Employment Relations (Extended Time for Personal Grievance for Sexual Harassment) Amendment Bill

Members, we come now to the Employment Relations (Extended Time for Personal Grievance for Sexual Harassment) Amendment Bill. We begin with the debate on clause 1, with clause 1 being the title of the bill. The question is that clause 1 stand part.

Point of order, Madam Chairperson. I move that the debate be heard as one part.

💬 Hon Member: One question.

Oh, that the question should be considered as one part.

Leave is sought for that purpose. Is there any objection? There appears to be none. The question is that clauses 1 to 8 and the Schedule stand part.

Madam Chair, if I may, I begin with my thanks to Mr Goldsmith. Just a few remarks to start the discussion: the object of this bill is to extend the time in which a person may make a personal grievance claim in respect of sexual harassment from 90 days to a year, so it extends the time in which the person can make the claim. The reason for doing this is because of the nature of sexual harassment. It is the sort of offence that can floor a person. It can render them unable to act. It can put them in such a position that they really don’t feel capable of facing, in this instance, their employer, so it can take longer than 90 days to have the capacity to make a complaint of sexual harassment. That is why we have asked for the time to be extended to one year.

Now, the bill has come back from the select committee virtually unchanged in its essence, so that central premise of the bill remains as is—the extension from 90 days to a whole year. The changes that members will see in the bill as it has come back from the committee are matters of clarification, or matters where they are ensuring that the bill stacks up with other parts of the Employment Relations Act, just to make sure that there’s no confusion. So the original premise of the bill is unamended by the select committee, but there are matters of clarification. However, I’m happy to speak to those matters of clarification and the matters where we’re linking the bill up with other parts of the Act.

But just before I sit down, I do just want to take this opportunity to thank the submitters on the bill, and the officials from the Ministry of Business, Innovation and Employment for their extensive knowledge and expertise. My thanks go to the Education and Workforce Committee, ably chaired by Marja Lubeck; my intern from Victoria University of Wellington, Rowan Selwood-Isles, who helped with this bill; and lawyer Zoë Lawton, who raised the matter in the first place. And one slightly unusual last thank-you—that’s to my dad, who rang me today to say, “Deborah, your bill is up today, isn’t it?”, and I said, “Well, yes, it is.” He said, “I’ll be watching.” So, Dad, thank you for your support.

No pressure!

Thank you, Madam Chair, and to Deborah Russell, who has brought in this bill, and to her parents. One can always rely on the support of one’s parents, hopefully, and that’s good to know.

I suppose the basic question that we had—the National Party supports this bill, focused, as it is, on extending the period for raising personal grievances only to matters which relate to sexual harassment. People might ask, “Well, why do you limit it to 90 days in the first place?”, and that is because the vast majority of businesses in this country are small businesses. They have maybe five or three or eight or 12 employees, and the uncertainty that’s created by having an extended period where general personal grievances can be held and then raised with the employers 11 months later would create a very difficult situation, particularly for small businesses. So that’s why it’s limited to 90 days. But the argument put forward by the member in this bill is that sexual harassment is of a different category because of the impact that it has on those who are affected by it and the fact that it sometimes takes quite a long period of time for people to come to terms with it, in so far as they would raise it.

There’s no question that sexual harassment has been for a very long time and will continue to be and it is currently an issue that can have enormous impact on the lives of workers up and down the country, and many of us will have experienced it or would have known people who have experienced it, and so we were supportive of that.

But the thing that I want to clarify from the member responsible for the bill is this. I want to clarify on the record here in Hansard that it is clearly her intention that it is only personal grievances relating to sexual harassment that will be given this extended period and not other sorts of personal grievances, and that by doing this, she isn’t sort of trying to create some sort of loophole for the system that a personal grievance that may have a tangential element of it that may—well, I suppose that’s the question I have for her: how is it that she is going to ensure that this isn’t used as a way to extend virtually all personal grievances to 12 months, which would have a very different impact on the working environment, particularly for those small businesses that are affected? So the first question is: can she reassure the committee that it is her intention that this should be focused purely on those matters which are particularly sexual harassment claims?

