Employment Relations (Pay Deductions for Partial Strikes) Amendment Bill

Members, we come now to the Employment Relations (Pay Deductions for Partial Strikes) Amendment Bill. We begin with the debate on Part 1, “Amendments to principal Act”, which is clauses 4 to 9, and the Schedule. The question is that Part 1 stand part.

Thank you, Mr Chair. I just want to start by giving an indication of how I see this debate and what we will be doing on this side of the Chamber around how we’re going to frame our debate over the next wee while. First of all, it’s well-known that we absolutely oppose this piece of legislation, so very much for the Minister for Workplace Relations and Safety, I’ve got some big-picture, umbrella questions on where her thinking was around this legislation, what led to this, and the evidence that supported it, and then I’ve got some questions relating to individual clauses. We have a number of amendments that we will table or have tabled that will speak to those individual amendments as well that we are proposing.

On that, I want to just set the scene a little bit. Going through the bill itself and going through the regulatory impact statement (RIS), it seems to me that as it says in the RIS, the Minister has proposed this legislation change to—and it quotes—restore the “balance to collective bargaining situations.” In there, it argued that employers are disadvantaged because they cannot make proportionate responses to partial strikes undertaken by employees during bargaining. What it fails to recognise, in my opinion and the opinion of quite a number of people who work within this area, is the inherent imbalance between employees and employers in the industrial situation, and the fact that employees are inherently in a lesser situation in an industrial situation with that power imbalance.

What this bill does is it takes away many of their rights and much of their ability to be able to bring their position forward in that industrial situation, particularly when it gets to a point that there’s a bit of an impasse, and the fact is that they have nowhere to go other than to full industrial strikes. That was the reason why the partial strike provision was introduced in the first place, so that it would alleviate the need to have the full-on strike and the full-on industrial action.

Just going on from that, the RIS shows that there was no robust evidence on the effectiveness of the bill. Clear evidence of the impacts of these measures should be available—and they absolutely should be available because these amendments have previously been enacted and then repealed—but the effectiveness of these proposals towards the Minister’s aims has not been provided. So my first question to the Minister is: what evidence does she have—and not reckons, but evidence—that this wouldn’t result in a more full-on industrial situation, because rights have been taken away from those particular employees and from those particular workers. So what evidence does show that?

What evidence does she have that employers have been marginalised in this situation, as well? I’ve been through and, as a previous Minister, have overseen a couple of rather big industrial situations, and at no point was it ever the case in either of those situations—and I’m talking about the firefighters and the teachers—that the employers were marginalised in those situations at all, as has been said here in this rationale. What evidence does she have that employers have been marginalised?

So the two questions are both around evidence, as far as her rationale goes, for this bill being enacted in the way that it has been. Thank you.

Thank you, Madam Chair. Here we are again at the committee stage, discussing another bill brought by this Minister that would take away the rights of workers and put them in unfair situations. Unfortunately, it’s no longer a surprise as there appears to be a continued attack on the rights of workers, and this particular one is in relation to their right to take industrial action.

This bill is a bill that allows employers to, for any action that might breach an employment agreement, deduct 10 percent of that worker’s pay with impunity, and that does not protect those workers from not being paid the minimum wage and it does not protect those workers for their employer unfairly deducting a larger amount of their wages than the proportion of work that they haven’t done. I think these are aspects of this bill which are inherently unfair. There are amendments on the Table which I look forward to asking the Minister about because I think there is an opportunity here for her to look beyond the arbitrary punishment of working people in New Zealand and look to what is actually fair and reasonable legislation, which will fulfil the purported aims as outlined in the introduction statement of this bill. So I do have a number of amendments that I would like to discuss with her.

The first one that I will discuss is in relation to clause 5. This provision in the bill was originally repealed due to the fact that employers were using this in a way which was deemed to be unjustified and unfair in relation to the action taken by employees. That is the reason that this provision was repealed. That aspect was specifically in relation to something which will be put back into law under this particular piece of legislation—that is, allowing partial strikes to be considered for deductions of wages.

I have put in front of the Minister an amendment which will not get away from the inherent unfairness, I don’t feel, of this bill, but it will go some way to alleviating the extreme unfairness that was seen in the prior legislation which was repealed, and it would, in fact, improve this legislation to make it slightly more beneficial to all working New Zealanders. That is specifically looking at the extreme unfairness and pettiness that had been in place, where employers had looked to clothing that people were wearing and badges that people were wearing as part of a partial strike and industrial action, and they had, in fact, deducted wages from those people, despite the fact that they had completed all of the tasks in their job description and all of the tasks in their employment agreement and had, perhaps, gone above and beyond in relation to their effective duties.

Now, this could be something that the Minister could carve out; I implore her to do just that. It is not fair to state that just because someone wears a badge—and it has been noted, with some irony, the particular predilection of that Minister’s particular political party towards doing just that—or an item of clothing, that is, therefore, enough to deduct wages from an employee. The Minister could change this bill to specifically exclude technical breaches of employment contracts that might be associated with items of clothing or adornments like a badge or a brooch that state a political message.

I know my colleagues on the other side won’t be taking a call on this, but I’m sure that if they would, they would say that that is fair enough because that might affect the business. Now, this is something we can discuss later in relation to the public sector, but this doesn’t just apply to private businesses. This applies to every single worker in New Zealand, whether they’re public facing or not, and so that overall statement that it might impact on the reputation of that business is not borne out by the fact that this particular bill goes so far as to allow any technical breach of an employment agreement, like wearing an item of clothing, to be considered a partial strike. So I don’t think that that particular excuse holds water. I think that any reasonable person would not think that not adhering strictly to a uniform policy during a period of industrial action by wearing an item of clothing should mean that you’d take home less wages.

In this bill, as I’ve said before, there is a specific section that allows workers in New Zealand to be paid less than the minimum wage. This is for people that have done their job. What kind of country are we that we do not want workers who do their job—adult workers entitled to, at the bare minimum, the minimum wage—to receive that simply because of something that they wear? I think that that is abhorrent, I think that it is absolutely contrary to our values as a country, and I have a specific amendment around that, which I will talk to later, that would remove that particular item from the legislation.

