Crimes (Theft by Employer) Amendment Bill

Members, the House is in committee for the Crimes (Theft by Employer) Amendment Bill. We come first to clause 1. This is the debate on the title. The question is that clause 1 stand part.

Point of order, Mr Chair. I seek leave for all provisions to be taken as one question.

Leave is sought. Is there any objection? There is no objection—[Interruption] Oh, there is objection. The question is that clause 1 stand part.

Sorry, Mr Chair. I got confused by my diligent colleague from Takanini, who I thought was going to ask the first question.

First of all, can I just take the opportunity to congratulate the member Camilla Belich for taking this diligently through the hard-working Education and Workforce Committee and the various oral submissions and written submissions that we had the opportunity to engage in, and for the thoughtful debate we had through the select committee stage.

My first question just relates to why the member felt it appropriate for a bill of this nature, which is relating to theft, to be dealt with by or through employment law components, I suppose. Rather than it, for example, being a personal grievance and being dealt with purely in the realm of employment law, this particular amendment will amend the Crimes Act and, therefore, it becomes a piece of criminal legislation, I suppose, and it will sit within that realm.

It was dealt with by the Education and Workforce Committee, and I feel that it would have more naturally sat as an employment law issue; as something in the realm of a personal grievance and something that could have been dealt with by the likes of more traditional personal grievance - type processes. Rather than that, we’ve got a piece of legislation that is going to involve other agencies such as the police and that could involve the courts because it is a crime piece of legislation. Now, ultimately, for how often the Opposition members talk about their concerns around us filling up our prisons with too many prisoners, this could ultimately result, potentially, in people filling up or clogging up our justice system.

I have a number of questions as we go through the different parts of this amendment this evening. My first question is in relation, as I say, to why we are dealing with this under criminal legislation, as opposed to employment law, purely. I’ll leave it at that point and will ask my next question in, hopefully, a few minutes’ time. Thank you.

Thank you, Mr Chair, and thank you to the member Carl Bates for that question. The first part of his question, on why it’s in the Crimes Act as opposed to a personal grievance, is really the entire purpose of this bill. It’s to recognise the fact that there isn’t a criminal sanction available for employees who suffer theft as a result of the actions of their employer. That’s why it’s in the Crimes Act.

In terms of the Education and Workforce Committee, that was referred to the Education and Workforce Committee by the 53rd Parliament, but as the member is aware, the Ministry of Justice did provide advice to the committee and so was well served from that purpose.

In terms of the wider issues around theft by an employer being a crime, this is not new in New Zealand law. There are existing provisions in the Immigration Act which criminalise theft by an employer for recent migrants, and often—and inequitably, in my view—employees who do steal from their employers are referred to police and treated in the criminal law. This bill is merely about addressing that imbalance.

I just will remind the member to be aware that this is about the title, this section, having voted to do it section by section. I did allow it, but just any further question, be reminded that we are doing this part by part.

Thank you, Mr Chair. Point well noted. I will focus on that first part, then, being the title. I suppose, when looking at the title—and while we didn’t discuss this in any depth in the Education and Workforce Committee, I think it is important for us to consider, at this point in this committee of the whole House stage, what the appropriate title for this bill could be. I’ve given some thought to the member’s intent behind bringing this piece of legislation to the House and whether the focus on employer or employee—who it is exactly that the member is looking to protect or create harm for through this amendment.

I wondered if this title, Crimes (Theft by Employer) Amendment Bill, would more appropriately be named something like the “Crimes (We Think All Employers Are Thieves) Amendment Bill”, because, certainly through the process of the select committee, it became clear that a number of the submitters seem to think that it would be natural for employers to want to do this and that employers don’t value the contribution that their employees make. Indeed, during the select committee stage, as some of my colleagues may recall, there was no data able to substantiate the size of the problem that the member is trying to solve.

That’s particularly concerning to us on this side of the committee, as we think about what we can do to get New Zealand going, to make sure that we improve productivity in this country, that we enable, that we can focus on raising wages and raising salaries of employees. Frankly, when I’m door knocking, like I was on Sunday, in Whanganui, meeting members of my own constituency, the everyday worker’s focus was on how their wages can increase. My concern with the title of this bill is it suggests something that is softer than the underlying intent—certainly, some of the submitters’ views towards employers, and maybe I could go as broadly as saying some of the unions who submitted on this bill.

I think if the true intent, the true understanding or feeling behind those that did support, or many of those that did support, this amendment bill was appropriately reflected in the title, it may encourage some of my colleagues around the House who may be inclined to vote for this amendment bill to reconsider their position, because I’m not sure that anyone in this House really, actually, wants to call employers thieves. I think that there is an intent—a feeling, if intent is too strong a word—behind this amendment bill that there are many more employers that have this intention than was the reality. Certainly—and I go back to the submission process—there wasn’t data that was able to be provided that substantiated the true size of this problem, if there is really a significant problem at all, that was able to be provided to the select committee.

I would encourage the committee and the member to consider ensuring that the amendment bill reflects the real feeling behind those who wanted this amendment to pass, and I would be interested in the member’s view of reflecting the true intent of the title in the title itself, as I have suggested. If the member is not open to my first suggestion on the title of this amendment bill, I’m happy to provide alternative suggestions as the course of this evening goes on. Thank you.

Thank you, Mr Chair. I don’t think that that is a good suggested alternative name for the bill. I think this is actually a really well-named bill, and so I don’t consider that we should be considering any alternatives to that.