Madam Chair, thank you. I want to take a call on this because I wanted to ask you about quite similar things to my friend across the floor. I want to know a little bit more about what the submitters said in terms of their experience of sexual harassment and that necessary time.

In my practice I had, often, young women who were not necessarily identifying this behaviour as being as problematic as it was and minimising it, and that does tend to be a feature of it. I note that people could take such matters under the Human Rights Act. Can you tell me about the actual experiences that you’ve heard about that prompted—sorry, Madam Chair—the experiences that the member Dr Russell heard about that made her consider it appropriate to look at a different time frame, and what kinds of people may access this system, and, particularly, the Employment Relations Authority rather than the Human Rights Commission as a result.

Thank you, Madam Chair. It’s a pleasure to ask the member in charge of this bill a few questions about it at this committee stage. I was delighted to be part of the select committee that considered this bill and has now reported it back to the House with, as the member has said, not a great deal of amendment but, I would say from the select committee side, some valuable clarifications in terms of the way that this bill works.

The matters that I really wanted to ask the member in charge about are the key changes that did come up at the Education and Workforce Committee. There’s a clear part where it’s made very clear that this bill is not retrospective, so it only has effect from when it comes into force in relation to the longer period, which is, obviously, 90 days to one year.

I wanted to also just note, as some members have around the Chamber, that this bill would make sexual harassment complaint time frames consistent in the Human Rights Commission jurisdiction and also in the employment relations jurisdiction. I just wanted to ask her about the benefits, perhaps, of that simplicity in relation to human rights claims and employment relations claims, and how that might make the choice of jurisdiction in which to take a sexual harassment claim somewhat simpler by not having that longer period of time in one jurisdiction. I think that, in the past, it might have been the case that people were perhaps forced to choose the area with the longer jurisdiction.

I also wanted to just touch on something that was said by a colleague across the Chamber in relation to the narrow nature of this bill, and how the select committee did, in fact, look at making sure that this only relates to personal grievances for sexual harassment and not other personal grievances. It was something specifically that was looked at in select committee: whether it would be possible to subsequently extend additional claims. Those of us who’ve practiced in employment law and discrimination law know that often it’s not just one grievance that people bring up; it’s perhaps a few different grievances. So the work that the select committee did and the clarification which is now in the bill before the committee is to ensure that it is a narrow bill that affects the particular grievance of sexual harassment and the clarity that brings. So I’d be grateful if the member could elucidate some thoughts on that.

If I may, I’ll just deal with the three speakers and respond to each of them in turn. So thank you for the questions.

The Hon Paul Goldsmith talked about the uncertainty for small employers and small business. I agree that that 90-day period does raise a period of uncertainty for employers, and that can be very difficult for small businesses in particular. The cheap answer to this, we’ll say, is don’t engage in sexual harassment then—all right? So that’s the cheap answer.

I think the rather better answer is to say that this does create an opportunity to ensure that those businesses do have good policies and practices in place. It’s always possible, if an employee comes with a claim of sexual harassment, to actually deal with it properly. So that would obviate the need for a grievance in the first place, and, of course, if the employer themselves is committing the sexual harassment, I’m not quite sure why they should be relieved of responsibility for that after a mere 90 days.

So I see an opportunity sitting in there as well for small business, because it should, I hope, prompt the need to put in place good policies and to put in place good workplace procedures, so that it does actually assist businesses to develop those really good workplaces. So there is that.

Mr Goldsmith spoke of—and my colleague Camilla Belich also mentioned this—whether or not the extension of time related only to sexual harassment, or whether someone could perhaps take the one-year period to make a claim of sexual harassment and then use that to pull other matters into contention as well. As Ms Belich said, that was discussed by the Education and Workforce Committee, and it has been explicitly dealt with in new section 114(7) in clause 6 of the bill, where there have been a couple of clauses introduced which very specifically name section 103(1)(d) of the Employment Relations Act. Now, that is the clause that specifies that someone may bring a claim of sexual harassment. So you’ll see there’s subclause (7)(a) and (b) and it says that for a personal grievance under section 103(1)(d), it’s a period of one year, and in respect of any other personal grievance, the claim has to be brought within 90 days. So that is dealt with.

