science and the Ministry of Health over saliva testing. Then there’s this question of rapid antigen testing, which, if you live in a free society like, I don’t know, Australia, you can actually just go to a pharmacy and buy a COVID test off the shelf for a couple of bucks. I mean, it must be glorious freedom, living in Australia, being able to do that. Here, the Government has actually banned rapid antigen testing, and only a select number of approved importers are allowed to use rapid antigen testing. But this stuff’s really going to matter, because now whether or not you keep your job, in this legislation, appears to depend on whether you’ve fulfilled a test requirement. If you’re somebody who doesn’t want to be vaccinated, you have got to get tested instead. And do you keep your job or not? This stuff’s quite important, and the legislation is suspiciously silent.

I asked the Minister in the Part 1 debate—you know, there’s lots of definitions in the interpretation section, the glossary, of this law. The glossary of this law says, you know, that there’s lots of definitions around vaccination, but there’s no definitions of what it means to be tested. God knows what a medical examination for COVID-19 means. But there’s certainly no definition of what sort of frequency of testing, what sort of testing technology, and who does the testing. Can it be a point-of-care test where it’s done here right in front of you or would it have to be a test where you send the test away to a laboratory and they do the examination and give you the results? And then there’s the question: are you testing for antigens; i.e., the actual COVID-19 virus in your body? Or are you testing for antibodies? Because a world-leading, very impressive New Zealand firm, experts out of the University of Auckland—great place I might add—called Orbis, well, they’ve been developing antibody testing or immunity testing and they’ve been snubbed by the Government as well. So, really, the Minister needs to say if you can get sacked for not being tested, where in this legislation does it describe what testing actually means? Because at the moment it appears to be nowhere, and I think people would love some clarity on what the Government means by “testing”.

Thank you, Madam Chair. I have a problem here with my mask. Very tricky business; it won’t come out. Oh, there it goes.

Right, this is my first opportunity to speak on this bill, and so I just wanted to say some broader comments on that. I think all New Zealanders have been struggling—particularly those living in Auckland and Waikato—for a very long period of lockdown in the city and that’s put a lot of pressure on families, put a lot of pressure on kids missing out on school for a long period of time, and, obviously, for the relatively small group of society, small-business owners in retail and hospitality, it has been devastating for many of them. So my thoughts are with them. We share the frustration that we’ve had a Government that has spent the first half of this year telling us that the rest of the world needs vaccines more than us and there’s no rush and we’ve got all the time in the world. After that long period of complacency, we now come towards the last four months of the year in lockdown, struggling and racing around, chasing our tail.

Then this legislation is just one of many that we’ve had before the House, bringing in rules under extreme urgency to try and deal with elements of it. Now, as it happens, New Zealanders have responded very quickly to the call for vaccination once the—

CHAIRPERSON (Hon Jacqui Dean): Order! Can I invite the member to come very quickly to Part 2?

Yes, thank you. But, like I say, this is my first speech on the topic and I’m just sort of warming into it.

CHAIRPERSON (Hon Jacqui Dean): Order! Order! I think the member would like to come immediately to Part 2.

Yes. Well, OK. The fundamental question that I have in relation to Part 2 is—and the Minister, we just—

💬 David Seymour: Where’s the aggressive intent?

Yeah, well, that’s right. The Minister has just said in response to the changed suggestions from our side of the House—in terms of Supplementary Order Papers in relation to the personal grievance issues and in relation to the timing of the amount of notice given to employers—that it’s complex. It’s not a simple matter. I’m quoting from him that “We’ve got to get the balance right between the needs of employees and employers, and we’ve got to operate in a reasonable nature and work out what is reasonable and what is good faith.” All these things are quite complicated, and that raises the obvious question: given that this is quite a difficult area of public policy, why are we ramming it through in two hours on a Wednesday morning and expecting to get a good result?

So why is it that a Government that’s had more than a year to figure out and predict that we’re going to have a Delta outbreak in this country—we’re going to have to deal with these sorts of issues. Why is it that having had so long to prepare, we find ourselves in a situation that we’re trying to get through difficult, complex pieces of legislation in relation to how to regulate the employment of our country, deal with personal grievances, find a balance between what is right between employers and employees—why is it that we’re rushing it through under extreme urgency and not taking the time to actually have a select committee process and understand it? So that is my fundamental question to this group.

If we step back and ask ourselves, having got vaccinated—we’re nearly 90 percent; over 90 percent of first doses. Our simple view is that we don’t need any of this at all any more. We can move on to a stage where the vaccination rates are high, we don’t need traffic lights, we need to just open up and accept that people have had the opportunity to get vaccinated—most of them have—and let’s get back to a semblance of normality. So that’s why we oppose the bill, full stop.

