Employment Relations Amendment Bill — First Reading Second Reading 
Employment Relations Amendment Bill — First Reading Second Reading 
[Volume:651;Page:318] 
Employment Relations Amendment Bill 
First Reading 
Hon KATE WILKINSON (Minister of Labour) 
: 
 I move  
That the Employment Relations Amendment Bill be now read a first time. 
 This bill amends the Employment Relations Act 2000 to implement trial employment periods for new employees of small and medium-sized businesses—those employing fewer than 20 employees—and to support Government policy on KiwiSaver which is being enacted through amendments to the KiwiSaver Act 2006 by repealing those provisions of the Employment Relations Act that deal with KiwiSaver.  
We are committed to getting New Zealanders into jobs and providing the right encouragement to employers to employ them. This is important in the current challenging economic times. Given the pressures that employers and employees at small and medium sized businesses are under the Government believes that it is important that the measures contained in this bill are acted on quickly. This bill will increase the willingness of employers to take on new staff. Greater flexibility for employers will provide much-needed assistance. The Government’s policies on both KiwiSaver and the 90-day trial periods were well signalled prior to the election.  
Firstly the Government is making changes to the KiwiSaver scheme through the omnibus tax bill. One of these changes will require employer contributions to KiwiSaver to be on top of an employee’s existing pay when the employee joins a KiwiSaver scheme. This change will safeguard the ability of employers and employees to negotiate in good faith changes to this arrangement. There will therefore no longer be a need for similar KiwiSaver discrimination provisions contained in the Employment Relations Act.  
Secondly this bill provides for trial periods of up to 90 days for new employees who want to be given a go and who want the opportunity to get their feet in the employment door to back themselves to say “Give me a go and I will prove how good I am.” There are no provisions for trial periods in our existing employment legislation. In fact we are one of the few countries internationally that do not have a trial period for employees. This bill will enable employees in small to medium sized enterprises—those with fewer than 20 employees—to determine a prospective employee’s suitability for permanent employment without the risk of legal proceedings for unjustified dismissal in the event that the employment relationship does not work out. It will encourage small businesses to give a new employee a go and to take on new employees.  
Accordingly under this bill a new employee who agrees to a trial period of up to 90 days will be unable to raise a personal grievance for reasons of unjustified dismissal. The introduction of the proposed 90-day trial period will encourage more small and medium sized businesses—which can find it difficult to absorb costs associated with giving new employees a go—to take on new employees. This will benefit many people at the margins of the labour market.  
This bill is not about taking away rights; it is about giving opportunities. It has safety mechanisms to ensure that it is fair and balanced and is win-win for both employee and employer.  
The bill will amend the Employment Relations Act so that an employer with fewer than 20 employees may agree in good faith with a new employee to a trial period of up to 90 calendar days as part of a written employment agreement signed by both parties at the beginning of the employment relationship. The trial period will be entered into only by agreement. No one is being forced into a trial period. No existing employees can be put on to a trial period; it is an option that will be available to employees wanting to be given an opportunity to work in small and medium sized businesses.  
Thirdly it is very specific in that it relates only to the ability to take a personal grievance for unjustified dismissal in the first 90 days of an agreed trial period. Other rights are specifically retained so that employees still have the same protections under the Act for unjustifiable action by the employer whether or not they have agreed to a trial period: the same protections against discrimination and the same protections against sexual and racial harassment and duress. These protections still remain.  
The bill preserves the right of an employee to raise a personal grievance under the discrimination provisions of the Employment Relations Act. The bill also ensures that an employer and an employee may agree to a trial period only once. So if the employment relationship ends and the employee is subsequently re-employed the option of a trial period will not be available. That means that the trial period cannot be used as for example an 89-day rollover. In other words the employer under this bill can employ an employee with a trial period only if that employee has not previously been employed by that employer.  
The bill also specifically ensures that an employee whose employment agreement contains a trial provision is in all other respects including access to mediation and including being subject to good-faith provisions to be treated no differently from an employee whose employment agreement contains no trial provision or contains a trial provision that has ceased to have effect. Mediation will be available; good-faith provisions will continue to apply.  
Finally we have stated that beneficiaries who agree to a trial period and who find that the trial just does not work out for them may then be able to return to the benefit without having to wait the stand-down period. That will give beneficiaries the confidence to step on to that employment ladder knowing that if it does not work out through no fault of their own they can fall back on the safety net of the benefit.  
This bill responds to the needs of employers in uncertain times whilst safeguarding the basic rights of employees. It is in step with international employment law and it is a simple and common-sense response to the needs of New Zealanders. The Small Business Advisory Group report in 2003-04 has as its first and foremost recommendation a trial period for new employees.  
This bill has already been extensively debated and it was consulted on a couple of years ago when there were 618 submissions to Dr Mapp’s member’s bill. This bill before the House addresses the concerns expressed during that consultation. The bill will give businesses the confidence to take on new staff and it will give new employees the opportunities to get on the employment ladder. It will provide opportunities for those who might suffer disadvantage in the labour market—for example employees who are new to the workforce or returning to the workforce after some time away or specific groups at risk of negative employment outcomes. I commend this bill to the House. 
Hon TREVOR MALLARD (Labour—Hutt South) 
: 
 That is the first speech from the new Minister of Labour a former lawyer for the Exclusive Brethren and now the list member for the Exclusive Brethren. And it is a shameful piece of legislation she is bringing in. 
Hon Kate Wilkinson 
: I raise a point of order Mr Speaker. I ask the new Opposition spokesperson for labour to withdraw and apologise. I take offence at the statement as to whom my religious beliefs relate to and I take offence at the breaching of confidentiality of professional privilege regarding whom lawyers in their professional duties act for and whom they do not. I ask the member to withdraw apologise and not make those misrepresentations to the House.  
Mr DEPUTY SPEAKER 
: The member has taken offence under Standing Order 116. Would the member like to withdraw those comments. 
Hon TREVOR MALLARD 
: No no; I would not like to. Speaking to the point of order I say that the fact that someone takes offence does not automatically mean that when someone has made a factual comment—it is not a matter of opinion; it is a matter of fact—that comment has to be withdrawn. 
Mr DEPUTY SPEAKER 
: The member has taken offence and has asked that you withdraw and apologise. I ask you to do so.  
Hon TREVOR MALLARD 
: I withdraw and apologise. I can understand the Minister of Labour being very embarrassed by her past and by the way it is creeping into the way she is applying her views already.  
This bill is absolutely unnecessary. New Zealand has probation periods. We have had probation periods in New Zealand for years and years. People use them and they work well. But this bill takes away from the people who are on probation the rights and privileges they have. This bill is not about setting up trials; it is about taking away from the people who are on trial any rights they themselves have.  
The Minister very generously says that they can go to mediation. They can go to mediation but not have any rights in that situation or in any consequential court action. [ 
Interruption 
] The Minister says it is a privilege to go to mediation. To go to mediation and to be guaranteed to fail is something that is unbelievable in a modern democracy. That Minister forgets that New Zealand is fourth in the OECD reports for being the easiest country in which to employ and sack people. It is fourth in the OECD. We are already a very flexible country compared with the vast majority of our competitors. I say to that Minister that maybe we should be focusing a bit more on what people do at work—on getting them better trained on lifting their skills—and on having capital investment rather than sacking people in the way she wants to do.  
This bill will not promote labour market flexibility. In my view it will do the opposite. What will obviously happen is what happened with the Employment Contracts Act. Everyone said that that was about good faith and having a choice— 
Hon Members 
: Yeah yeah! 
Hon TREVOR MALLARD 
: —yeah yeah!—but people had the choice stuck in front of them: “Sign this or no job.” But if someone were a highly skilled worker with management experience whom a small business really wanted and needed would that worker take the risk to go to that small business? Would that worker leave a good job—leave a high-paying job—in order to shift to a place where for the economy it could be better for that worker to shift? Having flexibility in small business is a good thing but this bill will mean that a lot of people—both people from within New Zealand and people who are contemplating coming to live in New Zealand—will say “No thanks! We’ll stay where we are.” So if we want a modern flexible dynamic economy this is the sort of bill that will work absolutely against that. [ 
Interruption 
] The member says that people will have to agree with it. The member was one of the main promoters and practitioners in the area of the Employment Contracts Act and she knows what happened under that Act. People got a “take it or leave it” approach to employment. It was not negotiation. [ 
Interruption 
] Oh the member says they had the choice. He is right. People did have the choice. People had the choice to have a job or not have a job. And that will be the arrangement especially for vulnerable people in this particular area.  
I have a question for the Minister to answer across the House if she likes: is she backing Anne Tolley’s guarantee that teachers will not be affected by this legislation? I have looked I have searched through the bill looking for the teachers’ exemption that was absolutely promised on video—on video—by Anne Tolley.  
Hon Member 
: She’s a front-bencher. 
Hon TREVOR MALLARD 
: Anne Tolley is a much more senior Minister than this Minister of Labour Kate Wilkinson. I want to know whether she has taken into account the promises made by Anne Tolley and if there was an error whether she will support my amendment to exclude teachers when we go to the Committee stage. I want to reinforce Anne Tolley. It is a terrible bill; it is a shocking bill but I know—as members are aware—quite a lot about smaller schools. The former Prime Minister is looking at me with a certain look at the moment. But what I know is that they employ fewer than 20 people and they are often the subject of fairly intense local relationships and descent. They are not always happy situations and teachers could shift to a small school— 
Hon Member 
: 3 months! 
Hon TREVOR MALLARD 
: —for less than 3 months; the provision can be triggered much earlier than 90 days of course—get the sack and not have a job. It is unlikely to happen. So I agree with Anne Tolley’s suggestion but I want to know from the current Minister whether or not she will support that amendment. I cannot hear her—no there is not a murmur not a whisper not a word from the Minister opposite. I can see that she is nodding her head. 
Hon Member 
: She shook her head. 
Hon TREVOR MALLARD 
: It is hard to tell. She will not support the amendment but it will be interesting to see how Anne Tolley votes on that.  
Included in this bill is another shameful part of the KiwiSaver changes. The member is right. She has got her timing slightly wrong. I think the legislation she refers to as coming into the House has not only come into the House but been passed. That is just a matter of detail as far as that member is concerned. [ 
Interruption 
] I do not think that Gerry could have written that—it is even worse. But included in this bill is the removal of the provision that prevents employers from taking from employees’ salaries the KiwiSaver payment. But does the change that the National Party has promoted mean that they can do that permanently when there are wage rises or when there are changes in circumstances? No it does not. It applies only on initial employment and it does not apply afterwards.  
I want to say a quick word about process. The Minister was asked about 2 weeks ago whether this was going to be part of the 100-day programme and she said no. Kate Wilkinson said that this was not going to be part of the 100 days. She was asked last week whether it would be in the urgency motion. She said: “I do not know.” It is absolutely outrageous and unnecessary for this bill to go through under urgency. It is something where lots of people have views. It is not the same as the Mapp bill as that was introduced to the House. There are a lot of people who would like their views on this bill to be heard. It is fair to say that the National Party policy was clear; it was in that microdot somewhere on the back. I managed to get a microscope to see it. So to be fair it was signalled by the National Party. But when we made our changes when we came into Government last time we certainly had select committee hearings and to be fair when the National Party came in in 1990 it certainly had select committee hearings for its major industrial relations hearings. This National Government is not doing that.  
I ask why we are doing this. We are attacking the most vulnerable workers in New Zealand. We are stopping people from changing jobs in the way that they should and we are putting in legislation that is absolutely unnecessary because it is in the current law. 
Hon Dr NICK SMITH (Minister for the Environment) 
: 
 I am pleased to be part of a Government that is prepared to address all the elements of law that have been holding back this country of ours. Over the last 9 years the Labour Party opposite added at every possible opportunity to the costs and compliance of those businesses that we need as a country to be competitive. I was interested to hear that Phil Goff said he would be holding the Government to account to ensure that it met its promises. Well we very specifically promised we would introduce a 90-day trial period of employment the same as that in Australia and as that which is held in the UK. In fact every developed country includes in their employment law a period of trial.  
I want to set out the reasons why I think this is an important improvement for New Zealand. I acknowledge Labour members opposite. I do not think a single member on the Labour benches has been involved in a small business that has employed 20 people. I could take my entire 10 minutes and list each of the union officials in the Labour Party who believe that the unions are the A to Z of wealth creation. I say to members opposite that this Government’s employment laws are about proper balance and the 90-day trial period is a change that we need to make.  
Let me tell members some of the good reasons for this bill to become law. I served for 3 years as the Minister of Corrections. We all know that the most important element of reducing the reoffending rate for those who come out of prison is for them to be able to get into work. In fact if we look at the statistics of those coming out of prison we see that the reality is that getting back into work is the single greatest factor in reducing their reoffending rate. The very real problem that members opposite do not understand is that a small business of fewer than 20 employees constitutes the vast bulk of businesses in New Zealand. The opportunity of employing somebody straight out of Paremoremo Prison is a very real risk that many employers are not prepared to take even though it is in New Zealand’s interests that a small employer gives a break to a person coming out of prison. It is best for them it is best for New Zealand and it is particularly important if we are to reduce reoffending rates. The reality for many small employers is that they are not prepared to take the risk with those sorts of employees such as new migrants young people and ex-prisoners. That is what makes this 90-day trial period so sensible.  
I know that I am not allowed to use the “h” word but to hear Trevor Mallard raving in this Parliament about the importance of such a bill going to a select committee is truly remarkable. We are talking about the change that is being made in this bill. Did members opposite send the KiwiSaver legislation to a select committee?  
