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

Members, the House has resolved to recommit the Employment Relations (Extended Time for Personal Grievance for Sexual Harassment) Amendment Bill to consider Supplementary Order Paper (SOP) 331 in the name of Marja Lubeck. Members, this is a limited debate, and all contributions must be relevant to the content of that amendment. The question is that Marja Lubeck’s amendment to the Schedule set out on SOP 331 be agreed to.

Thank you, Mr Chair. An issue was discovered with the Employment Relations (Extended Time for Personal Grievance for Sexual Harassment) Amendment Bill, a member’s bill recently transferred from the Hon Dr Deborah Russell to me. The advice, as we just heard, was to recommit the bill to the committee of the whole House to address that particular issue that was identified. Recommittal is conventionally used for particular and narrow purposes, where repeating the whole committee of the whole House process would be inappropriate.

The objective of the bill: to extend the time in which a person may make a personal grievance claim in respect of sexual harassment from 90 days to one year. The reasons for this have been well traversed. But I will repeat the opening remarks of the Hon Dr Deborah Russell at the first reading of this bill, which were: “This is a simple bill but it deals with a complex and difficult matter of sexual harassment.” So, while it was a simple bill to deal with a real problem in the workplace, the lack of transitional provisions to ensure that there’s no uncertainty with the changes that this bill makes were not picked up during the select committee process. It was noticed by officials before the bill was presented for its third reading.

So that brings me to Supplementary Order Paper (SOP) 331. The issue that SOP 331 deals with is that the bill has no transitional provisions related to clauses 4 and 5. Clauses 4 and 5 of the bill amend provisions of the Employment Relations Act, sections 54 and 65. Those are sections that set out what must be contained in the collective agreement and in an individual employment agreement.

The bill requires the new 12-month time limit for personal grievances relating to sexual harassment to be mentioned in the agreement, as well as the existing 90-day time limit for all other types of personal grievance. But without these transitional provisions, the bill creates uncertainty whether every existing employment agreement must be updated to reflect the updated law or whether the new law only applies to new agreements concluded after the member’s bill commences. That could have generated uncertainty about what employers needed to do to comply with the new law, and that is particularly important because there are some hefty penalties that can be invoked when section 65 is applied. Such uncertainty may cause people to seek legal determinations for the validity or compliance of their employment agreements.

In the bill’s present state, the Ministry of Business, Innovation and Employment (MBIE), as the regulator, cannot definitively advise the employers and unions whether existing employment agreements will need to be amended without judicial interpretation and precedent being set. Guidance cannot be used to resolve uncertainty about interpretation; only judicial decisions can. MBIE cannot provide guidance that is relied on by employers but may potentially be a different decision that a court will be reaching.

So while it’s thought very likely that a court will apply the Legislation Act and conclude that only new agreements have to contain the new required content, it could be argued, like lawyers most usually could, that it could be interpreted as requiring all existing agreements to be updated, and until a court decides that particular question, the uncertainty could cause concern for employers about what they need to do to actually comply fully with the Employment Relations Act. I say it particularly because failing to comply with section 65 can attract penalties and they are up to $10,000 for individual employers, or $20,000 for corporations.

The Supplementary Order Paper inserts a transitional provision into the bill. It makes it clear that employers are not required to amend existing employment agreements to include this new time period, and that will give certainty for employees, employers, and practitioners.

Now, before I sit down, I would like to take this opportunity to thank the Hon Dr Deborah Russell for entrusting me to take this bill through the House in its final stretch. Dr Deborah Russell had the good fortune, before she became a Minister, to have a very good bill drawn from the House, and she did a lot of work shepherding it through the different stages of the House, through the select committee, and she made very wellregarded representations at each stage of that process. So I thank her for her efforts.

I would also like to specifically mention the officials from MBIE and the Parliamentary Counsel Office for their assistance with this SOP, and the recommittal process in general, which has proven to be not so much of a straightforward process. So thank you.

Thank you, Mr Chair. National will be supporting Supplementary Order Paper (SOP) 331, albeit because a shoddy oversight could have left employers in the situation where around 1.5 million employment contracts would be wrong, and employers would have had to have been fined for that, or 1.5 million employment contracts would have had to be renewed and changed. So the disruption to employers and the possibility of fines makes it a purely pragmatic matter for us to support SOP 331.

Thank you, Mr Chair. I want to thank the member Marja Lubeck for her opening comments on this bill—which, as she said, she has inherited from the Hon Dr Deborah Russell, who has now moved to be a Minister in this Government. I actually sat on the Education and Workforce Committee with the member and looked at this bill in quite a lot of detail. We heard a number of submissions from a number of people; and the importance of getting this particular piece of legislation right so that people are able to have a longer period of time to bring a personal grievance for sexual harassment was emphasised by, by my recollection, almost every submitter. So I do think it was very wise of the member to bring this Supplementary Order Paper (SOP) to the House following her shepherding through this bill after the Hon Deborah Russell.