But we do appreciate that there are employers that are looking for some measure of certainty on the legalities of the employment relations, which is what we’re talking about here in Part 2. So what we’re doing is we’re dealing with this law in a very fast method through the House. We’re going to get it wrong. We haven’t had a chance to debate it properly. The Minister has said—only 10 minutes ago in the House—that “this is a difficult issue, it needs to be balanced, it’s complex, but we’re not going to provide the time to deal with it properly in this Parliament.” I want him to justify that, and I, secondly, want to know what the purpose of this whole exercise is. If it is the purpose, as he says, to provide a measure of certainty to employers, then why on earth would you leave such a massive area of uncertainty with everyone having to have the potential of a personal grievance?

Thank you very much, Madam Chair. I’m very grateful for a chance for a call, and it might just be a short one, but I think it’s an important point in relation to Part 2, and when I say “short call”, I mean only five minutes.

I do have a question, which is a very serious one, for the Minister in the chair, and it relates to the fact that we’ve got an Employment Relations Act amendment in this part of the bill, but I’d like to know about workers who are not covered by the Employment Relations Act. The Minister may or may not know what I am talking about, and I’ll happily explain in a minute, but there is at least one colleague of his on the other side of the Chamber actually present now who, hopefully, will know exactly what I’m talking about, and I refer to the Minister of Defence—and I acknowledge the Hon Peeni Henare is noting these words, as we speak.

The Employment Relations Act does not apply to members of the New Zealand Defence Force (NZDF), so I would like to know how the traffic light system, to use its name in common parlance, is going to apply to the activities and the operations of the New Zealand Defence Force in a way that is contemplated by this legislation, given that Part 2 will not apply to those members. My first question is whether, for the Defence Act or other legislation that has an equivalent effect on the employment rights—and I use the term loosely—of our soldiers, sailors, and air force personnel, there will be an equivalent amendment—

💬 David Seymour: What about submariners?

—because I don’t see it in there. I’m asked, “What about submariners?” It’s a question I often ask myself, Mr Seymour, and others ask it, too. So the question then is whether there will be an equivalent amendment to deal with the rights that are being afforded to other New Zealanders, and I’d use, for example, the leave, or rather the notice period—paid—for four weeks. Other members have sort of talked about the relative merits of that, and I don’t intend to rehearse that ground. But paid time off for vaccinations—and, again, we can have a view on whether that’s necessary or not. But suffice to say that in sticking up for the good men and women of the New Zealand Defence Force and those workers, albeit they’re not employees in the sense of the Employment Relations Act, what is being provided, if anything, for them in relation to this legislation?

On a related note, I’d like the Minister to turn his mind to and give a bit more detail about how this relates to civilian contractors and others who would access New Zealand Defence Force bases, notwithstanding that they’re not covered by the exemption to the Employment Relations Act, and also just how that interacts with the intention of Part 1. I don’t want to go into that, and I know I’m not allowed to, Madam Chair, but I would note there is a general flavour in the legislation whereby national security, public safety, and crisis response are matters of public interest, as defined.

So I’ll leave my contribution there. But I do very much hope for a response from the Minister along those lines regarding NZDF personnel and their rights and responsibilities in relation to vaccination mandates and other areas that are covered by and contemplated by this, albeit not specifically in the bill.

Thank you, Madam Chair. I’ve got some quite specific questions around new Schedule 3A in Schedule 4. We heard earlier from the Hon Scott Simpson about the period of gardening leave, or whatever we refer to it as: the four weeks if a termination is to be undertaken of the employee’s job, as Mr Seymour’s pointed out.

But I want to just go back to the part right before that, where we talk about, “the employer must give the employee reasonable written notice”. I’m keen to know from the Minister what he believes “reasonable written notice” is—whether that’s two weeks, three weeks, four weeks—because then we also have the situation where, if the employee decides to get vaccinated, if we are assuming he does decide to get vaccinated, then he or she would need another three weeks on top of that. So we might be talking about at least a minimum of, say, five weeks—maybe six, possibly more. Now, if that employee then decides not to get vaccinated, there is, of course, the four weeks’ paid leave. But if you go back to that original waiting for them to get vaccinated, if a company has decided that it is risky for that person to be on the premises, because they’re in close contact with vulnerable people or they’re in close contact with other people working with them and they decide that it’s a risk—I assume the Minister can answer this—I assume that, then, the business would put them on some sort of paid leave, to manage the risk in their business to their employees and also people coming on to their premises. So then the cost to the employer is not only the four weeks paid out at the very end upon termination but also, possibly, the five or six weeks prior to that, making the total cost to the employer much greater. So I’m keen to know what “reasonable written notice” is, and what he expects that to be.

Furthermore, I also want to know whether or not, if an employee makes it very clear right from the get-go that they do not want to be vaccinated—that it is not going to happen under any circumstances—that notice period to get vaccinated can be waived. It is a significant cost on the employer, if they’re trying to keep their people in their business safe and their customers safe. If that person says, “Not on your nelly! It’s not happening,” has the Minister thought about that period being able to be waived? Because it will be a significant cost on the employer.