My question to the Minister is: will she accept my amendment to insert in the definition of “partial strike” in new section 82AA in clause 5 a new paragraph (c) that states “despite paragraph (b), this does not include actions such as wearing clothing or badges that are solely meant as a silent or visual protest while the employee otherwise conducts their normal performance of work as outlined in their employment agreement”? I haven’t put this forward to waste the Minister’s time. I have put this forward because I think this is a well-thought-out, practical solution that would actually strengthen this piece of legislation and make sure that the worst situations of unfairness that we did see when this was previously the law—and then it was repealed—would not occur under this Minister’s legislation.

My colleague Jan Tinetti has specifically asked for the evidence that has been used in formulating this particular piece of legislation, and if the Minister has had evidence to suggest that there are some inherent issues with these very minor, technical breaches of employment contracts that may constitute a partial strike, has she had any evidence to suggest that that is actually going to improve the lot of workers in New Zealand? I don’t think she has. I would be interested to know if she has, and I would be very interested to know if she would consider implementing my very pragmatic, very sensible carve-out that would improve the fairness of this legislation for all New Zealanders and get rid of what is a terrible, terrible injustice that we have. It’s not just scaremongering; it actually happened under the prior legislation.

I genuinely want to know from the Minister: will she consider that amendment or a similarly worded amendment to the same effect, and, if not, why not, and how does she justify that? Is that justification based on advice or evidence that she has received, and, if she has received that, what is it?

Thank you, Madam Chair. I will respond to the contributions made so far, and through the contributions, I’ve been hearing about fairness. That is at the heart of why this Government is passing this legislation—it’s about a rebalance of fairness across industrial action. At the moment, the status quo is that in response to a partial strike or partial withdrawal of labour, an employer can either suck up the costs and not do anything, or have a full strike. There is no balance in the middle about ensuring that the parties get back to the negotiating table, but there is also nothing in here about the fairness of the actions on others.

When we’ve been talking about what evidence there may be, over the last few years there has been a number of partial strikes, and I’ll just list a couple. In 2024, hospital-based MRI and nuclear medicine technologists undertook partial strike action, including limits on the number of scans completed each day. This resulted in a reduction of around 50 percent of scans, delays in early cancer treatment resulting in increased waiting lists and increased outsourcing costs, and it required additional front-line staff to cover the striking workers’ radiology work, and so there is an inherent unfairness that the employer’s response is either to accept this or to ask for a full withdrawal of labour, and the people who miss out are the Kiwis who are waiting for their cancer scans.

The second point is that in 2023, teachers undertook strike action which was a partial strike, refusing to teach certain year groups on different days. This seriously disrupted student learning and families, who, at quite short notice sometimes, needed to find other places to have their kids for a day, or who had to give up work for a day to look after their children. There is an inherent unfairness that the response for the employer is either just to accept it, or to ask for a full withdrawal of labour, and so this incentivises getting people back around the bargaining table and not having to have a disproportionate response to the action of a partial strike.

When it comes to the issue of whether or not the items of clothing that Camilla Belich has put forward in her amendment could be excluded, look, that’s not something that the Government will progress with. But I also want to put on record some of the concern that I think it’s been borne out of, which is that in 2017, some St John Ambulance officers took a partial strike action, which was that they had worn their union T-shirts. The concern here was not the union T-shirt; the concern was that they refused to wear a high-vis vest on top of the union T-shirt, which was something that the employer, understandably, wished to uphold in the employment contract because of the nature of the work that they were doing as St John Ambulance officers.

Dr Vanessa Weenink: It’s safety.

Hon BROOKE VAN VELDEN: You’re right—it comes down to health and safety and the obligations of the employer to uphold that health and safety in the community. So, for that reason, I will not be supporting Camilla Belich’s amendment, but this actually does come down to the rebalancing of fairness for employees—yes, the right to strike—but for the right of the employer not just to have to accept it or to ask for a full withdrawal of labour, which is disproportionate, and also for the fairness of the Kiwis who have been missing out on cancer treatments and schooling.

Thank you, Madam Chair. I have some questions in relation to clause 5 and the new section 95A, which is in clause 6. But, parking aside the fact that this is a rubbish piece of legislation that will hurt our workers, I have some questions in relation to unintended fiscal consequences that may arise as a result of the provisions in clause 5.

One of the reasons why I ask this is that in the Social Security Act, for example, there’s a definition of “strike”, which in and of itself impacts on people’s eligibility to access, for example, jobseeker support, or other types of assistance. Right now, we have provisions that allow low-income workers who may be facing hardship to apply for things like hardship grants, or special needs grants, as they’re called, but while there is a definition in clause 5 of the meaning of “partial strike”, it seems like the Minister hasn’t changed the definitions in, for example, the Social Security Act to add “partial strike” to that in terms of the provisions of who can access assistance. The interpretation, therefore, that I’m getting is that based on the language in new section 82AA in clause 5, people who are undertaking partial strikes could, in theory—some of them—be able to access financial support from the Ministry of Social Development (MSD) if the deduction in pay puts them in hardship.

Now, if that is to be the case, has the Minister accounted for any unintended fiscal consequences that may arise from having a definition of “partial strike” in this bill, but not then, for example, translating that to the Social Security Act, because what we could see is people who have a pay deduction being put in hardship? Particularly, we’re talking about low-income workers then having to access hardship assistance and facing rent arrears, and then having to ask for rent arrears assistance, which is something that low-wage workers could access via MSD. So I just wanted to ask whether MSD was consulted around these potential unintended fiscal consequences that her bill may have as a result of people who are being put in hardship still being able to access assistance from Work and Income due to the language, very specifically, that is found in clause 5 around “partial strike”, and then subsequently in the new section 95A, which allows for that amount to be variable.