Hon Member 
: No we did not! 
Hon Dr NICK SMITH 
: Oh! Do we hear that? When Labour members were in Government they did not have to send the changes to a select committee. But now that they are in Opposition they have suddenly changed their tune. Oh what double standards! They have not been in Opposition 6 days and they have suddenly changed their view about the importance of measures being sent to a select committee.  
I want to refer to the important checks provided in this bill in respect of the 90-day trial period and I want to commend the Minister for her very balanced and sensible approach. It is right that the 90-day trial period should not be able to be used in areas such as seasonal work. We do not want the situation of a person who does 90 days of work every year for an orchardist in my electorate being determined to be a new employee and put on a trial period every time. That is not right. That would be an exploitation of the intent of the trial period. So I commend the Minister for making plain that the trial period is a one-off and is not to be repeated over and over again.  
I also say to members opposite that it is proper that this bill will not impact on the stand-down period for a person on a benefit—that is if a person who is on a benefit takes up—[ 
Interruption 
] I know that members opposite like having people on benefits. They are the anti-growth party. They are the party of envy. They are the party that would prefer someone was not working rather than being in a trial period. I have yet to hear an argument for all the beating of their chests as to why when the Australian Labor Government has a trial period in its employment law and the United Kingdom has a trial period in its employment law if we are to have an equivalent position in the New Zealand law then that is somehow an awful position to have.  
I really think that this bill exposes just how out of touch Labour is with the wealth-creating small businesses that exist in New Zealand. I expect the human resources manager of a big employer like Sealord’s to have the expertise to ensure that that employer can meet the very detailed and demanding requirements of employment law. But the reality is that businesses employing fewer than 20 people do not have a human resources manager and they have become incredibly risk-averse around employment decisions. This 90-day trial period is just what is needed to give them the confidence to take on those higher-risk employees and give those Kiwis a fair go. The real winners from this bill are not the businesses; it is those people who to get their first step on the rung of the employment ladder—people who come out of prison who come in as migrants or who are applying for their very first job—can be given the opportunity and given— 
Moana Mackey 
: No rights. 
Hon Dr NICK SMITH 
: Oh the member says “No rights.” 
Hon Member 
: She hasn’t read the bill! 
Hon Dr NICK SMITH 
: She obviously has not read the bill. The bill makes it absolutely plain that if there are issues of exploitation in the workforce of sexual harassment— 
Moana Mackey 
: So they’ll just say it’s for another reason. 
Hon Dr NICK SMITH 
: Is the member arguing that if a person on a 90-day trial is sexually harassed then they have no protections? Of course not and the member knows that. That is where her rhetoric is getting away from the facts.  
This bill is about a new Government delivering on its promises. This bill is about giving people like young people a chance to get their first foot on the employment ladder. This bill is about recognising that the engine room of the New Zealand economy is small businesses and rather than having 9 years of extra compliance costs and extra hassle this Government is about supporting small business and creating the opportunities for jobs and wealth creation. I know that members opposite do not care about small business.  
Hon PHIL GOFF (Leader of the Opposition) 
: 
 That was an angry and out-of-control speech from Nick Smith. Of course he has the right to be angry because he was not given a trial period when he was deputy leader of the National Party. He did not get 90 days; he got 14 days and he was sacked. But we do not need the protection of industrial law to stop that happening. The law at the moment states that one can be sacked for incompetence and irrationality and that was almost certainly what Nick Smith was sacked for.  
Nick Smith said that the Employment Relations Amendment Bill gives a trial period. That shows how little Nick Smith understands about the current law. Section 67 of the Employment Relations Act allows for a trial period. I tell Dr Smith that that was put into the law by a Labour Government. But the Labour Government did not say that during that 90-day period people could be sacked wrongfully unfairly illegitimately and without cause. No New Zealander believes that any Kiwi should be able to be sacked for no good cause and to have no right of redress. That is why what Kate Wilkinson said—“This bill is not about taking away rights;”—is the opposite of the truth. This bill does one major thing: it takes away the right of the ordinary Kiwi worker if a bad employer dismisses that person without cause in the first 90 days of employment to the protection of being able to take up the matter as a personal grievance or to take it to the Employment Court. Which New Zealander does not believe that it is fair that every other New Zealander should have that right of redress?  
We are fundamentally against this bill on that matter of substance. All New Zealanders who are wrongly dismissed are entitled to the protection of having an avenue of redress. That is the right— 
Hon Dr Nick Smith 
: He won’t promise to repeal it though. 
Hon PHIL GOFF 
: I do promise to repeal what the National Government is doing. It will be gone as one of the early steps of the next Labour Government in 2011.  
But I will promise that when we do that we will do it with due process because the other thing that we fundamentally object to about this legislation is that it takes away such a fundamental right of an employee without due process. Having a job is fundamental to every New Zealander. To lose that job is serious and New Zealanders have to have that right of redress. I say to Kate Wilkinson that this right is being taken away without the due process of the normal democratic procedures of this House. It is an absolute outrage as the human rights commissioner said that such a fundamental right should be withdrawn from New Zealanders without even one New Zealander having the right to have his or her voice heard before a select committee.  
We know why all bills go to a select committee. All bills go to a select committee—  
Hon Dr Nick Smith 
: When did the KiwiSaver Bill go to a select committee? 
Hon PHIL GOFF 
: All bills go to a select committee with very rare exceptions and I tell Nick Smith that there is a good reason for that. When one rushes legislation—and it is impossible to describe the Employment Relations Amendment Bill as anything other than rushed—mistakes are made. That is why every member of this House who is not a member of the executive is on a select committee: to put Government legislation under scrutiny to make sure the Government got it right. That will not happen with this bill.  
Secondly bills go to a select committee because New Zealanders have the right in a democracy when other rights are under attack to go to Parliament and present submissions. There is no justifiable reason why New Zealanders should be denied the right to have their voice heard on this legislation—no reason at all. Nor was any notice given that this legislation was to be rushed through the House. There was no notice in the Speech from the Throne. Kate Wilkinson herself said that the bill would not be part of National’s first 100 days in Government.  
National made this decision and we have to ask why. Was it because National had so little confidence in the equity of its own legislation that it did not want New Zealanders to look at it? Normally in the case of legislation like this a Government would give the chance for conflicting opinions to be heard before a select committee. I know for a fact that Business New Zealand would probably support this legislation but I heard its chief executive say on  
Breakfast 
 the other morning—I was in the studio with him—that this is the wrong way to do it. Even those who think there might be some merit in this legislation believe there is no merit in not giving New Zealanders trade unions business groups or any other stakeholders the right to have their voice heard before this legislation is rammed through.  
This Government has been so arrogant in its first week in office that Gerry Brownlee had to be shamed into putting the legislation on the Table so that the Opposition could even see it. 
Hon Member 
: At midnight.  
Hon PHIL GOFF 
: Actually it was not at midnight; it was at a quarter to midnight. I say to Mr Brownlee that suddenly at a quarter to midnight eight bills or five bills—or whatever the number of bills was—were put on the Table. So not only does this bill not go to a select committee not only are New Zealanders denied the opportunity to have their voice heard not only do members of this House not have the opportunity to carefully scrutinise that legislation but National did not even want New Zealanders or members in this Chamber to know what was in the bill until just hours before it was going to be rammed through. I say to Mr Brownlee that that is a disgrace and it is an ominous sign from a Government that has been so arrogant in its first week in Parliament of what it intends to do for the future. In Opposition the National Party said what an outrage it was if any matter was placed under urgency but although the latter stages of a bill may sometimes have gone through under urgency the Labour Government still put bills through select committee hearings.  
I endorse what the Human Rights Commission said about the process of this bill. The commission said that “rushed legislation is … risky legislation”. This legislation is being rushed. The commission said that this is such a fundamental change in employment law that it should go to a select committee. That is what the Human Rights Commission said. Its job is to uphold the rights of New Zealanders and it said that this bill should be considered at a select committee and that people should have the right to have input. The commission said that basic democracy requires “transparency participation and accountability.” The National Government is so arrogant that it is denying New Zealanders those things—transparency participation and accountability.  
The Human Rights Commission itself wanted to make submissions on this bill because it will have a particularly negative effect on vulnerable New Zealanders: school-leavers seeking their first jobs and those who are disadvantaged in the employment market. I say to Kate Wilkinson that under this legislation these people can be sacked because the employer does not like the colour of their eyes and they have no redress. It is unheard of that a Government in one of its first steps could deny people the right of fundamental justice which is that when people have been treated unfairly or wrongly they have some redress for that treatment.  
National says that this provision applies only to those firms where there are 20 or fewer workers. I ask Kate Wilkinson what percentage of New Zealanders comes into that category. This arrogant Government will deny workers in the 96 percent of businesses that employ under 20 workers their rights of protection against unfair dismissal. This Government is prepared to strip people of basic rights. John Key’s Christmas present to New Zealand workers who are already under stress because of the uncertainty of their employment future is to put them under even greater stress by removing this basic principle—this basic human right. 
SUE BRADFORD (Green) 
: 
 If the Employment Relations Amendment Bill that is in front of us today is indicative of the National Government’s intended approach to both democratic process and the rights of workers I think some of the people who so happily voted for Mr Key and his colleagues a few weeks ago may find themselves waking up to some rather unpleasant realities in the months ahead. There was no word in National’s 100-day plan that this would be one of the first things it did nor was there any indication that a measure with such drastic impacts on literally hundreds of thousands of workers would be pushed through under urgency in the first week of Parliament without any opportunity for public submission or debate whatsoever.  
Although the Green Party accepts that a major select committee process did take place a couple of years back when Wayne Mapp’s Employment Relations (Probationary Employment) Amendment Bill was considered by the previous Parliament that does not mean there should be no public process on or proper parliamentary consideration of the new bill that is in front of us today. Firstly this bill is somewhat different from Mr Mapp’s original effort and secondly even an abbreviated and shortened select committee submission and consideration process would have been far more democratic than the rush to judgment and the simple sham that is taking place in the House today.  
On top of that the Government has taken its new-found power to extremes in not even having the courtesy to supply other members of the House with a copy of the bill until very late last night only hours before the commencement of this debate. To think we can have a really good consideration of this bill in those circumstances is ridiculous. Perhaps National has so little confidence in what it is doing that it thinks the ability of those of us who oppose this legislation to prepare for this first reading must be kept to an absolute minimum. Handicapping Opposition parties like this does not say a lot for National’s confidence in the capacity of its own members to debate the contents of this bill fairly and squarely.  
As the Human Rights Commission said yesterday and as Mr Goff has already mentioned: “Rushed legislation is potentially risky legislation. … The select committee process is an important check and balance where both employers and employees rights can be debated in a measured way. Submissions to select committees reinforce democratic principles of transparency participation and accountability.” Shame on this shiny new Government for taking such a shabby approach in one of its first major legislative measures.  
Turning to the content of the bill itself I say the Green Party of course strenuously opposes this new law which aims to give small and medium sized organisations employing up to 20 people the ability to fire staff at will during their first 90 days on the job. At any given moment around 100000 workers are in that position. The New Zealand Council of Trade Unions says that over 700000 employees a year will potentially be affected. That means that a big percentage of New Zealand’s workforce will feel the impact of a law under which workers can be dismissed for almost any reason without the right of appeal in their first 3 months on the job. People who are in their most vulnerable phase of their employment will become even more defenceless than they are now and will become prey to the depredations of those who practise less than scrupulous employment procedures. The bill will play into the hands of those employers who are lazy mean prejudiced or simply ignorant about how to treat staff well.  
Hon Dr Nick Smith 
: How many people have you employed? How many jobs have you created?  
SUE BRADFORD 
: The member asks how many people I have employed and managed. It is quite a few. The last organisation I ran before I came to this Parliament employed around 50 staff thank you I say to Dr Smith.  
Deep-seated biases against people on the grounds of things like race gender age illness disability or sexuality will come to the fore even if they are not openly acknowledged. Although remedies in cases of those types of discrimination will still be available when an employer does not have to give any reason for sacking someone it is very easy to let the person go for prejudiced reasons without ever revealing those reasons. When people can be dismissed like this with no legal come-back it is very easy for poor employers to target the most vulnerable sections of the workforce as they please.  
For example I note a statement yesterday from the migrant workers organisation Migrante Aotearoa in which spokesperson Dennis Maga says “the Bill will open the doors for further exploitation of a vulnerable section of the workforce. Migrants often have a limited knowledge of their workplace rights and some employers are already taking advantage of this.” Mr Maga is particularly provoked by the way in which Business New Zealand is saying that the 90-day law will help migrants because it will be easier for them to find paid work. In fact he says the bill will simply serve to make things worse for migrants who already have language issues who do not know much or anything about New Zealand law and who may well fear the power of their employer to compromise their legal right to stay here.  
Also hard hit will be Maori workers who are disproportionately represented in low-wage occupations and who often move between jobs more than other parts of the workforce do. Maori continue to be subject to overt and covert racial prejudice on the part of some employers even now before the new bill goes through. This 90-day fire-at-will bill will only make a bad situation worse for tangata whenua. I congratulate the Maori Party on its decision to oppose the bill in line with its earlier opposition to Dr Mapp’s Employment Relations (Probationary Employment) Amendment Bill. The Maori Party of course does understand what the impact of this bill will be on Maori workers and it is just a pity that its new-found allies in Government are choosing not to listen to its concerns.  