I would like to just reject Carl Bates’ allegation that this is about calling employers thieves, or that there was any suggestion that all employers are involved in this type of behaviour. Of course, we know that the vast majority are very good employers, just like most New Zealanders, but there is a place for the criminal law in New Zealand when crimes are committed. It is somewhat ironic to hear members of the Government side complaining about a bill like this, which would simply treat employers in the same way that employees are treated—an effective example of balance, which from today and in recent days we’ve been hearing the Minister for Workplace Relations and Safety talk about. This is a perfect example of balancing fairness for employers and employees.

It is a tough-on-crime bill. It is very ironic to hear members of the National Party stand up and take calls wanting people who have committed crimes against their employees not to face justice as a result of that; that is the effective nature of that submission and something that I reject.

I also want to thank all of the submitters for submitting on this bill. It’s not an easy thing to submit on a bill in Parliament. I reject the member’s characterisation of those submissions, and I also would like to refer the member to the information provided by the Ministry of Justice in their report to the Education and Workforce Committee, which set out in detail the data available in relation to wage theft cases in New Zealand.

CHAIRPERSON (Greg O’Connor): I just want to remind members that it’s unusual that we’re having the title and the commencement at the beginning, so just a reminder that we’ll be strict on what we’re actually going to be discussing in the question.

Thank you, Mr Chair—appreciate that. Firstly, like my colleague, I’d like to congratulate the member for having her bill in the Parliament. Well done. It must be a real privilege to be able to do that.

Look, I suppose I would question the title of the bill. I do wonder whether it’s aptly named, having sat through the submission process in the select committee and listened to the submitters. I do just wonder whether it may be better named “Crimes (We Don’t Trust Employers) Amendment Bill”, because that was the kind of theme that actually came through. It would probably better reflect where this bill is actually coming from; it’s about lacking trust in employers, and that puts a lot of extra pressure on employers. If we’re going to name a bill, we should have the name reflect what it actually is and what it actually does.

Actually, the other word in there is “Crimes”. Is that an appropriate thing to note and call where you’re talking about people that actually may make a mistake around the payment or otherwise—

Hon Dr Duncan Webb: Read the legislation!

GRANT McCALLUM: —of their wages and salaries? I think “Crimes” is far too strong. It puts a lot of unnecessary pressure on to the—

Hon Dr Duncan Webb: This is “intentionally”—

GRANT McCALLUM: This is about the title of your bill. It’s about the title. The honourable member on the other side doesn’t seem to like what I’m saying, but that’s fine. This is all about making sure that we get the appropriate title, and it’s really important that we do that. I’m disappointed that the member can’t see the logic of that. Maybe if that member had sat through the process themselves, they would have actually been able to see what was being said and then would appreciate the new title that I’m suggesting. It is about trust and the lack of trust that some see in their employers. I think that is a sad thing in our society.

I really would urge the member to consider renaming this bill in a more appropriate way because I think, actually, what it says now is far too strong on employers. Thank you, Mr Chair.

Thanks, Mr Chair, and thank you for your guidance regarding the stage that we are at, at this point in the committee of the whole House, and I look forward to taking your guidance as we move through, that we’re moving through at a pace that you are comfortable with. For now, I take it we are still considering the title as the first part—if I’m mishearing you, Mr Chair, I’m happy to take your guidance on that.

The title itself cannot be disconnected from the intent, so I just want to focus for a moment on the lack of clarity that came through the submission process about the point at which this bill would be triggered. This, Mr Chair, relates to the title, and an alternative concern I have around the underlying bill, particularly in relation, as I say, to when an employer could be caught out. By way of example—and I need to share the example in order to get to the point of sharing the potential title that I would ask the member to consider as an alternative to the two that we have just suggested—an employer through, for example, a mishap in banking, didn’t pay their employee.

Under the current wording—and I appreciate that there is an amendment to the amendment, and that suggests that maybe this bill is not drafted as well as it could be, because we’ve got to now make some amendments to the draft bill—if an employer didn’t pay their employee because there was a mishap with banking, or let’s say, for example, they thought they had enough money in their account and it happened that there wasn’t and employees didn’t get paid and they didn’t realise that this was the reason and it took some time to sort it out, that the employer could be caught out as having stolen from their employees.

I wonder if the member would consider as an alternative, as an amendment to that, the “Crimes (Theft (Even if it is an Accident) by Employer) Amendment Bill, because I am concerned—as came up in the amendment bill—about what the trigger is for when an employer could be caught out in terms of having “stolen” from their employee. I think that is the last of the suggestions I have at this stage around the title and will be happy to move on to the substantive after the member has responded, if she so wishes, to our suggestions. Thanks, Mr Chair.

I move, That debate on this question now close.

Thank you, Mr Chair—thank you, Mr Chair. It’s so rare that I stand and take a call, other than to move a motion like the previous member just did. To be asking a question on this very important thing which is the title of this bill—because names matter and words really matter. I just wanted to ask: in your consideration of the use of “theft”, given that some of these things are happening in regard to people’s pay, potentially, or other benefits in their employment, did you consider using the word “pilfer” or “pilferage” by an employer? That is really a much better description of the kinds of things that we are dealing with. Or “peculation” or “rapacity”—these are words that potentially could have been better used.

This is the kind of thing where a good descriptive word can help to better give your intent of what you mean when it comes to the kinds of low-level things that we actually see happening. It was mentioned by my colleagues that there’s not really much evidence of there being a huge number of crimes in this matter or a big problem that we’re trying to solve. I just think that this is one of those examples, potentially, where we’ve got a bill that’s looking for a problem to solve, and it’s not necessarily that we’ve got a huge background problem here that we’re trying to amend. Just thinking further on these titles and these words that you’ve got, I’m just really interested to see how much you dug into that and whether you’ve given any consideration to anything else. I’ll leave it there for you to give us your wisdom.