I think, to me, this is a really important consideration, because if we take away all the discourse that the Minister just presented around the notion of fairness, the real-life impacts of this bill is that some people could actually be placed in hardship as a result of this. It could include—as Camilla Belich and others have noted—changes in the attire that people wear, and that could result in, say, for example, lower pay. So if the Government hasn’t accounted for potential fiscal impacts that, particularly, the provisions in clause 5 in Part 1 may have, does she think that it was being responsible to not have consulted with MSD about the potential impacts and the contradictions in definitions found in this bill versus those in the Social Security Act? There’s no definition in the Social Security Act of “partial strike”, and the way that “strike” is defined in that Act seems like it would not encompass everything that is in here. Does she think that that is problematic, and, if not, why not? If she does have information about unintended physical consequences, would she be able to front up to the House and reveal what those are so that the general public understands what additional pressures may be put on MSD as a result of people needing assistance from them?

Lastly, I did want to just seek clarification—and I think it would be good to put it on the Hansard—about what happens to KiwiSaver contributions as a result of those pay deductions. Would those be affected or not, because, obviously, that’s been a feature in those changes in the Budget. So I think it could just be useful for the Hansard for the Minister to clarify to the committee what happens in relation to them.

To recap, I do think that the way that she has decided to add a definition of “partial strike” in here while perhaps not looking at how that is defined in other pieces of legislation does feel problematic, mostly because they’ll have a fiscal consequence. That fiscal consequence is real, and that’s why we’ve been concerned in the House. What we’ve been concerned about is the real fiscal consequences for low-wage workers that this bill is punching down on, so any clarification on unintended fiscal consequences as a result of the provisions in clause 5 would be great, and also on any consultation that she may have had with MSD in relation to this potentially being a gap that we’ve identified. Thank you.

Thank you, Madam Chair. It was clear to anyone listening to this debate that we on this side of the House consider this to be an odious bill. Rather than rebalancing employment relations, it’s yet another example of tipping the balance in favour of employers and undermining the rights of workers to collectively bargain for a fair share of the wealth that they generate.

I wanted to add to the list of questions for the Minister for Workplace Relations and Safety to consider that the big contradiction that lies at the heart of this bill that was kind of illuminated at select committee, but not really properly explained or resolved, and that is what this means in terms of the place of the contract in employment relations, which of course is central to all of the way that we think about workplace relations and how we govern them. What this bill, effectively, allows is for people to have their pay deducted for abiding by the terms of their employment contract. Now, on the face of it, that seems bizarre, but that is, in fact, what this bill does.

I’d point people to new section 82AA in clause 5, in Part 1, which is, essentially, the definition of a “partial strike”, which includes “a reduction in the employee’s normal performance at work, normal output, or normal rate of work:”. Now, as everybody knows, an employment contract sets out and specifies the details of what an employee is required to do—the rights and responsibilities—but in every example, I would argue, there is always a range of kind of informal and flexible arrangements that develop between an employee and an employer. It might be the understanding, for example—it might not be in their contract, but it might be that in certain circumstances—that an employee will stay behind a bit later to help clean up after some event or some activity. It might be an understanding based on a quid pro quo with the employer that an employee may backstop another employee in the team when something needs to be done. It’s not in the employment contract, but it’s just one of those things that you’d do to make sure that the team works effectively and that a workplace is efficiently run.

The example that we talked about a lot in select committee was teachers who coach sports teams, and that’s a very common example. There wouldn’t be a school in the country where teachers don’t routinely do things that are outside the explicit terms of their employment agreement, but they do it out of a sense of pastoral care and commitment to the students and a desire to make sure that the school is successful and works well and provides a great environment for the students.

All of those little flexible kind of arrangements that develop in an employment relationship would arguably, I think, come to be seen to be the normal output of an employee, but it appears, under this bill, that if someone stops coaching that sports team, they stop backstopping another employee, or they stop staying back behind to help clean up after some kind of event, which are things that aren’t in their employment agreement—

Camilla Belich: But are not paid.

Hon PHIL TWYFORD: —yeah—but that could be considered to be part of the normal output, then that can be deemed and construed to be a partial strike. Is that right? Is that fair? Is it consistent?

I think it’s a total contradiction at the heart of this bill, and I invite the Minister to explain what her thinking about this is. Does she accept that it’s a contradiction, and what about the practical consequences of doing this? What are employees going to do? Are they going to say, “Well, I’m going to stop doing all those things.”? I would really like to hear some answers to that.

Thank you, Madam Chair. I want to start by focusing on clause 5 and new section 82AA around the definition of “partial strike”. We’ve heard what the Minister said before and some of the examples, and I’ll come to the Minister for Workplace Relations and Safety’s example in a bit, but just picking up on Camilla Belich’s question around items of clothing, I really want to unpack the exact wording of the definition of “partial strike”. I want to test a few scenarios with the Minister on the applicability of that definition and who that burden of proof is then on.

So in terms of the definition of “partial strike”, paragraph (a) of that definition talks about “perform some work” and in paragraph (b) it talks about a break in terms of “normal duties, normal performance … normal output,” or a “break their employment agreement,”. Now, can I just check: if the employment agreement doesn’t specify anything about items of clothing, is it a break of the employment agreement and what would be the determining factor on that? Would that be a mutual decision made by the employer and the employee, or does that decision making solely rest with the employer, because under any good contractual agreement, the benefit of the doubt and also the interpretation and any changes in the interpretation rests on the party that did not draft the agreement in the first place. So would there, again, be more case load or challenges through the Employment Relations Authority (ERA) not only on a matter of interpretation of the legislation but also in terms of the employee’s employment agreement?

I also want to check, again, in considering having an employee perform some work—because I remember this, possibly, as part of the select committee stage, when questioning one of the submitters—whether working to rule is considered to be a partial strike, because in some cases, working to rule has been interpreted as a partial strike. However, if a person is working to rule, it is not considered to be a partial strike under the definition in this. So if an employee was striking in a form of working to rule and they’re being slapped by this, would they then have probable cause to challenge that with the ERA? That is my second question.