There are many reasons why this bill should not proceed. To those who say it will give employers the ability to apply probationary periods to new staff I say that in fact—as Mr Goff has already pointed out—such a right is already available under existing employment law but with fair and reasonable protections for both employee and employer. Once this bill becomes law most basic protections will no longer exist. There will be no option to take a personal grievance to the Employment Relations Authority or to the Employment Court. Employers will simply be able to tell someone to go at any point during his or her first 3 months on the job and unless the sacking is on overtly discriminatory grounds then that is that from the worker’s point of view.  
The fact that the Government is introducing this measure at a time when we are facing deepening recession and higher unemployment is even more worrying. I remember as a child hearing stories of what used to happen in the Great Depression of the 1930s. Employers would take desperate unemployed people on to do a job sometimes involving back-breaking and difficult work get them working really hard then fire them when they had used them up physically or mentally—or when they had simply had enough of them. Without any protection the worker goes only to be replaced by the next desperate person in the unemployed queue. And the cycle continues. I hate to think that we in New Zealand would ever return to those days but this bill totally opens the way for that situation to happen from May next year.  
My fears about what could happen once this legislation is fully implemented are made worse by comments buried on page 9 of the explanatory note of the bill—and I do not know how many members have had a chance to see this yet. There the final statement reads: “Consideration could be given to evaluating the outcomes of this legislative change with a view to extending it to cover all employees in the future.” So although employees of enterprises that employ more than 20 people may feel unconcerned at present because they are not directly affected now I do not think that in the long run anyone will be safe.  
This bill will have other negative consequences as well as those I have mentioned already. For example people will be afraid to change jobs even when it is the best thing to do for them and often for their employers as well because of the knowledge that when they start afresh they may not be there for long. That will particularly impact on people who have to relocate when they are seeking new work. Although the bill makes it sound as though the probationary period will be by amicable agreement between the employer and employee in fact workers are in an extremely powerless position at that time and the employer holds all the aces. How many people who are keen for a job are not going to agree to a probationary period if they know or even suspect that that is the only way they will get the job? If this bill goes through there will be no legal protection against unjustifiable actions by employers. People will be less likely to move jobs leading to labour market rigidity in some areas. Because of the lack of legal protection there will be no way for workers to clear their name if they have been dismissed for reasons they feel are unfair or prejudicial.  
And to add an even worse dimension to all of this workers who are dismissed during the first 90 days on the job will be subject to the 13-week stand-down from Work and Income if Work and Income chooses to apply it. I have heard in the media—and in the House just now from Dr Nick Smith—that the Minister Kate Wilkinson says that is not National’s intention but I have looked at this bill and can see nowhere within its clauses anything that will make that change happen.  
This bill is an attack on the rights of some of the most vulnerable and powerless people in this country. 
DAVID GARRETT (ACT) 
: 
 I rise to support the Employment Relations Amendment Bill for one reason and one reason only: it will foster and promote employment. I am able to say that because unlike members of the House on the other side—and I know there are many unionists over there and they are creating a wonderful show for the television audience and for union officers—I have practised employment law since it became a speciality in 1991. During that period I have handled approximately 150 personal grievance cases for unjustified dismissal for both employees and employers—in fact more often for employees. I cannot recall offhand any case during that period where the dismissed employee had been working for 3 months or less. There may be one—someone might find one in my name—but I could not think of one last night. 
That is no great surprise because when we did some research yesterday we found that the Department of Labour does not maintain accurate figures on length of service but what figures it does have show that the vast majority—about 80 percent—of personal grievances are brought by employees with service of 1 to 4 years. The next most common—10 to 15 percent—involve employees with service of 10 or more years. The next most common involve those with service of 7 to 9 months. So about 3 to 5 percent of personal grievance cases are brought by employees who have been in employment for less than 3 months. If there are members on the other side who have some experience in employment law and personal grievances they will know that that is the reality. 
I listened to the Green member Sue Bradford and what she said was very similar to the kind of scaremongering that happened after the Employment Contracts Act was introduced in 1991. What many people do not recognise is that that supposedly Draconian Act—“Draconian” is a favourite word of members on the other side—gave personal grievance rights to everyone. Prior to that Act one had to be a union member to take a personal grievance. There were predictions then just like those made by the Green member; there were predictions of mass sackings of unfair treatment of oppressive conduct and of all sorts of things. It did not happen. 
It is not going to happen under this bill either for some very good reasons. The employer does not want to go through that process. It is a complete hassle and a diversion. If employers are sensible and well advised when they take on employees they will get advice from an employment lawyer who will tell them that getting rid of an employee for any reason—even for serious misconduct—will take 3 to 6 months or more and will cost $3000 to $5000 in legal fees if they want to make sure they get it right. It has been a surprise to me in my 15 years in employment law practice how uncertain and unwilling employers are to dismiss someone without advice. They will need to take advice. Even if they get it right the dismissal can be challenged under the law as it is now. That means that the employer is dragged to the Employment Relations Authority or to mediation. Most competent employment lawyers will tell them to pay what we in the trade call “go-away money”—pay the employee $3000 or $4000 to go away. Any employer considering taking on staff who receives that advice—unless the employer is completely stupid—must absolutely utterly need a new staff member before stepping up to the brink. 
This bill will allow employers to take someone on and as Government members have said give them a go secure in the knowledge that for 90 days only they can dismiss that person without being dragged to the Employment Relations Authority or as an alternative being made to pay “go-away money” plus lawyers’ fees of say $5000 to $7000. But it will not happen. There will be about the same number of cases as now—3 to 5 percent—and I will tell members why. If an employer goes down that route and uses this provision improperly what happens? Firstly as I have said he or she will be up for 5 or 6 grand. The Hon Dr Michael Cullen said yesterday—in fairness I have to say I think he had not seen the bill at the time—that there would be dismissals for pregnancy and those kinds of things. The bill makes it clear that that cannot happen. The discrimination provisions in section 103 of the Employment Relations Act are preserved. Unlike what the Green member suggested it is actually not very easy to sack somebody for improper reasons such as pregnancy sexual harassment or racial grounds and hide it as a poor performance issue. It is very difficult. I can say that because I have been doing employment law for 15 years since the Employment Contracts Act came in and employment law became a specialty. 
I will tell members why most employers will not misuse this bill. If they need to hire someone else then what do they have to do? They have to go through the process again of advertising of interviewing at least once possibly two or three times of taking a deep breath and employing someone new of training him or her of inducting that person into the firm of giving him or her safety training—all those things. No rational employer wants to do that unless he or she has to. OK there will be some ratbags probably just like there are ratbags now who will take advantage of this law but they will be few in number. They will be 3 to 5 percent of employers. As for the rest someone like my mate down south who runs a liquor store could do with a new fork-lift driver at this time of year but he will not employ someone at the moment because he knows what he would have to go through if it went wrong. 
Hon Lianne Dalziel 
: He can use the probationary provisions now. 
DAVID GARRETT 
: Yes that is perfectly fine. They were introduced actually in the Employment Contracts Act. That terribly Draconian piece of legislation also introduced probationary periods. But as Government members have pointed out the problem with those provisions is there is no protection for the employer. I have advised employers on using probationary periods and the extraordinary detail that one needs to follow in order to get them right is a very real impediment to people being employed. It will not happen. We have the usual glass half-empty claim from the left that people will be sacked left right and centre for being pregnant for being black or for having the wrong-coloured eyes as one member said. It simply will not happen. 
This bill is a very sensible measure to promote employment. It allows employers to employ staff secure in the knowledge that for 90 days only and once only they will not have to pay go-away money or worse to dismiss them. The ACT Party is happy to support it. 
Hon TAU HENARE (National) 
: 
 Can I offer my congratulations to you Mr Deputy Speaker and the other Speakers the Hon Dr Lockwood Smith Eric Roy and the Hon Rick Barker. I offer my congratulations to all new members of the House on both sides. I also offer my commiserations to those who never made it back to the House either by their own desire or through the voters’ desire. My message to you is “Goodbye and good luck.”  
But can we now concentrate on the bill which is about people at the margins. Those guys over there would not know what the margins are because they have been on good salaries and in nice cars for 9 long years. They have not worried about who has union membership. They do not care about the poor prisoner from Paremoremo prison who is trying to get a job and trying to make a go of it. They have not cared about that for the last 9 years. For 9 long years they have not cared about the long-term unemployed. What they have cared about is trying to hold on to the limousines and the ministerial salaries. That is what they have been doing for the last 9 years. They do not care about the immigrants and all we hear is cackle cackle cackle from the witches and warlocks across the way.  
The Labour Party members have to have a cause célèbre. They have to have something to hold on to. But I am afraid that 6 months from now it will be just like the anti-smacking legislation. Nothing will have come of it. All the hatred and all the scaremongering in the world that happened then will have died away and the prisoner from Paremoremo prison who has had a chance—a second chance even—will be grateful to the people who had a bit of vision. He will be grateful for that second chance. So is the bill— 
Moana Mackey 
: You don’t need a law change you can do it now. 
Hon TAU HENARE 
: That member needs to calm down because 9 years in Opposition is a long time. She should get used to it because I am afraid the Labour Party will be ensconced in those seats for a very very long time.  
So is this bill about the right to dismiss or is it about the right to choose and the right to a second chance or even a first chance? Is it about the right to dismiss or is it about the right to show the employer what one has? Is it about the right to dismiss or is it about the right to a second chance? What about the employer when we are faced with tough economic times? Is it not a chance to grow the business in challenging times? Is it not about making sure that one gives not only the employee but also the employer a chance—just a small chance—to get on with it? I remember who was in power in the 1980s when Rogernomics came about. And yes Sir Roger is back. 
Hon Darren Hughes 
: He’s your mate! 
Hon TAU HENARE 
: But I say to Darren Hughes that we should not forget who else was with Sir Roger Douglas in those days. The former Prime Minister the Rt Hon Helen Clark— 
Hon Darren Hughes 
: Name-dropper! 
Hon TAU HENARE 
: Absolutely. She was a pretty good Prime Minister I might add. The Hon Dr Michael Cullen— 
Hon Darren Hughes 
: He’s good too. 
Hon TAU HENARE 
: No he used to be. He is gone he lost his job. 
Hon Lianne Dalziel 
: He did not. 
Hon TAU HENARE 
: He lost his job. It is time for him to gracefully move out of these seats and let Lesley Soper back in.  
This bill is about a chance to try something new and to try someone new. These people would have us believe that it is all about trying to sack somebody but it is actually about trying to employ somebody who has the skills or the opportunity to try to get the skills—all of those people at the margins who have been hanging out for an opportunity for the last 9 years. Darren Hughes would not know and that is why the people of Otaki said: “See ya later Darren we don’t want you as the local member of Parliament.” 
Hon Darren Hughes 
: How many seats have you lost? 
Hon TAU HENARE 
: Labour members still go on about 10 years ago because they have forgotten about the real people. 
Sitting suspended from 1 p.m. to 2 p.m. 
Hon TAU HENARE 
: This bill will give those on the margins an opportunity and we should not fear an opportunity especially given the storm that is coming and that is hitting our shores right at this very moment. We heard the Minister of Finance say to the House this morning that there are tough economic times ahead and we need to be able to offer those on the margins a second chance to partake of the opportunities out there. Also our small employers need the ability to have a bit of flexibility.  
This bill is not about sacking holus-bolus every worker who comes along. It is not about that and I wish that my whanaunga my relations in the Maori Party would realise that but they have a bit of learning to go through as well.  
I close on this note. In the Depression of the 1930s throughout the world people such as Franklin D Roosevelt and Savage came along with some new ideas and new deals. It meant tinkering— 
Hon David Cunliffe 
: And they weren’t from the National Party. 
Hon TAU HENARE 
: Absolutely—absolutely from the National Party. 
Hon David Cunliffe 
: They weren’t your ideals; they were our ideals. 
Hon TAU HENARE 
: If we have a look a Mr Cunliffe’s background we see that he should be in the ACT Party. But I will not get personal.  
As I was saying it is about a new deal and a new time. It is about a new vision a vision that all workers and all employers need to grab hold of because they need to be able to be part of the recovery and not be pushed outside it by some old outdated philosophy that has never worked has never been shown to work and never will work. The battles between capitalism communism and socialism were won and lost years ago. It is now time to move on and make sure that we give everybody on the margins the opportunity to be part of the economic recovery. 
Hon RUTH DYSON (Labour—Port Hills) 
: 
 I begin my contribution by quoting some of the words that the Minister of Labour Kate Wilkinson used in her address in this first reading debate on the Employment Relations Amendment Bill. Kate Wilkinson is a list member of Parliament from Christchurch. She used to be a lawyer for the Exclusive Brethren and that fact combined with the fact that she is now the Minister of Labour and is promoting the very lack of employment relationships that Exclusive Brethren members have promoted day after day—through their practices in their own businesses and also through their writings—should be no surprise. The relationship between Kate Wilkinson her former occupation and this legislation comes as no surprise to anyone on the Opposition side of the House. 
Kate Wilkinson said that this bill was not about taking away rights. Well frankly that is the only thing that this bill is about. The rest of it is just nonsense; it is rhetoric. The soft sell that Kate Wilkinson and her colleagues did around the country prior to the election will not wash anymore because this is the time when the legislation comes under the hard scrutiny of the public. This is the time when people will see the reality of what those soft promises meant. This bill is about taking away employment rights. 
