Mallard Trevor: Employment Relations Amendment Bill — Second Reading In Committee 
Mallard Trevor: Employment Relations Amendment Bill — Second Reading In Committee 
[Volume:651;Page:422] 
Hon TREVOR MALLARD (Labour—Hutt South) 
: 
 Given that Part 2 is the substantive part of the bill—we have got past the minor procedural part and I expect the debate on this part to be proportional—I want to start running through some of the many amendments that Labour members are moving in order to clarify the bill and in fact to hold the Minister of Labour to account. 
We have canvassed substantially already in the debate on Part 1—and I thank the Chair for his generosity in letting us do that—the question of mediation. We had one explanation from the Minister but it was not adequate. It is clear that this bill uses the term “employee” for someone whose employment has been terminated. Clearly at the point that people’s employment has been terminated they are no longer employees. The substantive Act in the mediation section refers to a person in an “employment relationship”. Clearly an “employment relationship” can be a relationship that has broken down—the person is not an employee. The other important point is that that person then has the right to take a case through further stages whereas someone on one of these trial periods does not have the ability to do that. 
Another amendment in my name makes it clear that an employer cannot make a trial period provision a condition of employment. Basically if employers try to say “take it or leave it” they will fail. That was the problem with the Employment Contracts Act. Many employers had a “take it or leave it” contract. My amendment makes it clear that an employer cannot make a trial period provision a condition of employment. 
Another amendment makes it clear that the notice of termination has to be in writing. There is no requirement under the legislation at the moment to give the notice of termination in writing; it can be given verbally. This amendment makes it clear that it must be written. 
Another amendment makes it clear that there are some very limited requirements on employers before the personal grievance rights apply. There are a couple of things. The first is that if employers have a problem with employees they have to give them a note that says so and they have to give them some time to sort out the problem. If someone is on a trial period and it is clear that an issue is developing with the quality of that person’s work or within the employment relationship the employee is given a note that says so and is given a few days to sort the issue out. Again I think that is pretty minor and pretty reasonable. 
The next one requires that employees whose employment is terminated under the probationary period provisions are informed in writing of the reasons for that termination. That again is something that is fair. Assuming that the employees could go to mediation—and our argument is that at the moment under this bill they cannot—it gives them something to consider when deciding whether they should do that. 
Another of the amendments which my colleague Chris Carter will speak to fairly extensively later might be referred to as the “Anne Tolley amendment”. It is the one that makes it clear that people working within schools will be exempted from the probationary period provisions. I want to say as a former Minister of Education that I think about a third of schools have 20 or fewer employees and they are most often the schools that struggle to find teachers. They are often in remote areas they are often smaller schools and they are more likely to have boards of trustees that are involved in what might be described as parish issues or local dissent. Sometimes generations of dissent can be played out within the board of trustees. People sometimes can have a down on teachers. I think there will be a very real recruitment problem. There is already a recruitment problem in many of our smaller schools but this bill will add to the problems and it will drive down the quality of education within those schools. 
The effect of the amendment is to make sure that what Anne Tolley has committed to is incorporated— 
Hon Chris Carter 
: Promised at least twice. 
Hon TREVOR MALLARD 
: Promise commitment—she made it clear that people within schools would not be affected by this legislation; that there would be an exemption. We are trying to make sure that her promises are kept. 
The next amendment proposed is to ensure that the probation period applies to a position rather than a particular individual. This means that the trial period must be fully disclosed in the provision description and in the material given to applicants seeking the position. It also means that it cannot subsequently be added in. It also cannot be added into the employment description later in the process or into any subsequent employment agreement. This amendment makes the situation very very clear to people deciding whether they should apply for a position because it makes clear the intent of the employer—the employer’s choice I think it is fair to say—on this matter right from the beginning. 
I think it is fair to say that we have reasonable expectations of a reasonable Minister saying “Yes that’s what I promised.” All of those amendments are what the Minister promised and what she committed to and it is our expectation that she will look carefully at them and that there will be reasoned discussion. I say to the Minister that if she thinks that we have not quite got those amendments right if she thinks that they could be improved in the drafting that Mr Iles or his successors in these matters could give us a hand in order to make sure that this bill works better—that her intent and our intent are better reflected—then I am quite willing to have a discussion and to have amendments made to my amendments. In fact I would be happy for the Government to take over the amendments. It is not a matter of my getting credit for improving the bill; it is a matter of making sure that the bill is improved. 
There is an amendment that I think is relatively unlikely to be picked up by the Government but it is worth a crack anyway. The amendment is to change the wording in the heading of new section 67A inserted by clause 7 from “90 days” to “1 day” and within section 67A(2)(a) to delete the specified period of “90 days” and to substitute “1 day”. 
That is the first set of amendments to this bill. The proposal we have is that as an Opposition between now and about lunchtime tomorrow we will work our way through this set of amendments and then we will work through the second set which are focused on the latter part of Part 2. But I reiterate to the Minister through you Mr Chair that this part is the operative part of the bill. I think that is something that Mr Mapp accepts. This is the guts of the legislation. This is the only opportunity given the lack of select committee consideration for careful examination of the bill. It is the intention of Her Majesty’s loyal Opposition to be very very thorough as we work through it. 
Having said all of that again I want to make it clear that even if the Government accepts every single one of these amendments including the one that switches the trial period from 90 days to 1 day the Opposition— 
Hon Ruth Dyson 
: I don’t think so. 
Hon TREVOR MALLARD 
: The member does not think it is likely? Even if the Government accepts every single one of the amendments this legislation is wrong in principle and it is wrong in process and the Opposition will continue to vote against it right through all further stages. I want to make it clear that it is my understanding that so far 27 members of the Opposition would like to speak on this part. 
Hon Clayton Cosgrove 
: At least—at least. 
Hon TREVOR MALLARD 
: I am not saying they will speak only once—not 27 speeches but 27 separate members who would like to take a call on this bill. And by the time that we have finished with this part three more Labour members will have made their maiden speeches.