The questions that I have for the member around the Supplementary Order Paper are really about the effect and the value that it will add to the legislation in terms of clarity. We did hear another contribution from another member that this was a “shoddy oversight”—I’d be interested in the member’s view on that. My view, which I’ll offer comment to the member on, is that there was no oversight necessarily in the bill, and I think that the member’s assumption around how the bill would be interpreted—as she mentioned in her opening statement—is likely to be correct, and, in fact, it wouldn’t necessarily cause any direct issues if the bill was passed without the SOP. However, I do see the value in the SOP, in clarity. We often speak in this House about plain language; we often speak about clear legislation which is easy for people to understand and interpret. I think it’s a worthy point to make that it may be that employers, once this law is passed, would need to get legal advice or would be unsure as to whether their employment agreements—be those individual employment agreements or collective agreements—would need to be amended, and if they were amended, at what stage. Having previously practised as an employment lawyer, I know that those are the types of questions which are often asked in relation to new laws that come in. So I do see the value in this, but I wanted to ask the member if she did have any comments on that.

The other thing I wanted to ask the member is that obviously this piece of legislation amends the Employment Relations Act. There is a primary piece of the Employment Relations Act which refers to section 115, and I wanted to just ask her about how this SOP interacts with that primary piece of legislation, section 115, and the primary Act—which this SOP, and indeed the bill that the member is shepherding through the House, would change—which already covers exceptional circumstances for extension of the time of personal grievances. So this is something that we delved into in the select committee in terms of the original bill without the SOP amendment. This SOP obviously amends that provision, or would have effect on that provision again, and so I’m very interested in whether the member has considered the impact of that. I mean, that piece of that particular section is very, very fundamental and very, very important to the operation of the Employment Relations Act, and so if there is an impact from this SOP, it would be, I think, very important for the House to be made aware of that.

The last thing I just wanted to touch on, and I’ll be interested if the member had any views, is the difference between the requirements for amendment—if indeed there are any in this SOP—for collective employment agreements which have provisions in relation to bringing personal grievance claims and individual agreements. We know that there are provisions within the Employment Relations Act which require employment contracts to outline the process for going through a personal grievance in relation to sexual harassment, or indeed any other matter that a person may bring a personal grievance for. So, obviously, this will amend that provision; it’s not specified exactly within this SOP how that amendment would be exactly drafted within the collective or individual employment agreements. However, that is a normal drafting practice, as I understand. But I would be very interested to know if the member did in fact have a view on some of the issues that I’ve canvassed, and perhaps the clarity of the drafting that this SOP would result in.

Thank you, Mr Chair. Yeah, I did make a comment in my opening remarks that it is very likely that a court would apply the Legislation Act and conclude that only new agreements would have to contain this new required content. But I think it’s important to really dig a little bit deeper into what the Supplementary Order Paper seeks to change. Currently, sections 54 and 65 of the Employment Relations Act—these were made to both the collective agreements as well as the individual employment agreements—require that both types of these agreements, and it’s specified in the law, must contain a plain-language explanation of the services for the resolution of employment relationship problems, including a reference to the period of 90 days within which a personal grievance must be raised. So what clauses 4 and 5 of the bill do is they amend sections 54 and 65 of the Employment Relations Act. So, in both types of agreement, the plain-language explanation of the services available for resolution of employment relationship problems will need to then include a reference to this new 12month time limit for a personal grievance in respect to sexual harassment. And each agreement also must continue to reference that 90-day limit that applies to any other type of personal grievance.

The question from the member with regards to unintended consequences is a really interesting one. Talking about some unintended impact, potentially leave can be granted for a personal grievance to be raised outside of the time limit, so section 115 is discretionary. The authority is not required to find the lack of provision regarding the 12month period as extraordinary. I guess, what I would add to that is that because section 115 specified “exceptional circumstances”, it includes where the employee’s employment agreement doesn’t contain the explanation concerning the resolution of employment relations problems required by section 54 or 65. So a court could potentially hold that because it was not specified within an employment agreement, the reasons for granting leave aren’t there. So the new law could potentially be affected because the existing employment agreement wasn’t updated. I mean, we had advice on this, and it was said that that was an unlikely decision that the court could come to, but I guess that is where the clarity comes in that we needed to provide, because uncertainty in these areas and in grey provisions would only be helpful for the lawyers trying to argue it.

What was the other question? I spoke about the court that would be likely to apply the Legislation Act, so that also goes to the comment of the shoddy oversight, and there’s no difference in the requirements for collective agreements and individual employment agreements, which I think was the third question on process with regards to personal grievances. So I think I’ve addressed all those three questions. Thank you very much.

The question is that Marja Lubeck’s amendment to the Schedule set out on Supplementary Order Paper 331 be agreed to

Amendment agreed to.

Bill to be reported with amendment.

House resumed.

Madam Speaker, the committee has considered the Employment Relations (Extended Time for Personal Grievance for Sexual Harassment) Amendment Bill and reports it with amendment. I move, That the report be adopted.

Motion agreed to.

Report adopted.

I declare the House in committee for the consideration of the Sale and Supply of Alcohol (Exemption for Race Meetings) Amendment Bill.