I will read something to the House and that is section 67 of the Employment Relations Act 2000. That section is headed “Probationary arrangements”. Section 67(1) states: “Where the parties to an employment agreement agree as part of the agreement that an employee will serve a period of probation or trial after the commencement of the employment”. That provision goes on to state that this agreement must be put in writing. Then it states that it is not acceptable to unjustifiably dismiss an employee during the probationary period. That is what the existing probationary arrangements say. They are in the law now and they work very well. 
So Tau Henare’s friends who are coming out of Paremoremo prison—as he explained to us in his contribution—and finding it hard to get a job come under the existing provisions and can go to an employer and say: “Give me a try. I want to get a new life and I want a job.” They can be covered under existing law—section 67 “Probationary arrangements” of the Employment Relations Act 2000. Actually the definition of probation is “a testing of the conduct or the character of a person as a candidate” and interestingly enough it is as a candidate either for membership of a religious organisation or for employment. I found that very interesting given who the Minister proposing this legislation is. 
The very terminology in the law and in the dictionary backs up the fact that there is an existing provision that can be used by any employer large or small to employ for a probationary period a person who is hard to place in the labour market and might find it harder to get a job than others—as has been so eloquently described by National members who suddenly give a toss about unemployed people. Those people can already be employed on a probationary period so what is the difference between the existing legislation and the bill that Kate Wilkinson is proposing? There is only one difference between the existing law and the bill proposed by the member and that is that her bill takes away all employment rights for unjustified dismissal. So employers would not have to be fair. They would not have to go through any sort of process. They could just sack people perhaps because they did not like the colour of their hair their eyes or their skin or because they did not like their attitude or because they might be pregnant. 
But of course Kate Wilkinson says that they can go to the Human Rights Commission and that there are existing safeguards for those sorts of things. I am talking about the Human Rights Commission which only a couple of years ago the National Party was describing as PC gone mad and saying should be scrapped. Suddenly National will load up the Human Rights Commission with cases that could easily be dealt with through mediation and the Employment Relations Authority if there was an unjustified dismissal. 
All that is asked of New Zealand employers is that they be fair to their employees. That is clearly too high a standard for the National Government. To expect employers to be fair to their workers is clearly too big an ask. Well I think it is a disgrace and I can tell the Minister responsible for this legislation that both the content and the process we have seen is something that I never expected of her. I know that people in Canterbury would have expected more of her behaviour as the Minister as well. 
Hon Steve Chadwick 
: 3 days into the job. 
Hon RUTH DYSON 
: She is just 3 days into the job and she is showing a total disregard for process and a total disregard for the rights of some of the most vulnerable members in our community—the people who might find it difficult to get a job but who should always be treated in a fair way. This is a new standard being set by the National Government. 
So in the first 100 days we have seen this great bold new vision for the future— 
Hon Lianne Dalziel 
: Turbocharged! 
Hon RUTH DYSON 
: Sorry we have seen a turbocharged vision for a brighter future. We have seen broken promises. We have heard the Minister say that she will not support an amendment from my colleague Trevor Mallard to ensure that Anne Tolley does not break yet another promise made on the election trail. That promise is actually on video. People can load up their computers and watch Anne Tolley say that this measure will not apply to teachers. Kate Wilkinson has refused to support an amendment by my colleague Trevor Mallard to enable Anne Tolley to have been telling the truth. There is an example of loyalty to one’s colleagues! 
So we have seen a pile of broken promises. Even as recently as this week on  
Morning Report 
 we had the Minister of Labour saying there would be additional safeguards in this bill. There are none. There are no additional safeguards just the existing provisions. All that this bill does is take away rights. The first 100 days of this great vision this turbocharged brighter future has seen the lowest-paid workers being required to pay $730 million more tax over the next 5 years. KiwiSaver— 
Hon David Cunliffe 
: Gutted! 
Hon RUTH DYSON 
: There has been an attempt by Bill English to gut KiwiSaver so that employers pay more and employees get less. This is a great vision for a turbocharged brighter future! We have set up a committee to review the science of climate change. Are we putting our hands up as the last deniers on the planet? Even George Bush has come on side with science. New Zealand has set up a committee to review the science on climate change. Now in another great bold step forward we are taking away workers’ rights. 
I listened with interest this week to Phil O’Reilly the chief executive of Business New Zealand who has always said that before we develop any legislation to fix a problem we should define what the problem is. What is the problem that the Government is trying to fix? Let us look at all the options that might be available to fix the problem. This measure has no problem definition at all in it. It is a disgrace because it is driven by the ideology of the sorts of people whom Kate Wilkinson has come into this House to represent. It is not an ideology that supports fairness opportunity or security. Every single New Zealander deserves that respect that security and that opportunity regardless of his or her fortunes or lack of them. There is no problem definition. We do not even know what the problem is that this bill is trying to fix let alone have the opportunity to debate options to fix it. 
The other point Phil O’Reilly made is that the process whereby this measure is rammed through the House under urgency with the bill being tabled at 20 minutes to midnight on the night before the debate is a total disgrace. It is a way to make shonky law. It is a way to encourage division. It is a way to have Kate Wilkinson back in this House within a matter of weeks with an amendment to her amendment because the bill is full of holes. This bill is a disgrace to the House and I urge parties to oppose it. 
HONE HARAWIRA (Maori Party—Te Tai Tokerau) 
: 
 Tena koe Mr Assistant Speaker. Eight years ago Professor Jane Kelsey wrote a book called  
Reclaiming the Future: New Zealand and the Global Economy 
 in which she talked about what happened to Maori during the last recession of the late 1980s. It is a book that should be required reading for all members of Parliament as Aotearoa stares down the barrel of another recession. In that book Jane Kelsey reminds us that until 1987 per head of population there were more Maori than non-Maori working in Aotearoa. That was just 21 years ago. Yet the way the media paint it Maori have been basically unemployed lazy dole-bludgers ever since Pakeha came to these shores. It is strange how much we are influenced by the media. The fact remains that just 21 years ago more Maori than Pakeha were working our families were stable our kids were healthy and crime was down.  
Then of course the crash hit. The world came crashing in on us and in just 6 years Maori unemployment went from 1 percent to 15 percent. Nearly half of all 16 to 19-year-old Maori ended up on the dole and our whole world fell apart. Now it seems we are heading right down that same track but that this time we are starting from a place far worse than 21 years ago because for Maori Maori unemployment is already more than twice that of non-Maori there are four times more Maori beneficiaries than non-Maori and Maori society has still not fully overcome the devastating effects of the crash of 1987.  
Even after 9 years of great prosperity the gaps between the rich and the poor were never closed because Labour chose to close the programme rather than close the gap. Let all those from Labour who ponce on in pious and sanctimonious rage about mana enhancement and the perceived failings of the Maori Party hear this clearly for the first of many times over the next few years: the Maori Party was born out of the treachery of the Labour Party. The Maori Party was born out of the betrayal of 50 years of blind loyalty to a regime that took the Maori vote and spat on the Maori hand that offered it willingly. The Maori Party was born out of the theft of the foreshore and seabed. In 2005 the Maori Party took four seats from Labour. It held and increased its majorities in every one of those seats and took another seat in 2008. The Maori Party will take the other two seats in 2011. The Maori Party will remain forever a party in this House and a player in the governance of this country. Thanks to the treachery the duplicity— 
Hon Dr Michael Cullen 
: I raise a point of order Mr Speaker. The rules of relevance still apply in this House even after events of more recent years. The Maori Party has a habit of coming to this House with speeches written by either Harry Walker or Helen Leahy which they then read word for word. They are speeches that— 
HONE HARAWIRA 
: Point of order— 
Hon Dr Michael Cullen 
: I am speaking on a point of order. 
The ASSISTANT SPEAKER (Hon Rick Barker) 
: I will listen to this point of order first thanks. 
Hon Dr Michael Cullen 
: These speeches bear no relation to the bill. This bill the Employment Relations Amendment Bill is actually quite a narrow bill in its scope. It covers the issue of 90-day probationary clauses the removal of personal grievances and it also covers the removal of certain matters relating to KiwiSaver. One could cover within that the broad scope of employment relations. It does not cover the formation of the Maori Party the Foreshore and Seabed Act the Treaty of Waitangi the service of various people in various battles and various things around the world or what will happen in the 2011 election campaign. This is about employment relations. If members are going to come to the House with prepared speeches written for them at least they should be written relevant to the bill in front of the House. 
The ASSISTANT SPEAKER (Hon Rick Barker) 
: The member has made his point. It is a fair point and the member with the call should focus his comments on the bill before the House. Thank you. 
HONE HARAWIRA 
: I am happy to speak on the bill. Within 90 days of the next election in 2011 the Maori Party will have taken the other two Maori seats and will remain forever a party in this House and a player in the governance of this country thanks to the treachery the duplicity and the seditious betrayal by the Labour Party of the Maori people. 
Hon Dr Michael Cullen 
: I raise a point of order Mr Speaker. Not only is that irrelevant it is marginally offensive at the very least. If we are going to talk about seditious betrayal then I would have thought the Maori Party was exposed to that in its behaviour during the whole of yesterday and this morning. The fact that Mr Harawira wanted to vote the other way is no excuse for his now venting his rage on the House. 
The ASSISTANT SPEAKER (Hon Rick Barker) 
: I just remind the member that the debate is on the Employment Relations Amendment Bill. The member assured me that he would talk on the bill and I accept that assurance for what it is. I ask the member to now please turn his comments to the— 
Hon Rodney Hide 
: Point of order— 
The ASSISTANT SPEAKER (Hon Rick Barker) 
: Excuse me Mr Hide I am on my feet. I now ask the member to focus his comments on the bill as required by the Standing Orders. 
Hon Rodney Hide 
: I raise a point of order Mr Speaker. I notice that Dr Michael Cullen’s first point of order was correct in form. Certainly the second point of order was not. I know that Dr Cullen knows and I think you also know that one cannot enter into debating points on a point of order and one certainly cannot take the opportunity to abuse someone across the House while on a point of order. I ask you to rule accordingly. 
The ASSISTANT SPEAKER (Hon Rick Barker) 
: I call the honourable Hone Harawira. 
Hon Rodney Hide 
: I raise a point of order Mr Speaker. Is it your ruling that Dr Michael Cullen’s last point of order was acceptable to you as Assistant Speaker? 
The ASSISTANT SPEAKER (Hon Rick Barker) 
: Mr Hide I made no such ruling. If you reflect on it I was not ruling for or against. I want the House to get on with its business. The points have been made everyone understands what it is Mr Harawira has said he is going to address the bill and I look forward to hearing his comments on the bill.  
Hon Rodney Hide 
: I raise a point of order Mr Speaker. I ask you to rule consistently so that if I take a point of order explaining how the Labour Party betrayed Maori voters and indeed all of New Zealand while they were in Government you would have to find that acceptable. 
Hon Trevor Mallard 
: It is very clear to any experienced member—and that member has been here for some time—that there is no obligation for you to rule on points of order even when they are frivolous. 
The ASSISTANT SPEAKER (Hon Rick Barker) 
: The member is correct. The House is here to consider business; the business is the Employment Relations Amendment Bill. The honourable Hone Harawira is going to address the bill. Let us move on and hear his speech on the bill. 
HONE HARAWIRA 
: Getting back to this bill I say that my previous reference was to the employment prospects of members of this Parliament after the election of 2011 and the first 90 days after that. It is most relevant to this bill. We are now considering another bill to amend the Employment Relations Act 2000 by introducing probationary periods for workers in their first 90 days on the job. This will directly affect employment for everyone in Aotearoa particularly Maori. The bill proposes 90 days within which a person can be dismissed without reason and without recourse to personal grievance or other legal proceedings.  
This bill is only four pages—10 clauses and a couple of new items. Apparently workers can still take legal proceedings if they are sacked but bosses do not have to give them their jobs back so that is a pointless exercise. Mediation is also still available but there is no incentive for employers to take people back under mediation. So that is a bit of a waste of time as well. Then of course this bill is being put through the House under urgency without any notice that it was even in the 100-day plan or with any public debate. Yet we know only too well from the national outcry over the Mapp bill that this new 90-day bill will have massive and immediate negative implications for Maori Pasifika Pakeha and tauiwi workers. 
Darien Fenton 
: And young people. 
HONE HARAWIRA 
: And young people thank you very much. We come to this debate acutely aware of the impending fallout that will hit workers in manufacturing retail and construction. These are industries that employ high numbers of Maori and Pasifika people. We are also acutely aware that Maori already earn way less than non-Maori across all industry groups. We come to this debate already aware of bad employment practices like people being hired on fixed-term trials and then sacked for no valid reason—particularly Maori young people and Pasifika women in the hospitality and retail sectors.  
This bill talks of those doing it tough in the labour market like first-time workers the long-term unemployed the poorly skilled and the low-waged. These are categories with high Maori numbers. Just last night we got a note from Te Runanga o nga Kaimahi Maori o Aotearoa supporting the Maori Party’s decision to oppose the bill. It said: “With rising unemployment the first peoples to become unemployed will be the unskilled and low waged. Maori will be the majority peoples in this group.” Furthermore we note that although this bill talks about improving employment prospects there are no provisions in it for induction or training at all.  
In case people need to hear it again let me be very clear: the Maori Party is as concerned as anyone else about the need to help small and medium sized businesses to survive grow and flourish. We support any initiatives that will reduce compliance costs and encourage employers to be positive in their outlook but not at the cost of those who will do the work. The Maori Party supports the right for all workers to be treated with fairness and dignity. We simply cannot see that this bill will encourage employers to do that; in fact we believe that this bill will discourage the very things that are needed such as clear contracts and decent employment practices. For all these reasons the Maori Party will be opposing this bill. 