I want to just go on to talk just a little bit more. I’m keen to hear the answer to those questions, but I’m also keen to talk a little bit more about the fact that there hasn’t been a provision for waiving personal grievances. I hold the early childhood portfolio. When we saw the health order for early childhood centres, the very first thing that we saw was the very litigious nature of some people in that sector—actually, it was Sue Grey and others—writing to everyone in the sector, all the teachers, saying, “Don’t quit, because you won’t get any Work and Income payment. Here’s what you need to do: you need to hold out. You need to bring a personal grievance.”

We saw that, so I expect, especially with people who are very resistant to being vaccinated, that they will be very ripe for the picking when it comes to these litigious people like Sue Grey, who will target them and say, “Hey, it’s really important that you follow these steps and bring a personal grievance.” It’s happened before; we saw it. I’ve seen the letter that these people sent to the early childhood teachers, and this will happen again. We know that.

The Minister pointed out himself just earlier that small to medium sized enterprises don’t have the human resources capacity or the legal capabilities or the funds to be able to fund these types of actions against them, and they are really scared of that. So having a provision, and the amendment that Scott Simpson’s brought is a very good one that I’ll support, takes that risk off there. If the intent of the bill—if we go back to the intent of the bill—is to “make vaccination a more prominent part of New Zealand’s COVID-19 response”, then we want to encourage these businesses to take these steps, not discourage them because they are really scared of the fact that there will be, potentially, a personal grievance taken against them. We’ve seen it already with the health orders, and it will happen again.

So my point to the Minister is I understand his arguments, but my question to him is: doesn’t he think that it would be better to encourage more businesses to take up the tool and go through the process to try to encourage people to be vaccinated than to put them off at the thought of the huge cost that will be put upon them, potentially, and that most likely will happen if there is the ability for personal grievances to be brought?

Thank you, Madam Chair. I have to say that I’ve noted in earlier parts of this committee that sometimes it’s the questions that the Minister doesn’t answer that are the most revealing. You haven’t answered any of the questions I’ve asked yet about the definition of testing which is absent from the bill; haven’t answered any questions about what the public policy basis for making employers pay for people to go and get vaccinated when it’s a public interest; haven’t answered any of the questions that I’ve asked about why they’re putting this rigmarole of negotiating a specific time to get off when most people in most circumstances would just say, “Yeah take half an hour, go do it.”, when actually the Government makes much of the fact that 91, 92 percent of New Zealanders who are eligible are vaccinated anyway; haven’t answered any of those questions. I just put that as a reminder. I know that the two Ministers have been swapping in and out, so if Michael Wood, the Minister for Workplace Relations and Safety, does want to get up and answer any of those questions, he’ll have an opportunity shortly—and also one more.

There’s a question about what is going to happen with this dismissal order. Because what it sounds like is that, basically, you can say that you don’t want to get vaccinated, take four weeks’ pay, do what you like. Somebody said it’s effectively gardening leave, and I thought about that. I thought: what if they put on a vaccine mandate at Palmers Garden Centre? Then you wouldn’t be able to go and it could ruin that concept! But, none the less, you’d get four weeks off. The problem that you’re going to have is that people are going to take advantage of it. You have no doubt that there will be people who are organised and will take advantage of this. They’ll take their four weeks and say, “Oh, you know what? I’ve read some new stuff, I’ve decided to go back.” Then there’s the question of how the employer decides if that person is going to unreasonably disrupt their business.

It seems to me that if the over-arching goal of this legislation is to provide businesses with clarity, which is what the Government said, might it have just been a bit easier to say, “Here is the date by which mandates come into place if people choose to make them” and your employment is terminated on that date? Because, instead, the Minister said the clock starts ticking. Well, you basically get four weeks off. That’s the issue that I think people might ask, “Well, how is this not gameable?”.

There’s also a couple of other issues around how a person is supposed to get a new employee in an incredibly tight labour market. That’s not strictly just a problem with this legislation, but it is going to be exceedingly challenging for a lot of businesses. And then here’s the other question. You might say, OK, well, how is a business going to pay for that? Because I think part of the issue with the Prime Minister not having visited Auckland in any meaningful way, more in an Instagram way than anything else, is that she doesn’t appreciate the kind of pressure that businesses are under. I talk to people up there in Auckland and I visited a whole lot of them—people are under enormous pressure.

💬 Dr Duncan Webb: Back to the bill!

You can tell when Labour are getting a bit antsy, they say “Talk to the bill, talk to the bill.” I don’t think they understand the effects of their bill on real people. They don’t like being reminded of it, but here we go. You’re, effectively, saying that you’re going to lose an employee and you’ve got to pay for an extra four weeks when your business is already broke. I was given one example from the real world. An accountant I was talking to last week, he’s got a hairdresser on their books, that hairdresser went into the lockdown on 18 August with $100,000 cash reserves—very, very hard-fought and hard-won, built up since the last lockdown decimated them—and they’ve now got nothing, and they’re now potentially going to have to pay out a worker for a month even though they’re not going to do any work.