Though I agree it’s a very important matter to deal with, when I said that this bill is very narrow, it is indeed very narrow, and I think we need to keep it that way. There are certainly other areas that could be considered for an extended time, but perhaps in the subject of a separate bill rather than doing it in this particular bill.

💬 Chris Bishop: What areas in particular?

Well, for example, perhaps we might consider bullying or something like that. But I would like it be considered under a separate bill where the issues could be discussed separately.

My colleague Helen White wanted to know about some of the submissions on the bill. I haven’t brought them with me, unfortunately, or I could have read some of them to you, though we have traversed them at some stages. But I was rereading some of them today. They came from a law blog set up by Zoë Lawton, called under the influence of the—oh, I can’t remember what it’s called.

💬 Helen White: The Me Too movement.

Yeah, the Me Too movement. I was going to say the “What, me?” movement, but it’s the Me Too movement—thank you. Under that, a number of the submitters there talked about the experiences they’d had in law firms of senior employees pressuring them of them being pressured to drink and to engage in various activities which then led to sexual harassment, and the impact that it had on their careers. However, I think the one that I read just today was a different one. It came in as an anonymous submission to the committee and was accepted, and it was from a person who had worked in the hospitality industry for a long time.

In the hospitality industry, employees—waiters, wait staff, bar staff—are routinely subjected to sexual harassment from customers, so not just from their employers and not just from their fellow employees but from customers who think it’s quite OK to pat a waitress’ bottom or to pinch her or to make a sexual suggestion. Frankly, people should be do their jobs without having to be sexually harassed, and she talked of the impact that that had had on her. So this is going to be an interesting problem, too, or it should be an interesting problem within the hospitality industry, as to how to ensure that customers behave appropriately as well.

Thank you—we’ve addressed the idea of retrospectivity, but Ms Belich wanted to have a little bit of a think about the consistency with the Human Rights Act. Under the Human Rights Act, of course, a person can bring a claim for gender discrimination. Sexual harassment is one of those things sitting in that space, and it is a 365-day period. So, yes, this 365-day period does now align with the procedures that are available under the Human Rights Act. I think it is good to align the two, and, again, it does raise the issue as to whether there should be other matters that should be extended out to this 365-day period to enable that consistency.

I think it is useful that an employee can go to the most obvious solution for an employee in respect of sexual harassment, and that is the Employment Relations Act, because that’s the context in which it has occurred. I don’t know that I had that intention with this bill, but it turns out to be one of the happy accidents that make it a better bill for that matter. Thank you, Madam Chair.

Thank you, Madam Chair. Firstly, I just want to offer my congratulations to Dr Deborah Russell for what is a good bill, and it was a good process and it was good being on the select committee that scrutinised the bill.

I just want to talk about retrospectivity as well, and ask the member in charge of the bill if she thinks there might be a potential grey area or problem in the way that we have set out this retrospectivity clause, where we say that the sexual harassment action had to have occurred after the commencement of this bill, or it had to come to the notice of the person who was enduring the sexual harassment. Now, the reason I ask this is because there is a potential situation where someone has been sexually harassed for some time before the commencement of this bill and then again after the commencement of this bill, and that person could argue that it only came to their attention because they only realised that it was sexual harassment after the commencement of the bill to bring into line so that they could then work around the retrospectivity clause.

Look, it may happen or it may not happen, but I’m just wanting to know whether or not the member in charge of the bill had thought about that, and whether or not, taking that a step further, it’s potentially something for the employer to use against the person to say, “Well, actually, the victim is claiming that this happened before. Therefore, she knew it was before, therefore it is retrospective and, therefore, the claim can’t be brought.”, and potentially use that as a way out. Has the member thought about that? Is there a potential grey area, and are there potential problems? Has she thought that through, and how does she think that that might play out?

