Bennett David: Questions for Oral Answer — Questions to Ministers 
Bennett David: Questions for Oral Answer — Questions to Ministers 
[Volume:665;Page:12436] 
5. 
DAVID BENNETT (National—Hamilton East) 
 to the  
Minister of Labour 
: Why is the Government extending the 90-day trial period to all employers? 
Hon KATE WILKINSON (Minister of Labour) 
: 
 Because the 90-day trial period for small businesses has been a great success. It has given employees jobs that they otherwise might not have got and it has given employers confidence to employ people and grow their businesses. All over the country employers and employees are telling me that the trial period is opening up opportunities and is being used responsibly. Those sentiments have been endorsed by a report by the Department of Labour that found up to 40 percent of employers using the trial period would not have hired the employee without a trial period being available. Indeed in today’s paper there were two letters from employers who would not have employed people if it had not been for the very successful trial period. 
David Bennett 
: What protections are available under the 90-day trial period? 
Hon KATE WILKINSON 
: The good-faith provisions of the Employment Relations Act apply meaning that all dealings between employers and employees need to be reasonable and honest. Remedies are available to employees in the case of sexual or racial harassment or any kind of discrimination. Mediation is available to the parties to help address any issues that arise. Protections regarding pay conditions leave and health and safety are unaffected by the trial period. Those protections have worked well and the trial period has generally been used responsibly by employers and employees. 
Su’a William Sio 
: How can she claim that this policy has helped those on the margins of the labour market when figures from Statistics New Zealand show unemployment for Pacific peoples has increased from 7.8 to 14 percent while unemployment for Maori rose from 9.8 to 15.4 percent and when her own department’s evaluation of the scheme to date shows that 79 percent of employees hired on the trial period were European? 
Hon KATE WILKINSON 
: This trial period is about giving opportunities to employees and those at the margins. In fact those hired under a trial period represented 14 percent of the Maori population. The trial period is about opportunities— 
Hon Darren Hughes 
: I raise a point of order Mr Speaker. I appreciate that my colleague’s supplementary question contained a lot of statistics but he clearly was talking about Pacific people not Maori people. Her response was not consistent with his question. 
Mr SPEAKER 
: I beg to differ with the honourable member. Su’a William Sio also specifically mentioned Maori statistics as well and the Minister is at liberty to choose some part of the supplementary question which was somewhat lengthy. 
Rahui Katene 
: How many Maori started employment under the new scheme and how many if any Maori were kept on after the 90-day trial period? 
Hon KATE WILKINSON 
: It is not possible to say exactly how many Maori have used the 90-day trial or were kept on after the trial. I expect that like all New Zealanders Maori where appropriate have taken up and will take up the trial period opportunity because it gives them a good chance to get a job. As mentioned in my earlier answer according to the department study 14 percent of those hired on a trial period were of Maori ethnicity. 
Hon Trevor Mallard 
: Do the good-faith provisions override the employer’s rights to dismiss without giving a reason? 
Hon KATE WILKINSON 
: The good-faith provisions have been preserved in the legislation. In particular section 4(1A)(a) and (b) of the Employment Relations Act regarding the duty of good faith is retained for trial periods. Paragraph (b) “requires the parties to an employment relationship to be active and constructive in establishing and maintaining a productive employment relationship in which the parties are among other things responsive and communicative;”. That is protected in the trial provisions. 
Hon David Parker 
: I raise a point of order Mr Speaker. Mr Mallard’s question asked whether those good-faith provisions override the employer’s right to dismiss without giving a reason. It was a very straight question; it was a very narrow question. It has not been addressed. 
Mr SPEAKER 
: The member has made an interesting point; I appreciate that absolutely. I may be wrong here but I suspect that the member is asking the Minister to give a legal interpretation of the statute. Of course Ministers are not in a position to do that. The Minister has in answering the question outlined what the statute says and I am presuming it is then a matter of legal interpretation as to exactly what that statute permits and what it does not permit. That is why I believe that the Minister has reasonably answered the question. 
Hon David Parker 
: Further to the point of order— 
Mr SPEAKER 
: I will hear the honourable member again because it is an interesting issue. 
Hon David Parker 
: In response to the original question that the Government asked of itself the Minister said that good-faith provisions applied implying that the employer did not have an unambiguous right to dismiss without giving a reason. My colleague Mr Mallard asked a specific question from a policy perspective; it is not a legal question. He asked whether the good-faith obligation that the Minister referred to overrides the employer’s right to dismiss without giving a reason. I submit that it is a very specific and appropriate policy question. 
Mr SPEAKER 
: As the member should be aware having been a Minister the point is that if the law does not actually say that in those words then it is a matter of interpretation. Ministers have to be careful not to seek to interpret what the statute says. That is why I feel it would be wrong of me to insist on the Minister giving a particular answer to that. She has cited what the statute says and it is then up to interpretation as to whether it means something can or cannot happen. 
Hon Trevor Mallard 
: Is it the Government’s policy and was it the Minister’s intention as she introduced the 90-day legislation in 2008 for the good-faith provisions to override the employer’s rights to dismiss without giving a reason? 