My third question is: what data does the Minister have when it comes to there being a genuine change—or what then would the employer need to produce to suggest that there is a genuine change in productivity? In terms of the regulatory impact statement—and the Minister has mentioned the instance with, let’s say, St John Ambulance officers and the instance with Health New Zealand—that is data that possibly we could track, but most of these sorts of things possibly happen in the private sector. So what data does the Minister have that is genuinely from the private sector that a partial strike has led to a reduction of productivity, which means a reduction in the normal performance of work, because if an employer cannot prove that there’s a genuine reduction, rather than just saying “We think there’s a reduction in productivity.”, how would that be upheld when things like this get challenged? That’s my third question.

My fourth question is around what the Minister has said in terms of the backlog in the Health New Zealand example. I reject the Minister’s trivialisation of why employees would conduct partial strikes in the first place as a way of—do you know what? In general, people don’t do that for fun; people do that because of a genuine fundamental issue that they cannot have agreement on with the employer, and I particularly reject the notion that the Minister proposes of pitting parents and patients against teachers and health staff as a way of saying, “Oh look, what about this?” As a matter of fact, most people would agree that teachers and health staff and nurses should have the best workplace conditions possible, and so I would just like to consider the Minister to reflect on her example.

Thank you, Madam Chair. I just want to ask a very quick question, and then go on to the question around the amendment that I have tabled in my name on new section 82AA in clause 5. My first question is just in relation to an answer that the Minister for Workplace Relations and Safety gave around the question about clothing that my colleague Camilla Belich asked her. She talked about whether, considering that partial strikes are intended to include non-compliance with an employer’s policies and procedures that do not give rise to loss of productivity—and my colleague talked about the clothing side of things and that definition in new section 82AA. Just as that question was being asked and the Minister was giving her answer and gave the example of the St John Ambulance officers, I wanted to ask whether she considered the likes of Fire and Emergency New Zealand’s (FENZ’s) industrial action, and what the firefighters did with their industrial action with FENZ in 2022, I think it was, when they used—

Sam Uffindell: Was that when you had internal affairs?

Hon JAN TINETTI: Yes, actually, Sam, that was when I was the Minister, and I’ve already said that. You weren’t in the Chamber when I said that, so just for clarification, I’ve already mentioned it before. You should keep up with the debate maybe, which would be really good.

CHAIRPERSON (Barbara Kuriger): It would be better if the member used full names and referred to the member not hearing it—

Hon JAN TINETTI: Oh, thank you—Sam Uffindell.

CHAIRPERSON (Barbara Kuriger): —and not the member not being in the Chamber, OK?

Hon JAN TINETTI: Yeah, thank you, Madam Chair.

CHAIRPERSON (Barbara Kuriger): Thank you.

Hon JAN TINETTI: What I wanted to ask about in that case is when they used their fire engines as a little bit of a billboard to let the public know what their issues were—which was a very creative way of getting that out there as part of their industrial action—it was very similar to the uniform policy that the Minister answered before about St John. So does the Minister see something like that as being a partial strike, because if that’s the case, it seems to me that anything that is deemed to be a partial strike is taking away every single bit of industrial action that employees have open to them, in which case, this isn’t rebalancing; this is absolutely taking the balance well out of the employees’ ability to be able to actually get their messages across.

I’d really like to know the answer to that one, but what I wanted to talk about—and my colleague Phil Twyford mentioned it—is that I have an amendment around new section 82AA in clause 5, and actually giving some definition around “normal performance”, because I feel that that is a very generic term that can be misused by any employer and it is likely to be misused around that. We talk about working to rule, and my colleague talked about teachers and their ability to be able to take sports outside of their normal time. I really would like to know whether the Minister thinks that that is the same as a partial strike. It’s not in their employment agreement that they take those things, but they have volunteered to do that, and, as part of their industrial action, they have then said, “Well, we’re not going to go down the route of only having certain year groups or teaching certain year groups, but we are going to work to rule. We are going to keep to that employment agreement, and we will not be taking any extracurricular activities.” Is that seen as a partial strike?

The reason that I ask that is because those roles are volunteer roles—I mean, I’ve done those myself. They’re usually given to the last person to put their hand up, or it is usually given to the youngest and newest teacher in the staffroom to take those. I know, because I have been one of those people and I earned my stripes not to teach certain sports at certain times when I got a little bit older, but I think that that would be very, very unfair if that was deemed to be a partial strike, so I have put forward an amendment that would clarify that. I wonder whether the Minister is open to that but also does she think that that would constitute as a partial strike—so there were two questions there.

Thank you, Madam Chair. Speaking to a number of the contributions, the member Ricardo Menéndez March asked specifically about interactions with the Social Security Act. The definition of “strike” in the Social Security Act connects to the definition of a “strike” in the sections of the Employment Relations Act. The definition of a “partial strike” in the bill must be a strike as per section 81 of the Employment Relations Act, so a partial strike is a subset of a strike, and there is no need to change either of these Acts.

Ricardo Menéndez March also asked about the Ministry of Social Development. They were consulted as part of the usual agency consultation, ahead of taking the paper to Cabinet. But when it comes to specific fiscal consequences, there wasn’t, I believe, a necessary need to try and model this in any way, because it’s very difficult to know what will happen in the future. But there are some kind of fiscal implications that you could infer. For one, when we’re rebalancing the ability for business owners to respond, this has an implication that the business owner doesn’t have to either accept the full costs of the partial strike with the lowering of normal work, or go to a full withdrawal of labour and a complete withdrawal of that pay.

So the next question, then, was: how does it impact KiwiSaver? The standard approach for how KiwiSaver applies when a deduction is made to an employee’s wage will apply as normal, so there is no need to amend the KiwiSaver Act.