Hon LIANNE DALZIEL (Labour—Christchurch East) 
: 
 As a former Minister of Commerce I shall read the adequacy statement of the regulatory impact statement into the record as I did for a previous bill: “It has not been possible for the Regulatory Impact Analysis Team to undertake an assessment of the adequacy of the Regulatory Impact Analysis and the Regulatory Impact Statement for this proposal within the time frames.” This is the second bill from the National - Maori Party - ACT Government that has not even tried to pay lip-service to the regulatory impact assessment process that is critical to quality regulatory frameworks. This is a Government that was so proud to appoint a Minister for Regulatory Reform yet the first two bills it has introduced into the House do not even meet the benchmarks that were established by the previous Government. It is ridiculous.  
I ask the House how this bill is going to turbocharge the economy. I heard National Party MPs talk about productivity throughout the campaign. What does this do to increase workplace productivity? How is workplace productivity improved when employees do not know whether they will have a job at the end of their first 90 days in the job? How is productivity improved when we let employers off the hook in terms of understanding how to get the best from their workforce?  
From the Department of Labour’s website I got an interesting little document on workplace productivity. It has all of the productivity drivers that have been developed in collaboration between Business New Zealand the New Zealand Council of Trade Unions and the Department of Labour. The document refers to building leadership and management organising work networking and collaborating investing in people and skills encouraging innovation and the use of technology creating productive workplace cultures and measuring what matters. It is the productivity driver called “Creating Productive Workplace Cultures” that I thought was really important and it states: “Positive relations between staff teams and managers are the foundation of productive workplaces. A positive work environment motivates people and helps them commit to the organisation. People feel encouraged to ‘go the extra mile’. It’s also important to value people’s insights and experience. Their ideas can help your workplace to do things smarter and better. That means your business will become more innovative and productive over time.” This was developed using real-life examples real business case studies from real businesses increasing productivity on many levels. Not once does it say “Create a climate of fear and put people’s jobs on the line for the first 90 days.” Not once in any of these productivity drivers do we see that suggested.  
National knows that 96 percent of all firms employ fewer than 20 staff. That is why the Labour Government established the portfolio of Minister for Small Business and also the Small Business Advisory Group. When I was Minister for Small Business the Small Business Advisory Group recommended this provision. I agree that the Small Business Advisory Group recommended the provision but I asked the advisory group to think about that and it did because it is a little bit smarter than National would perhaps give it credit for. Although I could not persuade the advisory group to give up on that view it did identify what the real issue was and that was fear of fear itself. Every one of those people had an anecdote or a story about what had happened to their mate’s uncle’s third cousin. Some of them had stories of their own—stories of disappointment of pulling out the cheque book to pay a non-performing staff member who was dragging down the business. But they did not have to pull out the cheque book at all; they just thought they had to do so.  
The National Government in its drive for productivity and its drive to turbocharge the economy says that that is OK and that it is OK for people to think that is the case when the current law already provides for a guide to probation periods that enables people to have a period of time where they are essentially looking out for all the issues that are of concern. I think it is letting employers off the hook not to teach them how to employ staff well from the outset. Employment relationships are all about establishing what the expectations are from both sides of the relationship. National just cannot stand it. The bottom line is that if employers understood what the law currently allows and were able to use it effectively there would be fewer personal grievances and increased productivity. I call that a win-win situation.  
This is an extremely lazy policy and that is because it has not been through any process of scrutiny at all. If the Government was so sure of itself why would it not send this bill to a select committee for that scrutiny? Tau Henare said we needed to get it through quickly to bring it in on time but it does not come into effect until 1 April next year. What do those members mean it has to be rushed through under urgency before Christmas? It is an April Fool’s joke for ordinary workers.  
I remind this House that yesterday was international Human Rights Day and what does the new National Government do to celebrate this day? It takes human rights away from ordinary working New Zealanders as its way of trying to celebrate human rights and that is just ridiculous. Today the New Zealand Government is reducing the rights of workers based solely on the size of the business they work for. We can guarantee that employers would not want to increase their businesses to 21 employees; they would want to keep their number to fewer than 20 so that they could rely on this 3-month “get out of jail free” card. How ambitious is that for New Zealand? I do not think that is very ambitious for New Zealand; it is pathetic. Even Business New Zealand says the process is bad.  
I remind the House of a story we heard back in the 1990s. I remind this House that the Employment Contracts Bill despite Gerry Brownlee’s memory—even though he was not here at the time—actually did go to a select committee. I remember a mother coming to the select committee when the Employment Contracts Bill was before it. She pleaded the case for young people. She said that young people should be supported by an adult if they are going to be disciplined by their employer. She told the story of her son. I cannot remember how old her son was—I think he was 17 or 18 at the time. He was in his first job in a shop in Christchurch. He stayed after work on a Friday night for a few drinks and he was smoking. He flicked some ash on to the carpet and it burnt the carpet. The employer came in at the time and he sacked him instantly on the spot. It was that young man’s first job. He had been looking for a job for a long time. That young man went away from that shop bought a bottle of whiskey drove himself down to a riverside and took his own life. He killed himself because he could not stand the thought of going home and telling his parents that the first job he had ever got had been taken from him just through a foolish act and an employer who was not prepared to listen.  
I know that members will think this is a very extreme example and it is. But anyone in this House who thinks that it is OK to take away rights from the most vulnerable people while pretending that this is for vulnerable people needs to think very carefully about the consequences at the extreme because these are the consequences that will occupy the minds of New Zealanders in the future when we see those cases repeated. Tragically history does repeat itself and we are condemned to those mistakes of the past if we do not learn from them. 
NATHAN GUY (National—Otaki) 
: 
 I am delighted to take a call on the first reading of the Employment Relations Amendment Bill. It is a very important bill for the Government to push through before Christmas because of the economic times we are currently in where unemployment is rising and employees need to be given the chance to be employed.  
We have just heard from the previous Minister for Small Business Lianne Dalziel who is now on the Opposition benches. She used to oversee the Small Business Advisory Group. She was talking up this legislation and saying how important it was. She said the No. 1 issue that was raised by that advisory group concerned the 90-day probationary period. It is fantastic that she alluded to that in her presentation and actually supported it. That just shows how that advisory group actually worked through the process of analysing how important the legislation we are debating this afternoon is to small and medium sized business with fewer than 20 staff. It is a great thing that we are addressing this issue today under the leadership of Prime Minister John Key. We will deliver for small and medium sized businesses and we will give employers and employees the right to get on and create a very good working relationship. This was our pre-election commitment.  
Unemployment across the country is forecast to rise up to about 6 percent and it is tracking up now. [ 
Interruption 
] It is interesting that the previous Minister for Social Development and Employment Ruth Dyson is chipping in from the other side of the Chamber. When she was in the ministry and unemployment was clicking up then before we had the election she came out with a random comment to say she was not too concerned about unemployment increasing. Since then unemployment has carried on increasing. It is vitally important that unemployed people are given the opportunity to get back into some form of employment.  
In my area I am delighted to now be representing the Otaki electorate which encompasses the wonderful area of Kapiti and Horowhenua. In the last 12 months unemployment has risen in Kapiti alone by 44 percent—44 percent in the last 12 months in the Kapiti district. It just shows how important this legislation is going to be for small and medium sized businesses—for those employers to give people the opportunity to get into a job.  
We all know that it is particularly difficult in recruitment to know whether one has a compatible person who will work through with the employer and employee. Businesses across the country are saying that is one of the things that causes them a great amount of concern. The other issue is bureaucracy. The example I want to use comes from when I was on the campaign trail. I was out in an area in my electorate called Shannon. There was a mum and dad business that had just got going. They had mortgaged their whole house to set up their business. They had taken a risk and they were concerned about attracting the right people into their business and about whether those people would be compatible. This legislation will help to give those people time to work out that compatibility.  
It is really important for the Government to progress this legislation through its first reading second reading Committee stage and third reading. I look forward to having some ongoing dialogue with members on the other side of the House. Of course all their union mates want to say: “Oh well this is just going to be the right to hire and fire on the 89th day.” What an absolute load of hogwash. Anyone who has been involved in business knows that it is vitally important to upskill and to continue to train one’s employees. Why would any employers in their right mind on the 89th day want to kick out those people whom they have just trained and who are compatible in their business?  
It is interesting that a whole lot of countries in the OECD have longer trial periods. It is interesting that the soon to be elected if he has not been already president of the Labour Party and former member of the New Zealand Amalgamated Engineering Printing and Manufacturing Union said that it has a 6-month trial period. So I cannot understand why Opposition members are so concerned about this legislation.  
Moving this legislation through will be vitally important when unemployment is tracking up. Vulnerable employees need to be given the opportunity to be taken on by employers. I have given an example of mum and dad investors who are petrified about taking the next step. They might currently have a wonderful innovative idea and they might be working out of their garage. We need to have more economic development in the region that I represent in Otaki and in Napier where Chris Tremain is from. These people are really concerned about taking the next step of employing people and getting the right relationship between employee and employer. This legislation is vitally important to growing the economy and we need to get on and endorse it. That is why I am speaking today very much in favour of it. 
COLIN KING (National—Kaikoura) 
: 
 It is a pleasure to be able to speak to the Employment Relations Amendment Bill. Hearing all those well-thought-out deliveries from this side of the debating chamber certainly reinforces my view. I would like to start by acknowledging the concerns that the Maori Party member Hone Harawira expressed. Those things that happened during the late 1980s were hugely concerning. If we do not learn from the lessons of the past then we are indeed likely to make those mistakes again. However I make the point that although I had the responsibility in Opposition before National came on to the Government benches of looking after the people in the trades training sector it became clear to me that there was a substantial blockage within the employment system. As the honourable member Lianne Dalziel mentioned employers had the perception that taking on new staff was not worth the risk and the worry. We might say that theoretically it is not a problem; that the problem is with the employers. Well I am sorry but there was a lot of issue there. Once that sort of thought takes hold then we do not get people coming into employment as apprentices to be trained in the job.  
It is very very important that at least 20 percent of employers train apprentices. We work on the old 80:20 rule but sadly we are not seeing that happen today. Too many employers look at the risks associated with the Employment Relations Act when taking on somebody and they just do not do it. We have seen an exponential growth in that practice which will have to be addressed in a very intelligent way and it will be up to the National Government to do it so as to be able to find ways through it. This bill is one of the first steps in achieving it. We are now seeing a lot of contracting out for services by businesses. Although that is a commercial decision we could say it is part of the impacts of the risk and the worry for a small to medium sized enterprise when taking on people whom the employer is not too sure of.  
I will just put that thought there for the moment as it is something that we cannot overlook. We do not want to dismiss it as ideological thinking and notional. It is something that this House needs to seriously consider. We have heard a lot of talk today about section 67 and that is appropriate. Effectively that is the present provision covering a probationary period and when we check through it we see that it is reasonably prescriptive but not overly prescriptive. I would have to say—putting myself in the place of a person who is working in the business and not necessarily on the business—that it is hugely onerous. Working with a shovel in one hand and trying to wrestle off crocodiles and sharks with the other through the grievance process is not something one would welcome this side of Christmas. I am very very supportive of this move.  
Let us consider the way the Employment Relations Act came to the House. It went to a select committee. Six hundred submissions were heard on the legislation at that time. When the vote was taken at the select committee it was split 50:50. We have had to experience an interesting change. When the legislation was introduced into the House there was an organised theatre of demonstration outside the House—an orchestrated ceremony. Today all we have is the Opposition members on the other side of the Chamber whingeing moaning whining and trying to fabricate something that is not a problem at the moment. If it does become a problem then we can be sure that members on this side of the House will address it.  
Let us turn further into the bill and to something that has not been talked about all that much—section 120 of the Employment Relations Act. Although members talk about the probationary period there is the other side of the coin which is the process of terminating an employment relationship. On that basis it is incredibly onerous and that is the point that is made in this bill—the status quo and the problem. The explanatory note in the bill talks about the status quo and the problem: “At present there are no provisions for trial periods that exclude”—and I make that point—“the employee from raising a personal grievance for reasons of unjustified dismissal.” That is pretty straightforward. At present there is no provision to employ people without the risk that if they are dismissed they can take a personal grievance case against the employer.  
Just imagine if one ever had the privilege of being self-employed having to wait in fear and trepidation for 60 days that one may be asked to put in writing within 14 days the reasons why the employment was terminated. The average among us here might say that that is not too hard a request; it is pretty reasonable. It can appear to be very reasonable in an ideological world but in the real world at the coalface it is incredibly onerous. As the ACT Party member said previously when we break it all down of the number of cases that were brought forward and that he acted on in respect of employment grievances 80 percent were brought by employees with a length of service of 1 to 4 years 5 percent were by employees with 10 or more years of service and 3 percent by those with service of 7 to 9 months. So that leaves a fair structure within the Labour Party of 3 percent.  
I put it to members that the value of this bill when read within the context of the Employment Relations Act provides adequate and sufficient safeguards for the employee and the employer. We should also bear in mind if someone is in any doubt that both sides of the relationship have to agree to this 90-day provision. That is reasonable. Employees also continue to be protected by the Employment Relations Act provisions. We talked about human rights the other day. Employees still have protection under those provisions and barring personal grievances they have access to mediation.  