Hon KATE WILKINSON 
: When the 90-day trial was first introduced it was very specific. It retained the good-faith provisions contained in section 4(1A)(a) and (b) and it excluded paragraph (c) which relates to access to information and opportunities to comment because of the time frames of that which were some weeks 60 days for some reasons and which would actually be too prescriptive in relation to the process. 
Hon David Parker 
: I raise a point of order Mr Speaker. Mr Mallard asked whether the policy intention was that the good-faith provisions override the right to dismiss without notice. That is the point of contention here. The Minister has been asked this question on two occasions; it is a central issue concerning this legislation. It is now being applied to all other groups— 
Mr SPEAKER 
: I think the member has made his point without needing to go on any further. On this occasion the Hon Trevor Mallard asked exactly what the Government’s intention was in respect of those issues. I do not believe that the Minister has on this occasion answered that question—the answer must be about what the Government intended. It is a relevant issue and there is a genuine public interest in that issue. The question is not asking the Minister to interpret a statute; it is asking what the Government’s intention was when it introduced the statute. I invite the Minister if it is possible and in the public interest to answer that question. 
Hon KATE WILKINSON 
: It is the Government’s intention that we have employment legislation and an employment regime that is flexible and is fair to both employers and employees. The idea of the 90-day trial was to give employers the confidence to take on new employees and to give employees the opportunity to get their foot in the door. If for any reason the employment relationship was not working the relationship could be terminated without the need to go through the prescriptive dismissal process under the legislation. 
Hon David Parker 
: I raise a point of order Mr Speaker. It would be perfectly permissible for the Minister to say “I don’t know.” But the Minister has not addressed— 
Mr SPEAKER 
: The member is questioning whether the Minister has answered the question. What I might do is invite the Hon Trevor Mallard to repeat his question because the question was commendably brief and to the point. I invite the Hon Trevor Mallard to repeat his question. 
Hon Trevor Mallard 
: The first part will not be an exact repeat because it was not written— 
Mr SPEAKER 
: In so far as the member is able. 
Hon Trevor Mallard 
: Was it the Government’s intention as it introduced the 2008 legislation that the good-faith provisions override the employers’ rights to dismiss without giving a reason? 
Hon KATE WILKINSON 
: The Government’s intention when it introduced the 90-day trial was that the duty of good faith did actually stay and was there for the protection of parties in terms of paragraphs (a) and (b) of the legislation. They were specifically retained. 
Hon Phil Goff 
: I seek the leave of the House to table an article from Lawlink saying that under the trial period the employer does not have to tell the employee of the decision to terminate that employees have no right to comment and that they are not able to request the reasons for their dismissal. 
Mr SPEAKER 
: Leave is sought to table that document. Is there any objection? There is no objection. 
Document by leave laid on the Table of the House. 
Jacinda Ardern 
: How can she claim that the 90-day trial will provide real opportunities for people at the margins of the labour market including young people when a quarter of those who did get jobs under this scheme have since been fired and there has been a 12 percent increase in youth unemployment since this policy was introduced? 
Hon KATE WILKINSON 
: The report actually said that three out of the four had been retained. In relation to the one out of the four it was not a question of firing. In one case it was because the employee’s family did not want the employee to be employed. 
David Bennett 
: What reports has she seen about the 90-day trial period? 
Hon KATE WILKINSON 
: I have seen an editorial from the Christchurch  
Press  
noting that “Especially for those with limited skill levels or work experience the scheme can spell the difference between getting a foot in the labour market door and lingering on the dole.” The  
Herald on Sunday 
 wrote that “Anything that encourages an employer to take a punt on a new worker and in particular to give a chance to someone who shows promise but lacks credentials must be worth trying. It defies common sense that cost-conscious bosses will casually sack someone they have spent 3 months training.” We have also had support from a surprising but welcome source. When asked about the 90-day trial period the former president of the Labour Party Mike Williams said: “I don’t think the unions are going to win the argument.” Mike Williams understands that the public take a common-sense approach and would prefer to give workers a go rather than leave them locked out of the labour market. 
Carol Beaumont 
: How does she think allowing all employers to fire staff without reason within 90 days will encourage investment in training and upskilling in the workplace? 
Hon KATE WILKINSON 
: This policy is about giving opportunities. This is a policy in relation to hiring staff yet the Labour Party considers it is a policy relating to firing staff. If we look at the 40 percent of employers who would not have taken on an employee without a trial period we see that that in itself is indicative of the success of the policy. 
Carol Beaumont 
: I raise a point of order Mr Speaker. My question was quite specific. It asked how this policy will encourage investment in training and upskilling in the workplace but I do not believe the Minister touched on either of those points. 
Mr SPEAKER 
: Members asking questions need to be aware that when they ask for Ministers’ opinions about things like that they will not always get the answers they seek. Today members have had a very very sharp lesson in how to ask tough questions. 
Carol Beaumont 
: Can she confirm that someone can be dismissed because first that person asked for some time off; second he or she questioned a manager’s decision; or third the boss’s golf partner’s son needs a job; and does she consider that to be fair? 
Hon KATE WILKINSON 
: I am not going to comment on hypothetical situations that require interpretation of an employment contract the Employment Relations Act and actual conduct that happened in the workplace.