Thank you, Madam Chair. I thank her for the questions. They’re really good ones, and they’re interesting issues to grapple with. There’s a couple of sorts of retrospectivity that the member Erica Stanford has sort of covered in what she’s asked. The first is where there is a pattern of behaviour—so, a series of events, with some of them occurring before the date of the commencement of this bill, and some of them occurring afterwards. Now, in terms of sexual harassment—claiming and then proving sexual harassment—if there was an incident that happened after the commencement of the bill, then that would constitute sexual harassment. The previous events before the commencement of the bill might be evidence to support the claim, but the claim itself comes from the very last incident of sexual harassment. So that’s the first sort.

But the next sort of retrospectivity that might be problematic is where the sexual harassment comes to the notice of a person. This is interesting, because we’ve talked about how with sexual harassment, it might sometimes be the case that a person only realises later that it was sexual harassment, and it’s contemplated in the 365-day nature of this that the pattern really does matter. That’s where one off-colour joke probably doesn’t matter too much, but an off-colour joke every day possibly does, or an off-colour joke consistently all the time might constitute sexual harassment of a person—you know, it’s that sort of thing. The pattern of behaviour does matter, and we’ve talked about how someone can be subject to a pattern of behaviour that they only realise with the passage of time constitutes sexual harassment.

But that’s not what coming to the notice of a person means—all right? It’s not that someone has a road to Damascus moment and suddenly realises that it was sexual harassment. Coming to the notice of a person is when a person is made aware that this sexual harassment has been occurring. I know that that sounds a little odd, but think about it this way. It turns out that a person’s fellow employees have been sending emails to each other on an ongoing basis discussing the size of her breasts, the nature of the clothes she’s wearing, or whether or not she would be good in bed—all those sorts of things that are sexual harassment. The employee might know that she’s terribly uncomfortable in the workplace, but not really know why until later it comes to her notice that this series of emails was being passed about.

So that’s what coming to the notice of a person means. It doesn’t mean that they suddenly understand it; it means that the actual events are brought to their attention. So that’s the sort of retrospectivity there.

In that case, they’ve got to make the complaint within 365 days of when it came to their notice. So that would be perhaps—and I can see how this might happen, and it will be for the Employment Relations Authority to sort it out, I suppose. But I can see how it could be the case that a person might have been deeply uncomfortable at work and didn’t understand what was going on, couldn’t quite cope, left, and, a while later, one of her fellow employees—ex-employees now—contacted her and said, “Did you know that there was this series of emails?” That’s coming to their notice, and that would constitute the sexual harassment that sort of kicked off a series of events. But I’m sure that that’s the sort of thing—if that’s what’s intended—that coming to the notice of a person means.

So you can see the two different sorts of retrospectivity and how the bill tries to deal with them. Just in terms of the retrospectivity too, we’ve tried to be very, very careful with specifying in the Schedule to the Act as to exactly when the Act takes effect. So it is sexual harassment that occurs or is brought to the notice of a person after the commencement of the Act.

I just want to follow up on that. The act that has to happen, or the sexual harassment act that needs to occur after the bill has come into force—if it is a relatively minor offence and then the worker, say, quits, but all of the sexual harassment up until the point that the bill has passed was very serious, is it the same, bar for that one act after the bill has passed?

What I’m trying to explain is that if the act is relatively minor, is it exactly the same test as to whether or not that is sexual harassment, or will they take into account all of the events prior to the bill commencing, which may have been far more serious? Or is it just the same test as it always is to ascertain whether or not that one act did constitute sexual harassment, or will there be a different test for that, given that there were a lot more serious acts going on beforehand?

Thank you, Madam Chair. That will, in part, be something for the Employment Relations Authority to sort out, based on their previous judgments that they’ve made around what constitutes sexual harassment and what doesn’t. But I can understand the point the member is making, which is: serious event, serious event, serious event, serious event—

💬 Erica Stanford: Bill passes.

—the bill passes, not so serious event, out of the door. That one not so serious event perhaps might not be so serious in itself, but, as we’ve discussed previously—and I can’t tell how the Employment Relations Authority will take this. But the previous events can constitute a pattern of behaviour which would go to the evidence to support that that last event was itself an act of sexual harassment as well. However, that would also be a matter for the Employment Relations Authority to sort out.

Clauses 1 to 8 and the Schedule agreed to.

Bill to be reported without amendment.

House resumed.