When we read this bill in the context of the Employment Relations Act I can put my hand on my heart and say that members on this side of the House are very very strongly in support of it that the small to medium sized enterprises within New Zealand are strongly in support of it and that it will work for the many many people who have to re-enter employment or who are entering it for the first time. 
At lunchtime somebody from the other side raised a question with me in passing. They asked me why we do not include shearers in the provision. Well fortunately because shearers are a scarce commodity today they can get a job wherever they want. However a lot of the other trades are not in such a privileged situation and numerous parents especially mothers—it is mothers who seem to go into bat for their children—have very strongly asked me why someone will not give their child a go. This bill does that very thing. So I encourage those members on the other side of the House to stop their blinkered thinking and to open up to the opportunities here. This National Government will take this country forward and the first step—even if it is only a small one—is the Employment Relations Amendment Bill. I speak in support of this bill and recommend it to the House. 
A party vote was called for on the question  
That the Employment Relations Amendment Bill be now read a first time. 
Ayes 63 
New Zealand National 57; ACT New Zealand 5; United Future 1. 
Noes 55 
New Zealand Labour 43; Green Party 6; Maori Party 5; Progressive 1. 
Bill read a first time. 
Hon PHIL GOFF (Leader of the Opposition) 
: 
 I seek leave to table the report of the Labour Committee on the Employment Contracts Bill dated April 1991 which indicates that controversial legislation introduced after the election of a National Government in 1990 at least went to a select committee. 
The ASSISTANT SPEAKER (Hon Rick Barker) 
: Leave is sought for that document to be tabled. Is there any objection? Yes there is objection. 
Hon PHIL GOFF (Leader of the Opposition) 
: 
 I seek leave for the Employment Relations Amendment Bill to be referred to the Transport and Industrial Relations Committee for consideration in order to allow proper parliamentary scrutiny and to acknowledge the democratic right of New Zealanders to make submissions on legislation especially when it is controversial; and acknowledging that anyhow this bill does not come into effect until 1 April so there is no reason why it should not go to a select committee. 
The ASSISTANT SPEAKER (Hon Rick Barker) 
: Leave is sought for that purpose. Is there any objection? Yes there is objection. 
Second Reading 
Hon KATE WILKINSON (Minister of Labour) 
: 
 I move  
That the Employment Relations Amendment Bill be now read a second time 
.  
Hon Trevor Mallard 
: I raise a point of order Mr Speaker. I think the second reading has to be called does it not? 
The ASSISTANT SPEAKER (Hon Rick Barker) 
: What is your point of order Mr Mallard? 
Hon Trevor Mallard 
: I do not think the Clerk called the bill. 
The ASSISTANT SPEAKER (Hon Rick Barker) 
: The Clerk advises me that she called it. Secondly I said that the Employment Relations Amendment Bill is set down for second reading forthwith. 
Hon KATE WILKINSON 
: This bill addresses the Government’s response to the need to assist employees and employers in small and medium-sized businesses in creating employment opportunities. This bill has been carefully and moderately drafted. It is not about taking away rights; it is about giving opportunities. Importantly the bill maintains employees’ rights. We have said in first reading speeches that employees can still raise a personal grievance under the discrimination provisions of the Employment Relations Act. Sexual or racial discrimination is not acceptable.  
Hon Clayton Cosgrove 
: How will you police that? 
Hon KATE WILKINSON 
: The bill maintains the right for personal grievances to be resolved using either the authority or the court in those situations I say to Mr Cosgrove. 
The bill specifically provides that the employer and employee may agree to a trial period only once. This bill is about helping employers to provide genuine opportunities for new employees. We have heard in first reading speeches talk of productivity and I will read a quote from the Tauranga Chamber of Commerce from yesterday: “This is very positive news”—it is talking about the bill—“for both employers and employees particularly smaller businesses. The key issue for our economy is productivity and this bill goes a long way to ensuring the right people are in the right jobs. This bill is good for both parties and will result in much firmer employment relationships. The Tauranga Chamber of Commerce supported the bill because the 90-day period gives both parties time to gauge the fit of both employer and employee. Particularly important are the benefits to employees with no formal qualifications who will have a better chance at obtaining skilled positions because they have a trial period to prove their capabilities. Employers who are considering taking on an extra staff member will be in a better position to trial the role and the impact on the business before confirming the position.” 
This bill is a moderate bill. It has been prepared to protect the rights of employees. It has been prepared and drafted to give new employees the opportunity to say “Give me a go; I will prove myself.” and to get their foot in the employment door. We have added the protection that the trial period is to be established by agreement between the employer and employee. I would like to— 
Hon Simon Power 
: I raise a point of order Mr Speaker. I have sat here for an hour and listened to various contributions from members opposite. I think that you should take the opportunity to allow members opposite to listen to a speech from this side of the House without their constant interruption and barracking. 
Hon Clayton Cosgrove 
: Speaking to the point of order— 
The ASSISTANT SPEAKER (Eric Roy) 
: No I do not need any assistance. The member is responding to some of the points that were made in the first reading debate and I think members could contain themselves a little more. 
Hon Clayton Cosgrove 
: I raise a point of order Mr Speaker. In fairness I think you were not at the last debate where Nick Smith sat opposite— 
The ASSISTANT SPEAKER (Eric Roy) 
: That point of order is out of order. I have already ruled on this matter. If the member has a new point of order he should raise it— 
Hon Clayton Cosgrove 
: I do. 
The ASSISTANT SPEAKER (Eric Roy) 
: I am on my feet. The member will sit down please. I have ruled on the matter. 
Hon Trevor Mallard 
: I raise a point of order Mr Speaker. I ask whether your ruling means that Ministers with weak voices get special treatment because that appears to be the case. 
The ASSISTANT SPEAKER (Eric Roy) 
: That is not what I intended nor said. All I have done is ask members to contain themselves a little more. That is not an unreasonable expectation from the Chair. 
Hon KATE WILKINSON 
: I would like to address some of the myths that have been enunciated both before and during this debate. One of those myths has been spread by one of the Labour affiliates and it basically says that if the bill becomes law workers employed at enterprises with fewer than 20 staff will lose the right to challenge an unfair dismissal during the first 90 days. This bill applies only to new employees. It will not affect existing employees and the trial period is established only by agreement. So it is up to the new employee to say “Give me a trial period.” The bill will not affect the rights of existing employees. 
Throughout the debate the member from the Green Party Sue Bradford has mentioned what happens to those on benefits. I mentioned in my first reading speech that beneficiaries who leave the benefit to go on a trial period will not face a stand-down if they go back on the benefit. I want to enunciate and reiterate that point which is actually contained in the question and answer sheet we have put out. That document specifically states: “Employees on a trial period if they were previously on a benefit or if they receive assistance post-redundancy in a new package to be announced before Christmas by the Minister of Social Development will not face a stand-down if they go back on a benefit or onto the post-redundancy assistance unless they have been dismissed for misconduct or have chosen to end the trial themselves without good reason”. 
We see this bill as giving opportunities. It is not only giving businesses the confidence to take on new employees; it is also giving prospective employees the opportunity to say “I want to get off the benefit. I haven’t got experience. Please give me a try.” We think that that is a good thing. 
I will also address the issue of why it is important that this legislation is passed as a matter of priority. I refer to the Christchurch  
Press 
 editorial of today which states: “the Government is also well aware that the global economic crisis means the country will no longer be able to coast along on a wave of externally generated prosperity while economic fundamentals at home particularly growth in productivity slump precipitously. … It is in any event a good bill to get passed into law as soon as possible. The vast bulk of business in New Zealand is conducted by small and medium-sized enterprises. As they are at the moment the laws governing employment are a powerful disincentive to anyone thinking of hiring a new worker but uncertain as to his or her capacity for the job. At present if an employee turns out to be unsuitable an employer who wishes to dismiss him or her risks having to deal with the whole time-consuming complex and expensive apparatus of the law governing dismissals. The risk of distraction from the core job of running a business and incurring large costs may make an employer hesitate. This can be particularly the case with employees who may be worth taking a chance on but whose backgrounds indicate potential difficulties.” 
The editorial further goes on to reiterate the safeguards we have put in place: “But National proposes safeguards to prevent abuses and the time and effort employers must spend to advertise for and hire employees make it highly unlikely that they will misuse the system. It should also be remembered that trial periods were once commonplace without causing any great difficulties. The benefits to be gained will far outweigh any possible disadvantages.” 
I will also refer to the previous consultation. The legislation has been consulted on; it has gone to a select committee. There were 619 submissions. At the end of the day the vote at the select committee was tied and therefore lost. This bill has been extensively consulted on and if one looks at the submissions opposing the bill one will see that they talk about benefit entitlements. National has addressed that issue. Those submissions talk of employees being reluctant to change jobs if they were subject to a probation period which particularly applied to jobs that require relocation. That is why we have the provision that establishes trial periods by agreement. We recognise that this will not be suitable for all new employees and we recognise that it will not be suitable for all employees wishing to relocate. That is why the trial period is to be established by agreement between the employer and the employee. 
Another concern raised at the time was in relation to discrimination grounds. We have specifically retained the grounds and the protections under discrimination provisions. At that time the Opposition said that the bill would also allow employers to engage employees on a series of probationary periods. Even if one could fathom why an employer would do that and have an 89-day rollover period one would know that that would be expensive and not a practical or sensible solution. We have specifically provided in our bill that an employee is one who has not been previously employed by that employer. So an employer cannot use it as an 89-day rollover. 
Hon TREVOR MALLARD (Labour—Hutt South) 
: 
 In light of the Minister’s denial of her relationship with the Exclusive Brethren I seek to table an article from the Christchurch  
Press  
of 29 November 2006— 
The ASSISTANT SPEAKER (Eric Roy) 
: Leave is sought to table that. Is there any objection? There is. 
Hon KATE WILKINSON (Minister of Labour) 
: 
 I seek leave to make a personal explanation. 
The ASSISTANT SPEAKER (Eric Roy) 
: Leave is sought for the Minister to make a personal explanation— 
Hon Trevor Mallard 
: Mr Assistant Speaker before we deny leave it is traditional for members to state the subject of the personal explanation.  
Hon KATE WILKINSON 
: It is in reference to the previous Minister of Labour’s deliberate misrepresentation.  
The ASSISTANT SPEAKER (Eric Roy) 
: Leave is sought. Is there any objection? 
Hon Trevor Mallard 
: Yes there is—put it nicely and you will get it. 
The ASSISTANT SPEAKER (Eric Roy) 
: I am on my feet! Members will be silent. When leave is sought to make a personal statement we are not going to get into these across-the-benches kinds of interjections. So leave was sought; it was denied. 
Hon TREVOR MALLARD (Labour—Hutt South) 
: 
 I raise a point of order Mr Speaker. I make it clear to the member that I will not object to her making a personal explanation if she does not as part of that accuse me of breaching privilege which she has just done. 
Hon KATE WILKINSON (Minister of Labour) 
: 
 I seek leave to make a personal explanation— 
The ASSISTANT SPEAKER (Eric Roy) 
: In relation to? 
Hon KATE WILKINSON 
: —in relation to the  
Press 
 article quoted by the previous Minister of Labour. 
The ASSISTANT SPEAKER (Eric Roy) 
: Before I put the leave I will say that the Chair will be the judge of whether there is any breach of the leave once it is granted. I will put the leave. Is there anyone who has objection to that course of action? There is not. Leave is granted for a personal explanation. 
Hon KATE WILKINSON 
: As many will know prior to my career as a member of Parliament I was a solicitor for some 25 years. During that time I acted for many clients. Some of those clients may have been members of religious groups; some of them were not. I have acted in the past for members of Parliament who are not even members of the National Party; that does not mean that I am a part of those other political parties. I have also acted for bullies but I have never in my life acted for Trevor Mallard or Clayton Cosgrove. I can say categorically that I have not acted for the Exclusive Brethren church.  
Hon CLAYTON COSGROVE (Labour—Waimakariri) 
: 
 I raise a point of order Mr Speaker. I take offence to those remarks; they should not have been part of a personal explanation. I think Mr Assistant Speaker you are aware of that. It should be ruled out and she should be asked to withdraw and apologise. 
Hon Kate Wilkinson 
: I withdraw and apologise. 
The ASSISTANT SPEAKER (Eric Roy) 
: I did say that I would be the judge and the member did breach that. The apology has been given and the matter now rests. 
Hon TREVOR MALLARD (Labour—Hutt South) 
: 
 This is an outrageous bill and it has been processed in an outrageous way by a Minister who clearly spent too much time with her Exclusive Brethren clients and who has been overly influenced by them in her approach to this area.  
The Labour Party will oppose this bill; it will attempt to amend the bill to make it more reasonable. I already have a draft that will stop Anne Tolley from becoming a liar and I will make that available to the House during the Committee stage. Anne Tolley made a commitment on video that this measure would not apply to teachers. We are trying to save her back and stop her from becoming a liar in that way.  
The other point I make in order for officials to have a good look at the bill is to ask them to look at the clause that purports to make it clear that people dismissed in these circumstances have a right to mediation. Unfortunately the bill as drafted makes it clear that employees have a right to mediation. People who have been dismissed are not employees and therefore will not have rights to mediation. I ask the Minister to get some advice on that particular question. We will be drafting amendments to attempt to correct that as well so that we will try to stop the Minister from becoming a liar in that particular circumstance. We will work on that issue in order to see whether we can get to the point where we— 
Hon Steve Chadwick 
: Dave would have told them.  