Now, interestingly, I was discussing this with a backbench Labour MP—I talk to all sorts of people—and they were under the impression that actually a worker would just continue to work and serve out the four weeks, so there wouldn’t be any real loss. The Minister’s got up and said, “Yes, the clock is ticking. So I think it would be really helpful for the Minister to get up and say—does he envisage that when someone gets their four weeks to be vaccinated, do they actually keep reporting for duty and doing their work unvaccinated during that period then leave, or do they, effectively, take gardening leave? It might not be such an idle joke that they will find Palmers has a vaccine mandate and they can’t take gardening leave. Are they going to be at work or not for that four weeks?

Thank you, Madam Chair. Look, happy to respond to a number of the questions that have been raised over the last 20 minutes or so of the debate, noting that some of these have been touched on already. But I’ll just go through sequentially the members who have spoken recently.

Colleague David Seymour’s raised a couple of queries there. The first is around the testing requirement, and I do believe that this has been addressed in the debate to date. He gave a number of comments providing his views on the appropriate methodologies around testing. To be very clear, the provisions that he’s talking about in Part 2 relate through to those people who might have testing requirements put in place via orders that are captured within Part 1 of the piece of legislation. And, as has been described in this debate at various points, those orders will be made by the relevant Minister. They will receive advice from the Director-General of Health and others. And the reason that testing requirements go in orders rather than in primary legislation actually kind of goes to one of the points that the member raises—that we might actually want to have some flexibility there as new technologies come on stream, as our understanding of testing methodologies develops. It might well be the case, as in fact it is, under the current required testing order, that we want to vary up the frequency of testing depending on risk levels, the kind of workforce, the nature of their work—that kind of thing. So those things are captured in the orders that are issued under Part 1, and that’s what he’s referring to, in respect of the provisions that are in Part 2.

The member, I think, wrongly characterises the right that is provided in this piece of legislation for paid time off to go and receive a vaccination as being rigid in some way. I think that is absolutely wrong. There is no specific requirement here that it’s done in a certain way. There is no new entitlement to a kind of leave that is created. We simply lift and use a well-understood provision from the Employment Relations Act, that’s used in respect of other things at the moment, that the employer must provide, in a reasonable way, the ability for that employee to get vaccinated on paid time so long as it doesn’t unreasonably disrupt their business operations. That is a form of wording in a system that employers are very familiar with that exists in the Employment Relations Act at the moment.

I think the member’s partly right. It won’t necessarily have wide application and the vast majority of employers are enabling that to happen, which is good. But I’m aware of some who haven’t, and I think that that is a reasonable requirement of our shared ambition to make it as easy as possible for employees to go and get their vaccination. I would certainly characterise that new provision as being very flexible. It’s about reasonableness rather than the Government prescribing exactly how it happens.

To Mr Goldsmith’s contribution, it was a relatively general contribution. He made some points, which is fair enough in the course of this debate, but I didn’t particularly discern any questions that he wanted me to address. Well, he made a particular point about him having a view around the select committee process, which is a reasonable point for him to make, but it doesn’t actually go to the substance of this part of the bill.

Mr Penk, on the other hand, did have a number of particular questions that he raised. He raised a number of points, and in particular he raised them in respect of how this might apply given the specific nature of employment, engagement in the defence sector, which, for the most part, does sit outside of the provisions of the Employment Relations Act. So, I mean, to some extent, he answers his own question there in that the provisions of this part of the bill are about the Employment Relations Act. Ipso facto, they don’t apply to people who are not covered by the Employment Relations Act, and some people in defence, therefore, will not be covered by these provisions. I do understand, however, that vaccination is already a requirement for baseline service requirements across defence. So their normal processes including discharges will continue to apply there.

In respect to the second part of his question, it was, effectively, the question about what is Defence’s ability to make decisions about contractors who might be coming on to their bases or sites who are unvaccinated. The answer there is no different to any other employer that where there is a commercial arrangement that an employer, in fact any other private individual, has, they’re able to make reasonable rules about who might come on to their property, including bases. It’s not an issue that goes to Part 2 and the Employment Relations Act reforms here, but they are able to make reasonable decisions there, and I understand the Chief of Defence Force, in fact, already has done that—

💬 Hon Peeni Henare: That’s right.

—in defence areas. And I’m just hearing that affirmed from the Minister of Defence. So good to have the clarity there.

Erica Stanford asked a number of questions as well. She inquired about what is reasonable written notice. This is another one of those areas where we think it is important to have a requirement that is about the employer behaving in a reasonable way rather than to be completely prescriptive about what applies there. But I think we would all understand, in a common-sense term, what it means to be reasonable. It’s about making sure that someone is able to get that information that this process is under way, that they have sufficient time to read that, to understand it, to seek advice, and to provide a reasonable response. These are well-understood concepts within the broader field of employment law, and I don’t think that any reasonable employers will have any particular problems adhering to them.

