Beaumont Carol: Employment Relations (Secret Ballot for Strikes) Amendment Bill — In Committee 
Beaumont Carol: Employment Relations (Secret Ballot for Strikes) Amendment Bill — In Committee 
[Volume:676;Page:21555] 
CAROL BEAUMONT (Labour) 
: 
 I rise to speak to clause 3 of the Employment Relations (Secret Ballot for Strikes) Amendment Bill which is one of the worst pieces of legislation I have seen come into this House. It is bad because it is so completely unnecessary and because it is probably the worst bill I have ever seen in terms of drafting. I was on the Transport and Industrial Relations Committee which dealt with this bill and when it came through it was so poorly drafted that its meaning was that there had to be a ballot. It did not matter what the conclusion of the ballot was; there just had to be a ballot. There could be a ballot and the vote could be lost but the union would still comply. 
Anyway going to the principles of the Act— 
Jo Goodhew 
: I raise a point of order Mr Chairperson. I seek your reassurance that we are talking about clause 3 or am I mistaken? 
The CHAIRPERSON (Lindsay Tisch) 
: We are talking about clause 3. I indicated to a previous speaker to come back into line. The member in charge of the bill did some rebuttal and that was acceptable. I have allowed some leeway. But we are on clause 3 and I do ask that we focus on that from now on. 
CAROL BEAUMONT 
: Thank you very much. That is entirely what I was going to do as I said when I stood up I say to the whip opposite. Let us talk about the principal Act shall we? Clause 3 of course is “Principal Act amended”. I will make sure that I do a very thorough analysis of the principal Act for the whip opposite. 
The principal Act that is being amended is the Employment Relations Act. It is very important legislation because it was a fundamental shift from what was one of the worst pieces of legislation this country has seen. That legislation caused genuine grief and trouble and led to a low-wage economy. It was of course the Employment Contracts Act. 
The Employment Relations Act 2000 which is the principal Act this bill seeks to amend is a substantial Act of Parliament. I thought I would just talk a little about the objects of that Act then link to how this bill relates to those objects I guess and talk about the implications of those objects for this bill. The object of the Employment Relations Act under section 3 is to “build productive employment relationships through the promotion of good faith in all aspects of the employment environment and of the employment relationship—”. That is done by certain things such as “by recognising that employment relationships must be built not only on the implied mutual obligations of trust and confidence but also on a legislative requirement for good faith behaviour;”. This is relevant to strikes so I will link these two things together. 
Let me finish by talking about the other objects of the principal Act that we are amending. Secondly it achieves its object “by acknowledging and addressing the inherent inequality of power in employment relationships;”. I do not think that members on the other side of the Chamber quite grasp that: there is actually an inherent power imbalance in employment relationships. 
Thirdly the bill serves to promote collective bargaining. The strike question is absolutely linked to collective bargaining because the right to strike under the Employment Relations Act is really constrained to two main areas. The first is around collective bargaining. When one is in the bargaining period one has the legal right to strike under New Zealand law. The second main occasion when one has the legal right to strike in New Zealand is over a health and safety matter. The objects of the Act also include “protecting the integrity of individual choice” which might be relevant. Members opposite might say that that is what this bill is about so we will come back to that as well. Further objects are “promoting mediation as the primary problem-solving mechanism; and … reducing the need for judicial intervention;”. Those are very interesting and I will come back to those. 
The other main object is to “promote observance in New Zealand of the principles underlying International Labour Organisation Convention 87 on Freedom of Association and Convention 98 on the Right to Organise and Bargain Collectively.” As I have said strikes are related to the question of bargaining collectively. 
Let us look at what those objects mean in relation to this bill which serves to amend the principal Act the Employment Relations Act. I know for a fact that the good-faith relationships that are referred to in the object of this Act apply in multiple ways. For example a union has a good-faith relationship with its members a union has a good-faith relationship with the employer and so on. An employer has a good-faith relationship with employers’ organisations. It is kind of balanced; all parties have good-faith obligations to each other. 
The reason I point that out is that unions do have a good-faith obligation to their members. For argument’s sake let us say that a union official was to force a member to take strike action. I do not believe that that is actually possible and I have been a union organiser myself but let us say that it is possible. In fact that member has the absolute right under the Employment Relations Act to say that their union is not acting in good faith towards them because it was forcing them to do something they did not want to do. The member would actually have a legal remedy for breach of good faith. That exists already. 
The other thing that is particularly interesting is the issue of reducing the need for judicial intervention. Because the Employment Relations Act is about relationships—the wording of the bill was quite deliberate—the idea was that the employment relationship would be based on good faith and parties would try to deal with any problems at the lowest possible level. That was part of the underpinning basis of this legislation. That meant that the problem was ideally dealt with on the shop floor by having a conversation and if it could not be sorted that way both parties would go into mediation or get some assistance like that as opposed to getting into a legal situation. 
One of the real concerns that many of us had is that the bill that Tau Henare is putting up will actually give employers the right to take legal challenges against a union’s strike ballot. There have been some quite heavily contested collective bargaining situations in New Zealand’s history where workers are well organised they are in a union and they are trying to improve their lot but unfortunately the employer is not coming to the party. They are not making progress and the workers decide to take strike action to put a bit of pressure on. That is one of the two main reasons as I said earlier that someone can legally take strike action in New Zealand. Under this legislation they would conduct their ballot. Actually as my colleague and friend Darien Fenton has said that would be the case anyway because that is what unions already do. Under this legislation they would conduct their ballot. This amendment bill will give the employer the right to then intervene and have a legal argument about whether that ballot was conducted correctly. We know—and this was drawn to the select committee’s attention; I am not making this up—that in a number of quite significant cases overseas that is precisely what has happened. Employers have used that sort of process to intervene judicially to go through a very long and costly legal challenge around the strike ballot and to actually undermine the workers’ ability to organise and collectively bargain. That is one of the genuine worries that people have about this bill. 
The Employment Relations (Secret Ballot for Strikes) Amendment Bill amends the principal Act the Employment Relations Act but in my opinion it is fundamentally at odds with the objects of the Act it is amending. I do not know—I am no expert on these things—but it seems pretty odd to amend an Act in a way that is completely counter to the objects of that Act. 
Just to reinforce that point it explicitly says in section 3(a)(vi) of the principal Act the Employment Relations Act that the object of the Act is to reduce the need for judicial intervention. My contention is that this bill potentially undermines that section in the Employment Relations Act. Certainly it is unnecessary given the provisions in section 3(a)(i) about employment relationships being based on good faith and the requirement for a union to act in good faith towards its members. Arguably and quite compellingly there is a clear requirement on unions to have a democratic process by which to make a decision around taking strike action. Funnily enough that is what they do. Anybody who is involved in employment relations will know that in collective bargaining when the issue of strike action comes up there will be a secret ballot. So this bill is unnecessary. 
I think it is very interesting that none of the members opposite—ACT or National—have thought about the other side of the equation. As I said the Act itself is quite balanced. It puts these requirements on unions and workers but also on employers. Yet this bill fails to put any requirements on employers.