Hon TREVOR MALLARD 
: Well a select committee would have sorted it out fairly well. I think it is fair to say that generally the Department of Labour has done a very good job on the drafting of bills and in terms of parliamentary counsel there has been a long tradition of Walter Iles being involved. But I am sure that his advice and the officials’ advice to a previous Government would never have been to put a bill like this through under urgency because that is how mistakes are made.  
I go back to the fundamental question and ask whether this legislation is necessary. The answer is that it is not because we already have probationary periods; lots of people have probationary periods and that works very well now. I make another point more so as the spokesperson on economic development than as the spokesperson on labour—that this measure will dampen down the ability of people to shift from job to job and to come to New Zealand. If someone knows that the deal is to sign up for a temporary job then why would that person leave a $100000-a-year job to go to a $105000-a-year job when he or she might get a “do not come on Monday” notice within 90 days. Why would someone shift jobs for a marginal increase in money? Why would someone go to a job where he or she can be more productive? Why would someone come to New Zealand having been offered a job but knowing that the employer could sack that person for no reason without even giving the person a note to say why—the employer does not even have to put a reason in writing.  
I ask why the Government is pushing so hard in this area. I think it is fair to say that is traditional. National would not feel like a proper Tory Government if it did not attack workers in its first week in office. I do not understand why members opposite hate workers so much. I really do not understand why they feel an obligation within a week of getting into Parliament to do something that undermines workers in that way. It is fair to say that out on the hustings a lot of those members were more reasonable than they are being now. It may be something to do with group dynamics. They get together here they infect each other they turn into more rabid Tories than they are out on the hustings and in the end they feel that they must kick the workers—those who generally vote for Labour—in the teeth in order to make them see who is in Government now.  
I reiterate the very clear advice of the Bank of New Zealand in its overview of its weekly report that was issued yesterday. It said: “If businesses think light is appearing for the economy they can hire on the off chance they are right. … But if they are wrong and things deteriorate anew they can shed the staff and sit waiting again for the upturn.” Well what kind of an approach to people is that? I can see it is the approach of the National Party. I think it is very sad that a major bank—one that used to be a New Zealand bank and is now an Australian bank—is making it clear that it thinks one can take people on in the upturn and flick them off on the downturn and that will have no consequences whatsoever. That is very very sad and I regret it a lot.  
Trial periods are something that many of us have used when we have employed staff. It is often the way when young people come into jobs. They often have trial periods better known as probationary periods and in the entire time that I have been a member of Parliament I have not had anyone come to me and say a probationary arrangement has not worked. 
Shane Ardern 
: Who would come up to you? 
Hon TREVOR MALLARD 
: As a member of Parliament dozens of people come to me every day. I visit businesses in the electorate every week and their problem is actually the opposite of that. Even with the current anxiety around the economy the problem is at the other end: hiring staff especially with adequate skills to do the job. The problem is one of finding the staff with the necessary skills sometimes finding the capital—[ 
Interruption 
] The member over there says we should abandon training and employ people who do not have the skills. 
Chris Tremain 
: No. 
Hon TREVOR MALLARD 
: That is a Tremain approach that is a Hawke’s Bay approach and that I think is the approach of a number of Tories who have not really thought carefully.  
The member had a very large real estate company. Probably the people were contractors but he almost certainly had a few people that were employed—quite a lot of people who were employed. Did the member have problems sacking them when they did not work out? Did he ever try a probationary period? No there is not a murmur not a word not a whisper from the member opposite. He knows that it is not a problem. He has been a relatively big employer in his time and he is telling the House he has not had problems. I heard that the member was quite a good employer and most good employers do not have problems at all. But what we are doing here is passing legislation for ratbag employers: those who are not prepared to put a bit of time into the employment practices who are not prepared to put a bit of time effort and energy into hiring staff who are not prepared to do the training that is necessary and who do not care about the human relations aspect of employment.  
I think it is sad that the member who has been overly influenced by her Exclusive Brethren clients has got to the point where they are dictating the legislation that is coming to the House. My only question is why she does not wear a scarf. 
Hon Dr WAYNE MAPP (Minister of Defence) 
: 
 I have to say that the last speaker the Hon Trevor Mallard is living in some kind of alternative reality based on the hogwash he was saying and on the extraordinary cloth-cap socialist dogma he was trotting out—something from at least 80 years ago. Frankly that kind of speech should be treated with the ridicule it deserves.  
I ask whether the member on the other side of the House is completely unaware that only two countries in the entire OECD do not have trial periods of the sort being put forward in the Employment Relations Amendment Bill. Members on the other side of the House always talk about Scandinavia—that it is the miracle place and that it has the most advanced social legislation the most progressive workers’ rights and so forth. Well I have news for members on the other side: those countries all have probation periods. In fact this bill is in large measure modelled on some of those probation periods. They have chosen a period of 90 days. Other countries actually have a probation period of 6 months. Some have 1 year. Britain used to have 2 years then it reduced it to 1 year. Australia has 6 months.  
I drafted a bill not dissimilar to this one some 2½ years ago. I deliberately chose 90 days because it was at the most moderate end of appropriate trial periods. My intent was to reach out to New Zealanders whether they were employers or employees and say that this was a fair approach to the issue. It was not 1 year or 6 months but 90 days and it was voluntary at that.  
We just heard the previous speaker say that under this legislation no one would want to go from a job—and he actually used this example—paying $100000 to one paying $105000. I guess all his friends have jobs like that. I ask whether he really thinks that none of those people have the ability to negotiate and say that they have 20 years’ experience in a particular field and have a lot of references. Those people can tell the employer that they do not need the 90-day trial period in this particular case and that if he or she puts it in then they will not take the job. That is the nature of the negotiations that we expect. I would be surprised indeed if there was any 90-day period in the educational sector involving the New Zealand Educational Institute and the Post Primary Teachers Association. The truth is that negotiations will happen in appropriate circumstances but not in other circumstances.  
One of the extraordinary things that members opposite are arguing is that because of this legislation people will not come to New Zealand. They say that the people of let us say South-east Asia India or the People’s Republic of China will think that if there is a 90-day probationary period in New Zealand they will be going to some sort of hellhole where workers have absolutely no rights at all and can be treated in a completely cavalier way. 
Hon Steve Chadwick 
: That’s right. 
Hon Dr WAYNE MAPP 
: Ha ha! Do people know what those members said? They said “That’s right.” Alternative reality here we come! It is visited on the Labour Party—that kind of statement certainly demonstrates that.  
The people who want this most are in fact new immigrants. The most important thing for them is to get their foot in the door. They want to say to employers to take a chance on them and if it does not work out in 90 days then there is not too much risk. There is the possibility of mediation but employers will not be paying thousands of dollars in legal costs to go to the Employment Court the Employment Relations Authority and so forth. New immigrants want employers to take a chance. That is what they want. Because I represent North Shore I talk to huge numbers of immigrants; that is the nature of North Shore. Consistently they ask employers—particularly if their English language skills are not quite all there yet or if they have qualifications that New Zealand employers do not fully recognise or more accurately do not understand—to just give them that chance and they will satisfy all of their concerns because of their work ethic and the skills that they will demonstrate in practice. Then the employer will say that it was worth hiring them.  
The 90-day period will help that group more than any other group in society. So why on earth would Labour seriously suggest—as the junior whip Steve Chadwick apparently believes—that this provision will turn immigrants off? Actually they are probably the group that is most forthright in arguing for this provision. The other groups that will particularly benefit I think are people starting their first job. They are the ones who again say that they have a lot of skills and are really keen and enthusiastic and want employers to just give them a go. They want to prove themselves to employers through the way they work. Some employers particularly smaller employers find it difficult to make the decision to hire someone.  
We have deliberately shifted this bill away from the one I introduced 2½ years ago. In fact the consideration by the Transport and Industrial Relations Committee of the hundreds of submissions led to quite significant changes. One of those changes was to ensure that there would be written warnings. Another way was to ensure that there would be mediation. Another way was to ensure that human rights discrimination which I had originally said would be dealt with through the Human Rights Review Tribunal would stay with the Employment Court and the Employment Relations Authority. There was never any suggestion that fundamental human rights would not be covered by a process of litigation but the view was taken to keep the process within the Employment Relations Authority and the Employment Court rather than put it with the Human Rights Review Tribunal. I thought that was a fairly logical approach. Those adjustments were made and they are entirely reflected in this bill. 
A further adjustment is very important as well: the probation period is available to employers who employ 20 people or fewer. That is very deliberate. We know—and a lot of evidence on this issue was presented at the select committee as well—that larger employers get a lot of advice on the way that they employ people. They have human resources consultants and all that sort of thing. In addition when they take on a new person it might be one person in 25—4 percent of the workforce. If things do not work out it does not have a huge impact really in terms of the business as a whole. But if a small employer with five employees takes on one person then that person is 20 percent of the business and that is very significant. It is very significant if that person does not work out—if the person is overly disruptive does not fit into the team or does not have the appropriate skills. It does not affect just that one person; it affects everyone else in that organisation. That is why we have proposed the limitation of this measure to smaller employers. Not only is there the issue of having human resources consultants and all those sorts of things but also there is the issue of scale—the impact on a very small business of a person whose placement does not quite work out.  
I have to ask myself why on earth Labour is spending so much energy on opposing this bill. Does it not just make those members look a bit ridiculous? Does it not just confirm to the New Zealand public why they are in Opposition and why on the basis of their performance to date they are likely to stay in Opposition for some considerable time? This is a reasonable measure. It has been pitched at the lowest end of the OECD scale—at 90 days. We have ensured that there are mediation and human rights processes in the bill. People will not lose a job—and should not lose a job—because they are pregnant or something of that nature. That would be fundamentally wrong and— 
Hon Clayton Cosgrove 
: “Should not.” 
Hon Dr WAYNE MAPP 
: People will not in fact because people will immediately have rights through the Employment Relations Authority to deal with that. They will have rights through the authority just as they do now. That will not change.  
I tell members opposite to look at the practice of the other modern democracies that we always compare ourselves with. If it is good enough for them with all of them doing far better than New Zealand in terms of growth and prosperity then surely we need to match it. This is a sensible reasonable and appropriate proposition to help New Zealand get going. That is why this Government was voted into office: to help New Zealand get going. That means all New Zealanders. 
Hon JIM ANDERTON (Leader—Progressive) 
: 
 If the Employment Relations Amendment Bill is such a reasonable sensible and incredibly good bill then why does the National Government not put it before a select committee and show the rest of New Zealand how good it is? The National members should be proud to put it into the select committee process and let every New Zealander know exactly what is in it and have a say on it. Then they could show people how good the bill is and trumpet it all around New Zealand. But no here we are under urgency with a party now in Government whose members previously said when members on this side of the House were in Government we were usurping democracy right left and centre yet the first act those members do with a bill is to remove it from the select committee process.  
Earlier in the debate I heard the exchange between the Minister of Labour and Mr Mallard about the Exclusive Brethren and illegal representation. As a Christchurch member of Parliament all I can say is that I hope one of the constituents or clients the new Minister of Labour then had was not the one who took up a fictitious address in my electorate and a fictitious name and who took out full-page advertisements in local newspapers including the Christchurch  
Star 
 on the day before the election accusing me of murder and mayhem at the Christchurch Hospital. I hope that person was not one of the new Minister’s clients then.  
The proposal for a 90-day trial period is by its very nature a complex idea. That is because it changes the basic relationship between employers and employees. I heard someone shout across the Table: “Where are the employers?”. Well I have been one of them for 15 years in my own manufacturing and engineering company. Around 700000 people change their jobs every year and two-thirds of them work for small businesses so literally hundreds of thousands of people will be affected by this bill. That is one of the reasons that it should be referred to a select committee. Because so many people will be affected the law will almost certainly have perverse effects and unintended consequences. If the Government does not allow full scrutiny of the bill by a select committee it will almost certainly fall into the trap of causing such consequences to come into effect. Let me give members a couple of examples of that. 
I just heard the previous speaker say that this measure would especially be of benefit to immigrants. Let me give members the example of an immigrant who gets a 2-year work permit to come to New Zealand and part of the reason the person gets the immigration approval is that he or she has a 2-year work permit. The immigrant goes into a job and after 30 days he or she is fired. Where does the person go then? He or she will end up at the social welfare department claiming an unemployment benefit. The members of the party that is now in Government used to rail against that happening yet they are now telling us this bill is great for immigrants. I ask who in their right mind would move their whole family to New Zealand with a 2-year work permit under a law that says they could be fired within 30 days? And what would a migrant do then? That makes a mockery of the immigration laws for a start. We can see the scamsters lining up with schemes right now. They will be handing out job offers by the hundreds and letting people take up those jobs. With full legal authority they will then fire the immigrants who will pop down to social welfare offices and register for the dole. That is just one thing.  
Let me give members another example. What happens to someone who has been in a job for 10 years and who switches jobs and is fired after 40 days? That will be a disincentive for people to change jobs. One of the things we want is productivity in New Zealand. Sometimes people are in the wrong job and would be much better in another one but if they were to leave that job they would leave the sanctuary of having any kind of protection under the law for the first 90 days of a new job. I ask how that helps productivity. It will not happen all the time—of course it will not. There are many many good employers; they are the overwhelming majority. But I lay odds that it will happen all right and we will see examples of that as we go along. That contributes to a stagnating economy not a productive one.  