To the question about whether employers can put people on paid leave, sort of separate to the specific provisions around the four-week notice period, the answer is that if an employer wishes to do that, they can of course do that. In fact, I’m sure that some already are doing that out there, and that’s entirely at their discretion.

The member also asked what the scenario is if an employee says they’ve just got no willingness to get vaccinated at all. Effectively, can that four-week period be shortened, I think was the thrust of the question there. The answer is no, that that is a four-week period that is defined in the legislation. It’s a four-week period. It’s very clearly set out in the legislation. It’s not shortened under the provisions of this bill. But the more detailed answer I would give there, and it goes back to a comment I made in my previous contribution, is that the purpose of the operation of this facility is that there is a chance for this employee to have a really good think about this issue and about whether it is really worth the candle to lose their job and their livelihoods because of an unwillingness to get vaccinated.

We have some form to draw on here. We have had a number of mandates which have been introduced by the Government through the process of orders, and what we have found in those cases is that, actually, it’s that period of a final few weeks, which is often the period—I think about, for example, the orders that were made in respect of the maritime border, which mainly applied to port workers, and we had quite a large group of port workers at the beginning of that process who were hesitant around getting vaccinated. But we found in that period of the last few weeks, when it was becoming more imminent, it became real that, “Boy, by this date, potentially my job goes.” And in addition to that, the employer unions involved got active, provided support, advice, dealt with concerns, helped that person to make a good decision around vaccination. We actually found that period of the last few weeks got a lot of those people across the line, and in those sectors we actually had relatively small pockets of people who then fell foul of the requirements, and that’s certainly how we see that four-week period playing out.

I’ll pick up on Mr Seymour’s point here. He makes the point quite reasonably that in a tight labour market, we don’t want to be losing people. So if we can employ a facility like this, that, with a little bit of work all round, helps people to get to the right decision and maintain their employment, that’s good for that employee and it’s actually good for the employer as well.

The final point I’ll make comes back to quite a lengthy discussion that we’ve had over the course of debate on this part. It’s the balance in terms of legal certainty. Erica Stanford raised this point, and, effectively, what she and her colleagues on her side of the House are arguing—and let’s just be really clear about this—is the ouster of all rights that employees might have to contest whether they have been treated reasonably over the very serious matter of whether they lose their employment. We do think that that goes a step far, and I think it contradicts many of the other arguments that we’ve heard from that side of the House in the course of debate on this bill as well.

But what I will say is that the tool that has been created and has been socialised quite widely is very simple. It has subjective measures in place. The decision to actually use the tool is legally protected, and employers who use it in a reasonable way have a very high degree of legal certainty. That’s been affirmed by a number of legal commentators. We’ve had good commentary from Business New Zealand about how much easier it’s going to be to use, and we think that strikes the right balance. But to remove every single right that an employee might have, if they were treated unreasonably, if they didn’t get reasonable notice of what was happening, if they didn’t get a chance to respond to it, if there was not a reasonable process to consider redeployment and they lose their jobs, that side of the House is saying that that person should have no recourse at all. And, on this side of the House, we just do not think that that is a reasonable position or a reasonable balance to strike.

So with that, some of this debate has come up previously—I think I’ve covered off most of the key points that have been raised so far. Thank you.

Oh, thank you, Mr Chair. I appreciate Minister Wood’s detailed response to the many questions that have been raised on Part 2 of the bill. Not all of them I agree with in terms of the quality or relevance, but I think he has gone deeply into some of the questions, thought carefully about the answers that he gave, and I think that adds a little gravitas to a terrible process.

I want to just touch on that last point, because the question of the removal of grievance rights more generally in the Employment Relations Act was raised by the Hon Chris Hipkins in an earlier call in response to the tabled amendment by the Hon Scott Simpson, somehow saying that that amendment would override all of Part 9 of the Employment Relations Act. Now, I don’t believe that’s the case. Mr Simpson will seek a call to explain his actions in that regard. But there has been, I think, an amendment to that.

I want to touch on, briefly, the Minister’s response to my tabled amendment because in his reply, he made it absolutely clear, despite Mr Hipkins clouding the argument, that the assessment tool is optional. The assessment tool is not required to be used; business is free not to use it as long as they have serious consideration of what the risk obligations they have under health and safety legislation are. And if that is the case, then the Minister should have no concerns about my tabled amendment, which is a belts-and-braces amendment that says if a business, complying in all other respects, does not use that assessment tool, a personal grievance can’t be taken. Now, he’s indicated, or at least Mr Hipkins did, that the Government will not be supporting my tabled amendment, which further throws doubt about those statements.