Phil Twyford, as well as Jan Tinetti, raised the issue of teachers and extra duties. Whether an action is considered a partial strike will be quite case-specific, but when it comes to being in relation to things like coaching, which was raised by both members, if the employment agreement explicitly includes coaching as part of the role, then refusing to coach would be a breach of that agreement and that could be a partial strike. If coaching is not explicitly included but was considered to be part of the teachers’ duties that they received renumeration for based on past practice and employment conversations, it may be that refusing to coach could be considered a breach of their employment agreement, or considered to reduce their normal output and, therefore, it could be a partial strike. But I want to reiterate that this is very case-specific, and I can’t talk to any specifics of cases in the future that would be considered those.

The next question, then, from Lawrence Xu-Nan was: if the employment agreement does not require a uniform—once again, that’s very case-specific, as some employment agreements might include a requirement to comply with the company’s policies, so it could depend on what is covered by other company policies as part of that contract. The employer would determine if they consider that they can make a deduction, but if there is any disagreement, you can use the dispute resolution available.

The previous answer I gave is also attached to Jan Tinetti’s amendment. The Government will not be supporting that.

Thank you, Madam Chair. While we’re still on clause 5, I just wanted to take the opportunity to thank the Minister for her response to some of my earlier comments, and also ask some follow-up questions. I also just wanted to spend a tiny bit of time looking at—as we are on Part 1 now—the reasoning in the departmental disclosure statement and the regulatory impact statement (RIS) that has been used by the Minister for Workplace Relations and Safety in determining this course of action in relation to this bill.

The first thing I just wanted to follow up with the Minister on is this: in response to my question around my amendment that would prevent this bill being used unfairly, in my view, when people are simply wearing an item of clothing, she cited an example where she had noted health and safety requirements associated with that item of clothing. I accept that it is correct in some instances that there are items of clothing that need to be worn for health and safety reasons, and another example might be a helmet or protective wear. So a follow-up question to the Minister is: given that she has used that example as a justification as to why the Government would not be considering an amendment of this nature—which I do think is a sensible amendment, and it would actually get around a lot of the fundamental, overt unfairness that is being brought into the House by this bill—would she consider an amendment that disallowed deductions for items of clothing or other adornments that are worn, except where it is a requirement that that particular items of clothing be worn for health and safety reasons? I think that’s a reasonable question, and it would be something that I would be happy to amend my proposed amendment to allow to happen. I think that would be a really sensible way forward.

I also wanted to ask the Minister about this. There is reference in the departmental disclosure statement for advice provided by the Ministry of Justice on this particular bill. I haven’t seen that advice and I couldn’t see that in the regulatory impact statement, and I wanted to ask her what that was.

The other thing that I noted that was redacted in the regulatory impact statement was the international relations section. Was it redacted for the reason of international relations? I wanted to ask the Minister, given that redaction and given that we are now discussing this in the committee stage, is she able to provide advice as to whether the proposals that she has outlined will undermine our international obligations under our fair-trade agreements—notably, our fair-trade agreements with the UK and the EU, which specifically provide that there should not be a reduction in labour standards—and whether she has considered that?

I do have a point which I won’t speak to now, but it is in relation to clause 6, which I do want to talk about in relation to comparable jurisdictions. But this is a separate point. This is about our international obligations that we do have, and also our obligations to the International Labour Organization, which, I understand, is meeting at the moment, so I wanted to ask the Minister about that.

The other thing I wanted to ask while we are still on clause 5—and it is related to my other questions—is whether she considered that we do have a definitional section in clause 5, which is what we’re talking about at the moment. We have got a definition of “partial strike” and we do have a lot of discussion around normal duties. Did she consider putting in a definition of “normal duties”? I think that if she did put in a definition of “normal duties” that was more consistent with the minimum required to complete one’s work, that would, potentially, get around the concerns around a work to rule, which would be considered a partial strike under this bill, and it would get around the concerns raised by my colleague Phil Twyford. So did she consider putting that in this?

Just while I am still asking questions around this consultation, the Minister has in the departmental disclosure statement and in the RIS talked about and mentioned public sector consultation. Was there any consultation with the private sector? I cannot see that in this particular bill, and it is particularly pertinent because there are a lot of justifications which relate to the private sector. So I want to know that.

Thank you, Madam Chair. I’ll just tick off a few more items. Lawrence Xu-Nan had a question about the private sector and the impact of partial strikes there. Look, I have seen private sector partial strikes. This was apparent with the train operators in Wellington. It is also important to note that this is not actually a very radical bill. This is going back to the 2017 era, before Labour changed the law in 2018. Public sector productivity is important and private sector productivity is important, but there are other jurisdictions around the world that have regimes for partial strikes, including Australia and the UK, which are countries that we quite often compare ourselves to—and so I see that as a response also to Camilla Belich.

Jan Tinetti had a question about firefighter strike action and billboards. The particular case that she has referenced would be very case-specific and would depend on what the employees’ agreement and company policies involved.

Lawrence Xu-Nan also asked about whether a disagreement over productivity and output has occurred, or whether that has gone up or gone down, and how that would be resolved. There is a dispute resolution process provided in the bill, using the usual employment processes like mediation and the authority.

Thank you very much, Madam Chair. I have got a point I’d like to make in relation to the information made available in the regulatory impact statement around clause 5. But I would just like to highlight that we on this side have been trying to ascertain how this is going to play out.

We’ve given the Minister for Workplace Relations and Safety some very different scenarios, and each time we have heard that that’s case-specific. Well, that’s the point we would like to kind of understand, and the workers of New Zealand would also like to understand how this is going to work and play out. So the Minister’s response to these questions by saying that that’s case-specific and, therefore, not responding to them is not an adequate answer for us on this side or for the workers impacted by this legislation.

I would encourage the Minister to consult with officials and maybe be able to give some further consideration to some of the instances that this side of the House have offered in order to understand the practicalities that this bill will have. That comes back to the main problem that we have, which is that the bill specifies that a partial strike can be defined as “a reduction in the employee’s normal performance of work, normal output of work,” and yet the bill allows sanctions for actions undertaken as part of a partial strike that cannot be reasonably construed as impacting upon the workers’ normal performance of work.