So for the record, and for any employment lawyers that might be listening out there who represent business, let me state what the Minister has said so that that can be used in any potential grievance process. And if the Minister is not being accurately reflected by my words, he can take a call and refute them. But what we have been told is that not using the assessment tool as set out in Schedule 3 will not be a problem, and therefore should not, if all other obligations from the employer in respect of the schedule are met, give rise to a valid personal grievance—the key word there is “valid”. Nobody can stop any employee who feels aggrieved for whatever reason from taking a grievance—

💬 Hon Michael Wood: That’s what you’re proposing.

—but it’s not valid.

💬 Hon Michael Wood: That’s Mr Simpson’s amendment.

No, no, that’s not what I’m proposing, Minister. What I’m proposing is what the Minister has said, and that is that the assessment tool is optional. If the assessment tool is optional, it can’t be grounds for a personal grievance if a business chooses not to use it. And those were the Minister’s words—it’s the bill’s words, because the words “may not”, “must”, are in the schedule. So I put it on the record now that that is what the Minister said, and if the Minister doesn’t think that’s an accurate reflection of his view, then he can take a call.

My last point in respect of Part 2 relates to the—if I may find it; here we are, Schedule 1, inserting new Part 3, clause 9(a) and (b). We’ve had a discussion through the committee of the whole House about what should be in primary legislation, what should be in secondary legislation, and what shouldn’t be in legislation at all, because it could be a valid guideline. Now, quite inexplicably—I just think these guys just love passing legislation under urgency or without proper process, because we’ve got in this clause the requirement for the documents that can be issued by the Ministry of Health “before commencement day must on and from commencement day be treated as COVID-19 vaccination certificates”. And then they list them—(a) My Vaccine Pass: and (b) International Travel Vaccination Certificate.”—as if that’s it, as if forever and all time these will be the only two documents that we need.

Well, we don’t know what’s around the corner. We don’t know what further requirements might be imposed by overseas jurisdictions on New Zealanders travelling. We don’t know what other variations of a vaccine pass might be necessary, but if there are, we’re going to have to come back here and change it. Now, I’m a big fan of due process, good process, but, actually, this is a case, I think, where these documents could have actually been scheduled in secondary legislation, not primary. And I would like the Minister to explain why that hasn’t happened. Because this is actually why secondary legislation is important, because it is much more nimble than primary. I’d like an explanation for that.

Much of Mr Woodhouse’s comments have gone back and forth. He may not agree with the responses that have been given but I believe they have been responded to. I just want to respond briefly to the final point he has made, because I can give a specific and quick response to that. Part 9 of Schedule 1, which is new Part 3 inserted into Schedule 1 of the COVID Act, that’s a transitional provision, and so the vaccine pass and the international travel vaccination certificate are considered to be valid for that period. But into the future, the appropriate form will be captured in orders. So I think we are largely agreeing with him there, that that is the appropriate way to carry it forward.

Thank you, Mr Chair. The committee can decide whether or not I’m wanting to make a valid contribution or just have five minutes with my mask off. Look, I want to actually speak to Part 2. I’m looking at clause 22, which is inserting New Schedule 3A. It’s possible that the Minister has addressed some of these, but I think we need to get absolute clarity.

The first is picking up on a little bit of what the Hon Michael Woodhouse said, and it’s around businesses who choose to not use the tool. Basically, to put it in plain English, can businesses, employers, choose not to use the tool without fine and without penalty?

💬 Hon Michael Wood: Yes. Yes.

And if yes is the answer, then in a strange way, what is the whole point of doing this? It becomes a little bit strange.

Second is the use of the tool itself. We’re dealing here, Minister, with a rather—I think he would agree—complex issue, which is going to be quickly and simply defined through a tool. There’s a dissonance there that so much reliance has been put on a tool, and I’m wondering what analysis has been done and what surety can the Minister give the committee that this tool is going to be able to address every situation sufficiently.

I ask that because, worryingly, to me, he used the word “subjectively”—the Minister, that is—earlier to describe the tool. The thing about things which are subjective is that they’re open up to multiple interpretations. Why that becomes even more important in relation to Part 2 is the tabled amendment of my friend and colleague Scott Simpson, which is trying to close off a real problem here that we could end up in a very litigious environment between employee and employer that is an incredible cost. So, again, how much reliance does he have on the tool—and I might just point to other tools the Government has put forward; I’m thinking about heating one’s home and how complex and disastrous that was—to give us confidence there?

I’m interested, too, if he might—and I think David Seymour and others have been touching on this—tell us why there are not testing options as well. It’s great and good for people to be vaccinated—go vaccination; jolly decent—but actually there are other options, and New Zealand should, you would think, be following this. Why has that not been incorporated into this New Schedule 3A that an employee can go through the nuisance, if you will, of daily testing as required? And that’s particularly around elements of proportionalism, which, again, this Part 2 and new schedule is not addressing?