When we look into the bill itself, there is no explanation as to what this bill is aiming to achieve. What is the output?

The Prime Minister is big on outputs. When I read the commentary of this bill, it simply repeals what was put in place under the Labour Government in 2018, without stipulating whether it is increased productivity, whether it is more jobs, or whether it is higher employment. What is the outcome that these changes make, because when we look at the regulatory impact statement, the officials have stipulated that they have tried to identify data on the use of partial strikes and any correlation with the length of bargaining, but they state that there have been significant data limitations. So there is no analysis of what the solution is that this Minister is providing via this legislation, or as to what the problem is.

I would really love to hear from the Minister what the problem is that this legislation is responding to, because the officials themselves state that “We have concerns … regarding the quality of data as it is self-reported by the employer and therefore reliant on the employer accurately providing information regarding the strike. MBIE does not have any mechanisms under the legislation to compel employers to comply in reporting strikes to MBIE. In addition, prior to 2014 not all work stoppages were included in reporting. Work stoppages were only included in the report if they involved more than five person-days of work lost.”

I would like to understand on what analysis and on what evidence the Minister has concluded that this legislative change is required. The problem in that is that the regulatory impact statement relies on absolutely nothing to put this forward. The regulatory impact statement lacks qualitative data in any way to support the recommended option that has been put forward via this legislation. The lack of qualitative data, to a limited extent, is just compensated through the use of qualitative evidence, and that has actually resulted in reliance on historical evidence, the use of anecdotal evidence, and untested assumptions being made. There is absolutely no evidence that consultation has been undertaken in arriving at this course of action, and, furthermore, it raises real concerns as to how this legislation will impact workers in New Zealand.

I would like to acknowledge that my colleague Camilla Belich has pointed out the redacted sections in the regulatory impact statement regarding international obligations. This is the second piece of legislation that this Minister has brought to the House which could potentially breach our international obligations, with the previous one being the Convention on the Elimination of All Forms of Discrimination Against Women with regard to pay equity.

When we have our local laws, there is a real concern with the general direction of workers’ rights in this country when we are contravening international agreements. It is our domestic legislation that is being eroded to such a point that we now look to international human rights and international obligations to try and pull this Government back into line when they are contravening what are very fundamental human rights. So I believe it is absolutely unacceptable that the regulatory impact statement of this bill is simply redacted in relation to those international conventions for labour and workers’ rights. This Minister has an obligation to tell all of those workers in New Zealand who are impacted by this bill whether or not she has received advice that has contravened their rights in terms of the international agreements that we have signed up to as a country.

I’ll start with the contribution made by Ginny Andersen, in part because Ginny Andersen has been a Minister before and will be well aware of the role of being a Minister, as opposed to being a lawyer. I want to make it very clear that I’m not a lawyer, nor would anybody expect me to be giving legal advice on specific cases. I am a Minister. I’m not a member of the Employment Relations Authority. I’m not a member of the court. I don’t have purview to look into individual employment agreements and individual company policies to have an in-depth understanding of every collective agreement and whether or not every single action that could be underneath an individual or collective agreement or the variety of different employer company policies across this country would interact with the partial strikes legislation, and it’s odd to me that anyone would expect a Minister, who sets the laws, to have that level of detail of every individual or collective agreement and every company policy, or to be providing legal advice.

Now, the next question that she raised was the problem in regards to the bill: what are we actually trying to address? It’s quite clear—it’s in the purpose statement and it’s been through the select committee—that the purpose of the bill is to provide for a more effective and efficient bargaining environment where rights and consequences are more balanced and which minimises undue impacts on consumers and the public.

Camilla Belich wanted to refer again to the high-vis example, and why not limit it to those cases. Well, look, this is a good illustration of how it’s not possible to legislate for all circumstances. Like I have referred to in my contribution to Ginny Andersen, I’m confident that allowing employers, employees, and the employment institutions to make those judgments is the right approach.

Camilla Belich also asked about whether or not the bill complies with our international obligations. The Government has a range of international obligations, and I’ve taken these into account in my decision making.

Camilla Belich also asked what advice I had received from the Ministry of Justice. The advice from Justice was that the New Zealand Bill of Rights Act vet that occurs for all bills—this is available on the Ministry of Justice website, and they concluded that it is consistent with the New Zealand Bill of Rights Act.

There was also a question from Camilla Belich about consultation with the private sector. Stakeholders from any walk of life have had the opportunity to provide their views through the select committee process.

There was also a question about whether I considered including a definition of “normal duties”—no. What is considered to be normal duties is, once again, very case-specific, and that would be far too detailed for this type of law.

Lawrence Xu-Nan also a little while ago asked about work to rule. There is a misconception that all work-to-rule measures will be affected by this change. Once again, this is case-specific and it depends on employees’ employment agreements.

I’m going to call Ricardo Menéndez March. But what I do want to say is we’ve been having some very full answers from the Minister and we’ve progressed a number of issues, and I’m listening for new questions.

Thank you, Madam Chair—I appreciate it. I just wanted to follow up on an answer that she gave in relation to my question, and I’m just trying to clarify. The Minister spoke about how there was consultation with the Ministry of Social Development (MSD) in relationship to potential unintended fiscal consequences. I heard that the feedback that she had received was that there was no need to model, but if I look at the regulatory impact statement (RIS) and at the list of entities that were consulted, MSD is not named.

There’s nothing in the regulatory impact statement that actually talks about consultation with the Ministry of Social Development, and so I just wanted to give the Minister the chance to clarify to the committee whether they were actually consulted and what the scope of the consultation with the Ministry of Social Development was. I’m just surprised that she was able to tell us that, apparently, to her recollection, there was no need to model those potential consequences, or that it would have been difficult to model the consequences around, for example, the increased need for special needs grants. But it’s not reflected in the RIS, so was that just omitted? Did that consultation happen later down the line after the RIS was produced, or when did that consultation happen?