And these are the final two questions. When we are talking about the ending of a person’s livelihood, their ability to feed their families, pay their mortgage, why would we not give an option—vaccination or testing. So, then, the final question’s a simple one: what analysis, if any, in relation to the provisions in New Schedule 3A, have investigated the advantage of the higher vaccination rates, beyond, potentially, 91 percent, to actually the enormous damage that’s going to be done to those particular New Zealanders?

So, again, I want to be really clear: vaccination is a good thing, but, actually, the proportionate consequences to those New Zealanders is huge; it’s absolutely massive. What analysis has been done to show that that enormous cost to those Kiwis is going to see a significant advantage to the health aspects of New Zealanders? Because my suspicion, for what it’s worth, Minister, is that the health benefits of further vaccinations will be wanted, but the health benefits are almost negligible in comparison to the absolute pain which is going to be caused to those New Zealanders losing their jobs. So, I know, an array of questions there, and, if I might, I’ll just leave that to the Minister.

We are getting to the point of the debate where members are filling time and not actually reading the legislation at its most basic level. If I can just point very specifically—and I want to address the question that the member raised here, because it would have required about 20 seconds of reading—new section 33AB(1) makes it very clear that the vaccination tool can be utilised to come to a conclusion that either vaccination or undergoing a medical examination or testing for COVID-19 can be required. So we specifically dealt with that question; it’s there in black and white in the legislation.

Thank you, Mr Chair. I appreciate you giving me the call, because I want to just pick up on a point that my colleague the Hon Michael Woodhouse made in relation to my tabled amendment relating to Schedule 4, clause 3(7), actually. Now, as is often the case when legislation is being rushed through the House under urgency without the benefit of scrutiny at select committee or the input from stakeholders and others who would want to make a contribution to this legislation, sometimes small errors can occur. In fact, we actually had a Minister’s Supplementary Order Paper before the debate on this bill even commenced, and so that gives us the sense of how rushed and quick this is.

But earlier today, I did table an amendment to provide for cases where termination has occurred, either using the tool or using the risk assessment option through the primary legislation, or indeed some other method. But we think, on this side of the House, that once a process has been undertaken by an employer and a decision to terminate employment has been made, that should be the end of it, and we think that the employer should no longer have to face the risk of pending litigation.

In my first amendment, I probably made it a bit wide, and that would have, as the Minister rightly pointed out, given cause to provide for no redress for personal grievance for any matter under the principal Act. That was not my intention. So what I’ve done is I’ve withdrawn that amendment and replaced it with an amended one that simply says that, “For the avoidance of doubt, an employee is not entitled to bring a personal grievance or other legal proceedings in respect of a dismissal under this Schedule.”, which I think clarifies it appropriately, makes it sufficiently narrow, makes it very clear that my amendment would limit the ability to prevent a legal action that results from a termination in this case.

Now, I think it’s important that we understand that with nearly 91 percent of New Zealanders vaccinated, we’re actually probably dealing with a relatively small number of people who have chosen, for whatever reason, to remain unvaccinated. Now, some of those people will, in the course of the next few weeks—I hope and I implore them to—take advice from trusted friends or professional advisers and get vaccinated, because on this side of the House we are encouraging vaccination. But there will remain a small number of people who choose, as I say, for whatever reason, not to be vaccinated.

Now, those of us that have been receiving emails and correspondence and representations from some of those people know that they are increasingly strident in their view, in their determination to remain unvaccinated. That’s not a position that I agree with or members on this side of the House agree with, but that is a reality of the situation that I think the Government and we face as a society. So I’m convinced, absolutely, that there will be employees who go through this process and do have their employment terminated and, not to put too fine a point on it, they will want to make an issue of this. They will want to bring as much heat and attention and focus to their situation as they possibly can, and they will use every tool that is available to them to make life difficult for their employer, if they can, and they find themselves in a position where their employment has been terminated under this piece of legislation.

So I think it’s only fair and proper and right that those employers who are putting the best interests of their other staff members, of their customers, of the wider community in balance against the rights and obligations of an unvaccinated employee—I think they shouldn’t then have to suffer the potential sword of Damocles hanging above their head over further expensive, protracted, drawn-out litigation. So I’m suggesting to the committee that they adopt my amendment.

Point of order, Mr Chair. Thank you, Mr Chair. This is slightly unconventional but please give me a moment. I would like to seek the leave of the committee for the committee to return briefly to debating Part 1 in order that an amendment be made after this part is concluded.

The amendment is one that I’ve given to the Clerk but he can’t accept without the leave of the committee. It would, basically, allow employers to use information that they’ve got about their employees’ vaccination status for the purpose of advertising that their business is 100 percent vaccinated or for advertising and communicating with potential replacement employees. Because my interpretation and some quite high level advice I’ve had about proposed Section 34B is that at present every shop that says that they are 100 percent vaccinated, having acquired that information from their staff, will be breaking the law. Anyone who says to a prospective employee “There’s a vacancy because the person that was doing the job won’t be vaccinated.” would be breaking the law.