That takes me to clause 6, around the ability to, I guess, have some flexibility for the employer in terms of the level of pay deduction. One of the other areas that hasn’t been touched upon is the interaction around that and the accommodation supplement—which I didn’t touch on earlier—when, for example, it comes to the calculations of the accommodation supplement, which we haven’t raised before. I’m interested to know, for example, if there’s an ongoing partial strike where there’s an ongoing pay deduction, whether she expects—while I can accept that maybe she did seek consultation with MSD that perhaps there is no modelling, but I ask whether she is aware that this could result in an increase of those on the accommodation supplement, even though she may not have the exact number.

This is because with the way that that is modelled, due to an interaction between the base income with your rent, the need for the accommodation supplement could be increased, and I raise this in relation to clause 6, because I think that that’s the most appropriate way to raise it. I’m just really perplexed. If she is saying that there was engagement with MSD, why don’t we have that anywhere in the RIS and the departmental report, or in anywhere else?

I just want to seek clarification from the Minister as to what was the extent of consultation with the Ministry of Social Development and why is there no paper trail of an acknowledgment of that level of consultation. I wonder whether this is in the redacted stuff around the anecdotal pieces in the RIS, but I would think that that would not relate to the anecdotal components that were redacted in the regulatory impact statement. So if the Minister would like to point out exactly when and how she consulted with MSD and why that’s not anywhere in the documents, that would be great.

Now, finally, I’m also seeking clarification from the Minister because she spoke about how section 81 of the Employment Relations Act relates to the definition of “strike”. But she’s adding a completely new section called section 82AA, and that’s a separate section, right? So I just want to, once again, try to seek clarification from the Minister in giving her the opportunity to potentially clarify, because it’s a new section. It’s not like section 81A, but she’s adding section 82AA. The Social Security Act does not refer to section 82, but it refers only to section 81 of the Employment Relations Act. So I just want to test out whether the Minister was correct in making the assumption that the definition of “strike” actually flows on to this new section 82AA that is being added in this bill.

Just following on from that, I acknowledge that she did engage with my initial questions. But that’s now opened up a whole raft of questions because there’s nowhere here where we can see that there’s been engagement with MSD, and I’m really concerned that we did not have access to that information if it did actually occur at some point during the legislative process. Thank you.

I call Camilla Belich. Now, the member referred before to looking to some new questions, so that would be appreciated. Thank you.

Thank you, Madam Chair. Yes, I do believe we’ve traversed clause 5, and now I would like to move on to clause 6.

CHAIRPERSON (Barbara Kuriger): I also am aware that we’ve got into a bit of urgency mode lately. This has had a select committee stage, and so I’d like the questions to really home in now. Thank you.

CAMILLA BELICH: Thank you, Madam Chair, for that guidance. I just would also note that the substantive sections of this bill are in clause 6. There’s actually several, I think—it’s these two pages and half of the other pages are on clause 6, so it is quite a big clause. I’ve got two amendments to clause 6 and I want to speak to the first one of those amendments now, if I may, Madam Chair.

CHAIRPERSON (Barbara Kuriger): Yes, you may.

CAMILLA BELICH: I think I have about eight amendments, so I don’t have as many as I would in urgency, if Madam Chair is concerned about that.

My second amendment is, again, made in good faith, and it is, I think, a sensible and reasonable suggestion that the Minister should consider in relation to this piece of legislation. It talks to new section 95C in clause 6, which looks at the way pay deductions are calculated. I have suggested that the Minister looks at a different way of implementing partial strikes through this amendment, and that is to use a proportionate approach based on the actual work that is not undertaken by the employee.

Now, this is a really important point because in the regulatory impact statement, the Ministry of Business, Innovation and Employment (MBIE) officials provided the Minister with a number of different options in order to proceed with this legislation, and one of the options put to the Minister as a credible option—and that’s what I’m suggesting today in the Chamber—is to enable employers to make only a proportionate pay deduction for partial strikes. I think that it’s important to note that particular section as it relates to my amendment to clause 6, which is this particular option, which the Minister didn’t take, but I’m suggesting that maybe she should revisit it. It is that employers would be able to deduct the amount that is proportionate to the amount of work not being performed, so that for so the amount of work you don’t do, you don’t get paid for.

That is actually the rhetoric that has surrounded this legislation, which is that people shouldn’t be paid for work that they don’t do. This amendment and this option—had the Minister gone ahead with it—would actually implement that rhetoric into law much more fully than the legislation that we see before us.

The regulatory impact statement states that “This could be considered the fairer approach for employees and employers, as the amount deducted [would] never be … over the value of the work … being performed.” Notably, this is the situation in two of the jurisdictions that the Minister has mentioned, both today in relation to the UK and in select committee in relation to Australia. That is the situation undertaken in the UK and Australia. In the UK and Australia, they have a proportionate approach to partial strikes. What the Minister has determined to do in this instance, under this bill, is not to implement a proportionate approach. She has decided to implement an approach that would have one option of a proportionate approach, or a second option of a blanket, instant 10 percent reduction in wages.

My amendment to clause 6 would look to the advice of MBIE, look to our international partners and what they think is reasonable in relation to addressing a partial strike, look to general reasonableness and to, of course, why you should have a higher amount deducted from your wages. For example, if you did a partial strike of only 2 percent of your job, you would get a 10 percent reduction—that is what this allows. So my amendment is to change that by deleting new section 95C(3) and to actually implement a proportionate system similar to that of Australia and the UK in New Zealand.

Just a further point while I have the call: the Minister said private businesses were able to submit through the select committee process. She should note that out of the 620 submissions that the Education and Workforce Committee received, 606 opposed the bill, and so that should be taken into account. If you’re looking at what the select committee said, it was that this bill should be binned.

Thank you, Madam Chair. I’ll start with a response to Ricardo Menéndez March. Look, in repeating myself, the Ministry of Social Development (MSD) was consulted as part of the usual agency consultation ahead of taking my paper to Cabinet. I don’t believe it was necessary to ask specifically about fiscal and financial consequences, so that’s my view. He asked why the regulatory impact statement (RIS) then doesn’t actually state that MSD was consulted. The RIS doesn’t list which agencies were consulted, as it’s not normal for a RIS to have that. The agencies that were consulted are listed in the Cabinet paper, which has been proactively released on the Ministry of Business, Innovation and Employment’s website, and it includes MSD.

Camilla Belich was also asking about the ability to make a fixed deduction of 10 percent in relation to her tabled amendment. I’m not supporting her tabled amendment, because removing the ability to make a fixed deduction of 10 percent would impact employers’ ability to make a deduction in situations where it’s difficult to calculate a proportionate pay deduction.

I move that debate on this question—

Sorry, I’ve just got a point of order—just a moment.

Point of order, Madam Chairperson. The Minister has just stated that it’s not appropriate for the agencies who were consulted to be included in the regulatory impact statement. The regulatory impact statement states that the Public Service Commission, the Ministry of Health, Health New Zealand, and the Ministry of Education were consulted, so I think that that is incorrect and the Minister may want to reflect on that statement.

It is a debating point, I’ve just been advised, and not a point of order. It’s actually a debating point.

I’ve just consulted with my officials, and they’ve told me I was correct.

I move, That debate on this question now close.

The question is that the Minister’s amendment to Part 1 set out on Amendment Paper 262 be agreed to.

The question is that the Hon Jan Tinetti’s tabled amendment to clause 5 to amend paragraph (a)(i) of the definition of “partial strike” in new section 82AA by inserting the words “as outlined in the employment agreement” be agreed to.

The question is that the Hon Jan Tinetti’s tabled amendment to clause 5 to amend paragraph (a)(ii) of the definition of “partial strike” in new section 82AA by inserting the words “as outlined in the employment agreement” be agreed to.

The question is that the Hon Jan Tinetti’s tabled amendment to clause 5 deleting paragraph (a)(ii) in the definition of “partial strike” set out in new section 82AA be agreed to.

The question is that the Hon Jan Tinetti’s tabled amendment to clause 5 replacing paragraph (b) in the definition of “partial strike” set out in new section 82AA with words beginning with “break their employment where it is a breach of contract and not a withdrawal of goodwill;” be agreed to.

The question is that Camilla Belich’s tabled amendment to clause 5 inserting new paragraph (c) into the definition of “partial strike” relating to the wearing of clothing or badges be agreed to.

The question is that the Hon Jan Tinetti’s tabled amendment to clause 6 inserting paragraph (e) into new section 95A(2) preventing pay deductions for an employee earning minimum wage be agreed to.

The Hon Jan Tinetti’s tabled amendment to clause 6 replacing 95B(3)(c)(i) is out of order as not being in the proper form of legislation.

The question is that the Hon Jan Tinetti’s tabled amendment to clause 6 inserting paragraph (d) into new section 95B(3) requiring notices to specify a deduction amount be agreed to.

The question is that the Hon Jan Tinetti’s tabled amendment to clause 6, replacing subparagraph (ii) of new section 95B(3)(c) requiring at least 10 working days’ notice before a first deduction is made be agreed to.

The question is that the Hon Jan Tinetti’s tabled amendment to clause 6 replacing subparagraph (ii) of new section 95B(3)(c) requiring at least 15 working days’ notice before the first deduction is made be agreed to.

The question is that the Hon Jan Tinetti’s tabled amendment to clause 6 replacing subparagraph (ii) of new section 95B(3)(c) requiring at least 20 working days’ notice before a first deduction is made be agreed to.

The question is that the Hon Jan Tinetti’s tabled amendment to clause 6 inserting subsection (5) into new section 95C requiring an independent arbitrator to oversee deductions be agreed to.

The question is that Camilla Belich’s tabled amendment to clause 6 deleting subsection (3) of new section 95C be agreed to.

The question is that the Hon Jan Tinetti’s tabled amendment to clause 6 replacing subsection (3) of new section 95C providing for employers, unions, and individuals to apply to the Employment Relations Authority or Employment Court be agreed to.

The question is that Camilla Belich’s tabled amendment to clause 6 deleting new section 95D be agreed to.

The question is that the Hon Jan Tinetti’s tabled amendment to clause 6 replacing subsections (1) and (2) of section 95D with subsection (1) setting out that employers may only deduct pay to the minimum wage be agreed to.

The question is that Camilla Belich’s tabled amendment to clause 7 inserting paragraph (d) into new section 100(4), relating to issues of unfairness in the granting of injunctions be agreed to.

Point of order, Madam Chair. Kia ora, Madam Chair. I’m just wanting to seek some clarity from you in terms of your decision, and we understand it is your decision to make in terms of closure motions. The challenge from the Labour Party members, who were heavily engaged in this, is that clause 6 is the meat of this legislation and we’ve spent more time on previous clauses, but clause 6 actually is the real guts of what this is all about. The other part of this is, in looking at the regulatory impact statement, it also had the officials saying that they had had little time to prepare this, and so I guess being able to prosecute it in this space was something that we’re frustrated about, and we wanted some understanding about why you chose to close the debate.

I do understand the frustration, and there always will be more questions that need to be asked. But how I’ve based my judgment here is that there had been a select committee process, we did have a Minister who was engaging in answering the questions, and I did feel that sometimes the questions needed to home in a bit more, and maybe we could have spent less time and repetition on some questions and saved some more time for others. That’s how I’ve based my judgment, and I think that where we’ve had a select committee stage, there are opportunities to ask questions there, as well.

Speaking to your clarity there, we did have a number of amendments. I know that there’s not a rule that they all have to be addressed, but I know that, particularly, Camilla Belich has indicated that she had, I think, at least eight that she was going to speak to and didn’t get to.

Yes, and I will say to that that you’re correct in that not all amendments do need to be spoken to. But I would suggest that if members want to speak to their amendments, they move quite quickly into that process of speaking to the amendments in a committee stage. Thank you.

Members, the time has come for me to report progress.

Progress to be reported.

House resumed.