So I’ll give the Government a moment to think about it. But it might be worth, unless they are very, very sure, at least giving the leave of the committee to return to debating Part 1 for the specific purpose of this amendment, which I’ve just tabled with the Clerk, and also allowing the Clerk to accept that amendment when we return to that particular part, if the leave is given. I understand that the House in committee are masters of their own destiny, and there’s no reason under the Standing Orders that they couldn’t do it. But whether or not they do will be a decision of the Government. If the Government wants an opportunity to resolve this problem with advertising vaccine status, then they can allow it right now.

OK. I’m simply going to put the leave. The leave is sought for that purpose? Is there any objection? There is objection. Who wants a call?

I move, That the question be now put.

Thank you, Mr Speaker. I’m very happy to stand and take a call on the COVID-19 Response (Vaccinations) Legislation Bill. I just want to reiterate some of the earlier comments. I just think that bringing this bill to the House like this and laying it on employers that are already under enormous financial pressure and stress in relation to ongoing lockdowns and the measures that had to be taken to try and contain and fight COVID-19 and then, of course, the Delta variant—which they’ve done in many cases, recognising that there is a responsibility on all of us to do the best that we can. However, they have carried a much heavier load than any of us sitting in this House because when we go into lockdowns, we all still have the peace of mind and the security in the back of our minds that we’re still going to get paid in a fortnight and that, actually, we’ve got a bit of job security.

Small-business owners don’t have that. They’re worrying about making payroll. They’re worried about how they’re going to make up for the revenue that they’re losing. They’re worried about their staff. They’re worried about their customers or their clients and about how they’re going to continue to provide the products that they have done. So what we need to be doing as a Parliament is focus on the best measures and steps that we can take to support them and make sure that they keep their heads above water, make sure that they can continue to employ and keep people in work, and make sure that they can continue to provide the services and make the products that they have been and to support and prop up this country and our GDP, because there’s no way to pay for a health system and there’s no way to pay for a police service or for our teachers if we haven’t got those businesses in the productive part of the country out there, supported and working.

So what does this Government do? It brings a bill to this House, which we’re debating now, that tells an employer—and I didn’t believe this when I first saw the announcement. People were asking, and I said, “No, that can’t be right. Government support will have to kick in.”, but it hasn’t. The fact is that now, if employers have an employee who is not vaccinated and who is still going through the process of deciding whether or not they will be vaccinated, they can take a month’s leave and the employer has to pay for that.

As we try to emerge out of one of the longest lockdowns that the world’s seen and as we try to get back on our feet, what does the Government do? The Government gives them another upper cut—small to medium sized businesses get another upper cut—and it says, “You’re under strain and pressure in terms of trying to get your businesses back up and going again, trying to get that revenue going, and trying to get people back to work, and, by the way, now you’re going to have to pay for a month someone that isn’t actually working inside your business.” It’s a ridiculous notion. It just shows how disconnected the Government is, because the Minister knows that he’s going to get paid in a fortnight. The Minister’s got some job security. The taxpayer—the small-business owner that’s out there working hard to pay their taxes—they’re the ones that are fronting this place, and, actually, we should be looking after them. We should be acknowledging them. We should be acknowledging the importance that they play in our recovery as we come out of this long lockdown, trying to fight Delta.

The one question that hasn’t been answered—and if the Minister has answered it, I apologise, because I want to acknowledge, as my colleague Michael Woodhouse said, that he is making an honest effort of actually standing and addressing the issues that are being raised on this side of the Chamber. But the one issue that Michael Woodhouse raised—and I agree with him, because I heard the Minister say this in his opening statements to the House—is that there were large companies in New Zealand, and I don’t know whether it was Countdown or whether it was The Warehouse. I don’t remember. But he said that they’re already using current health and safety law in the legislation to put plans in place, and he said that that’s great and that they can do that. They’ve got the option. They don’t have to use this legislation.

So if that’s the case, that means that the legislation contains within it the ability for an employee to take action against the employer, and the Government says that “Although we’re laying this new requirement on the employer, we still want to keep those protections in place for the employee, who can choose to take a month off while they debate whether or not they want to get vaccinated, and the employer is going to have to pay them.” David Seymour has come to the committee and asked permission to debate Part 1 again, because he—[Time expired]

I move, That the question be now put.

The question is that the Hon Michael Wood’s amendments to Schedule 4 set out on Supplementary Order Paper 100 be agreed to.

The Hon Scott Simpson’s tabled amendment to Schedule 4 to amend new clause 3(7) relating to prohibiting personal grievances is out of order as being inconsistent with a previous decision of the committee.

The question is that the Hon Michael Woodhouse’s tabled amendment to Schedule 4, to insert new clause 3(7)(c) relating to prohibiting personal grievances when the assessment tool is not used, be agreed to.