I can think of better ways to achieve the Government’s ends without getting such perverse outcomes as that and so would many other people if they had the chance to make submissions to a select committee. Those are the sorts of details that come up when there is an adequate opportunity to scrutinise bills in a select committee. I thought we had moved past this situation. This is probably one of the benefits or disadvantages of having been here in the House for a long time but I can remember when Governments used to ignore select committees. They used to tell members not to worry about submissions to just get a bill back here to the House without change and we would press on. This Government is actually short-circuiting that process by not even referring bills to the select committee in the first place and that is going back to the really bad days. There are details that as I say come up when bills are examined carefully through a select committee consideration process. When we make laws unnecessarily under urgency in this way we very often make mistakes—bad ones—and everyone knows that. I am sure members opposite do too; such mistakes are well proven in our parliamentary system.  
We have one of the best select committee systems in the world. I have been in a Commonwealth parliamentary group that wrote a book about select committees and public consultation in Parliament and New Zealand came out at almost No. 1 in the Commonwealth in terms of its select committee process. This is not one of the great days for supporting that process. We have that select committee process firstly because we have one of the flattest legislative systems in the world. It is a unicameral Parliament. There is no second Chamber and we do not have separately elected executives and legislatures so our checklist is the select committee process. That is our constitutional protection and this Government is avoiding it. It is avoiding it for no good reason because this bill presumably does not come in until 1 April so even a peremptory period of consideration by a select committee is possible. In its first act in this Chamber the Government is denying that.  
We have a select committee process secondly because we have strengthened it over time not because Governments have discovered some pixie dust of select committee scrutiny but because Governments have recognised that we make better law and get a better political process by doing so. Select committee hearings allow bills like this one to be changed in order to fix unforeseen problems—and I will bet members there will be some in this bill. I have named only a couple of them but I bet there will be other problems that have not been mentioned and would have been if the bill had gone to a select committee. If Governments do not refer their legislation to select committees they are back here in a month or two or three either amending bills after they have been passed or defending the indefensible. Those Governments are put in a position where bad things start to happen and because they do not want to admit they have made a mistake they start to defend the indefensible. If that happens within months of being elected that is a slippery slope that you will go down—I mean to say the Government not you Mr Assistant Speaker.  
One way or another the Government will regret not sending this bill to a select committee. In my view it is a mark of a mediocre and weak Government that it is so lacking in confidence in its ideas that it is too frightened to put them before the scrutiny of a select committee. The more that Government members say how great this bill is the more we wonder why they are not prepared to open it for scrutiny. There is no reason why this bill needs to be passed under urgency—none whatsoever. There is no reason why it needs to be passed without select committee hearings and that raises the question of why on earth the Government is doing that. Has some kind of secret commitment been given to somebody? There is no reason to do this. If the bill returned from a select committee without amendment because it is such a brilliant and flawless piece of law the Government would be able to take great credit for that. So why does the Government not refer the bill to a select committee? I think it is because this process admits to an arrogance and a weakness on the part of this Government that augurs pretty poorly for the outcome for it.  
I raise one more issue. The bill requires that those people who are in KiwiSaver get their employer contributions on top of their existing pay. People who opt into joining KiwiSaver could face being fired under the 90-day rule when they tell the boss they want a superannuation contribution. Do members think that will happen often? No I do not think it will. But I certainly think it will happen and we will be staring down the barrel of that. That is what we have employment laws for not because most employers are bad employers. In fact bad employers are relatively rare. But bad employers do exist and we need to protect people from their exploitative behaviour. The beauty of the select committee process is to raise those issues.  
This bill is further evidence if we needed it that the Government is focused not on the business measures we need in order to increase our economic performance—because this bill will not help that; actually it will make it worse—but on mean-spirited ideas that are all about shifting around the way the cake is cut up instead of growing it. If the Government was really serious about productivity it would be encouraging employers to do everything they can in the first 90 days of employment to make sure that people are trained educated and helped to do a good job. Then they would not have to worry about the silly nonsense we have here. This bill is all about the balance between employers and employees not about growing a pool of prosperity from which both can draw.  
SUE BRADFORD (Green) 
: 
 As members may have noted when I spoke earlier during the first reading debate on the Employment Relations Amendment Bill one of the main concerns the Green Party has about this legislation is the way in which there is no obvious or visible protection for workers who are laid off under the 90-day provision and who then will at least in some cases be subject to the 13-week stand-down at Work and Income. Both the Minister of Labour Kate Wilkinson and Dr Nick Smith have indicated that in fact this is not the intention of the Government but I have seen nothing in the explanatory note of the bill or in the content of the bill itself to provide any reassurance on this matter. The Green Party would like to see the bill amended to ensure that someone who is dismissed during the 90-day period cannot be subjected to the 13-week stand-down mandated by section 60H of the Social Security Act. I will be lodging a Supplementary Order Paper to this effect during the Committee stage.  
The Minister has since in her second reading speech and in a media release indicated that it is clearly not her intention to force people into the stand-down period and I am very relieved by that. However there is still nothing in the documentation so far to give me any assurance that this will not happen. For example the press release frequently asks questions and talks about people not facing a stand-down unless they have been dismissed for misconduct. The problem with this is that under the new legislation there is no legal grievance process so there is no way of establishing who is right or wrong when it comes to a disputed situation.  
I will give an example of how this might work. Let us say that David is employed as a barista in the café down the road and after 2 months the boss sacks him because he reckons he might have given free coffees to a mate. That is misconduct. He tells David this and sends him on his way. David goes to Work and Income to apply for the unemployment benefit. Work and Income asks him and the employer why he has been dismissed. The employer tells Work and Income that it is because of misconduct and that is that—David has no income for 13 weeks. However David disputes the situation and says he never gave away free coffees and that he was not fired for misconduct but for no reason at all.  
At this point how will Work and Income judge the facts of the case? David cannot go to the Employment Relations Authority or to the Employment Court to get a ruling from them and I doubt that the Work and Income case manager would want to spend hours if not days determining the rights and wrongs of the situation. In fact it is far more likely from my experience in dealing with the department that in most cases the case manager will simply take the employer’s word for what happened in the situation—that it was misconduct—and David will end up destitute and ultimately probably a drain on our criminal justice and/or health budgets. 
A second issue in this area is that as far as I can see there is no requirement under the new law for an employer to actually give the employee any reason at all for his or her dismissal. Thus when individuals turns up at Work and Income and are asked why they were sacked again it will be up to the good will or otherwise of the case officer on duty to determine whether they should be subject to the 13-week stand-down period.  
In her speech just a short while ago while discussing this very issue the Minister attempted to clarify the Government’s approach when she said that they did not intend that beneficiaries going into work or those who would be later eligible for the new redundancy assistance which the Government is evidently going to bring in before Christmas will be subject to the 13-week stand-down unless they are dismissed for misconduct. Well OK sort of; and I welcome that further clarification from Ms Wilkinson.  
But what about all those employees who are in their first 90 days on the job but who are not on a benefit when they go into a job? Most new employees are in fact not on the benefit when they start in a new job. They will have come from another job or they will have come from a school a training institution or a university. Many of them are not on the benefit at all. And what about all those other workers who will not have been on the benefit but who also will not be eligible for the Government’s planned redundancy assistance?  
Although of course I have no idea about the details of what the Government is planning we were told by National during the election that there were going to be quite a few restrictions around who would be eligible for the new redundancy package including one that said that only those who are laid off after 5 years in the workforce would be eligible. If that is still to be the case of course a whole group of employees who have been in the workforce for less than 5 years would again miss out on this protection.  
I think this whole imbroglio of uncertainty loopholes and glaring gaps in application or potential application just on this one comparatively little issue of the stand-down period is a very clear demonstration of why a bill of this complexity and significance should go through the whole select committee process. If we had had a chance to receive advice from officials to hear submissions from organisations and groups that have expertise in this very complex area—if we MPs had had a chance to debate and consider these problems—then this bill would be a whole lot better and we would have a chance to work together across the House to try to deal with something that is going to be really serious for those affected once this bill goes through.  
The administration of our welfare system is a bureaucratic nightmare. It is a morass of accretions of regulation and law that overall is not geared ultimately to err in the best interests of beneficiaries when there is any doubt or confusion about a particular situation. For this reason and given the Government’s concern which I welcome that people should not be unfairly subjected to the 13-week stand-down I call on the National Party and other parties in the House to support my proposed amendments. If the amendments are not properly drafted or quite right—and very likely that will be the case because of the very short time we have had to draft them—I welcome the Government’s support in redrafting and putting up better amendments.  
The National members also keep talking about how this 90-day trial period is going to be by agreement. They seem to neither care nor understand the total imbalance of power that characterises the relationship between an employer and someone applying for a job. As I discussed earlier in the House today this is one of the most vulnerable moments in a worker’s relationship with his or her employer. Most people who are keen if not absolutely desperate for a job will agree to anything in order to get it even if they are deeply unhappy about the required conditions of employment that they are being asked to sign up to. This imbalance is only made worse when other factors enter the picture such as migrants desperate for a New Zealand job and without good English language skills perhaps young workers who are often very intimidated in these kinds of situations or people who have disability or illness issues or criminal issues who are very much on the back-foot when they enter that situation and are trying to get work.  
This bill is not about providing some kind of lovely social service to poor unfortunate migrants ex-prisoners and youth as some Government speakers have sought to portray it in the House today. Giving people a chance at a job and then taking it away again through dismissal at will without legal protections actually deepens the exploitation of the many in our society who struggle at the low and most powerless end of the job market. I am sure that once this bill goes through we will start hearing some really sad stories from people who thought they were being given a great opportunity to enter the workforce. For example what about ex-prisoners or migrants finally getting a job—very happy self-esteem suddenly boosted all their dreams coming true—then 1 2 or 3 months into the job they are dismissed without reason or without apparent reason and find themselves back on the scrapheap? At this point they are unemployed again. There are a whole bunch of new issues to deal with.  
It is bad enough being out of work but being sacked without reason is even worse. Dismissal often leads to feelings of despair and a massive loss of self-esteem. When this happens to people who are already struggling with other issues in their lives the outcomes can be devastating. I spent 16 years of my life working with people in these kinds of situations. I predict that once this law takes effect and some of our less scrupulous employers start using it mercilessly there will be a number of casualties. People will revert to crime or become seriously drug and alcohol addicted and suffer other health problems. They will face family breakdown and in some cases people actually do take their own lives in these kinds of situations. It is a real pity that this Government does not seem to understand the human impacts of what they are doing here. However it is even worse if they do comprehend those impacts and are going ahead with it anyway. Ultimately it is people’s very lives that are being played with here. 
DAVID GARRETT (ACT) 
: 
 I rise to make a short contribution on the second reading of the Employment Relations Amendment Bill. The picture being painted particularly by Ms Bradford and others on the Labour side is of most if not all employers. I notice that the only one who did not paint that picture was Mr Anderton who has been an employer himself. But the story from the Opposition side has been almost universally about the horrid horrid employer and the poor victimised employee. Yes that does happen but we have heard no horror stories from the other side. Ms Bradford noted I think correctly that at the hiring stage there is an imbalance of power between employer and employee and it is on the employer’s side. 
Darien Fenton 
: Oh! 
DAVID GARRETT 
: No no—I said that the balance of power is in favour of the employer. The employer until he or she makes that magic decision and says “You’re hired.” he or she for whatever reason in his or her own head can refuse to make the offer. The employer at that point—up to when that hiring decision is made—does indeed hold the balance of power. But once that decision is made the balance of power shifts hugely. 
As I said earlier in my first contribution I have practised employment law for 15 years—since it became a speciality—mostly in fact representing employees successfully very successfully. It was often a case of shooting fish in a barrel because of hapless employers who got one little detail of the process wrong. That is all that was needed. For an aggressive employment lawyer as I was who knew my stuff that is all that was needed. If the guy did not give 3 hours or a day to get legal advice—bang he was gone. If he made a decision too quickly went and had a cup of tea out the back and did not leave it overnight—bang he was gone. We heard a story from Ms Dalziel and who but a most hard-hearted person could not feel sympathy for the young fellow who went and took his life—I am trusting that those facts are as stated—of course that is terrible. Who would wish that to happen?  
But there are horror stories on the other side. I dealt with several of them and I know of many many more. One that sticks in my mind is from a few years ago and if I have got the facts not completely right I hope the House will forgive me but this is largely correct. The owner and employer of a small rest home arrived late one night to check on the residents and found one of the nurses badly affected by cannabis and residents lying in their own faeces and urine in their beds. The employer to use the vernacular went off her head and sacked the nurse on the spot. She the employee was gone right there. In the Employment Tribunal as I think it was in those days the referee had no difficulty at all saying that this was a substantively justified dismissal. In other words there was every good reason to sack this person without notice. But process was not followed. The referee went further: the referee bent over backwards to try to be fair and said that although this was an unjustified dismissal because of lack of process the employee had contributed 75 percent I think from memory to her own misfortune. So whatever remedy was to be granted to her was reduced by 75 percent. But the employer still lost because the employer I think a company had to pay 25 percent of $10000 or $15000—I cannot remember—plus 25 percent of the employee’s legal costs plus 100 percent of the company’s own legal costs. 
I am not saying for one second that every employee is like this. Of course they are not. I have brought many personal grievance cases for employees that were entirely justified and they got paid well out of them. But often it would be a case where frankly the employer had simply made one little mistake and that weighs very heavily on employers when making a decision to employ as I said in my first contribution. 
This bill is in fact a very moderate bill. It protects employees for 90 days. As I said at the start of this contribution Mr Anderton was the only speaker who acknowledged that there were bad employers and good employers. There are also bad employees and good employees. It is not difficult for a slacker to put on a good show for 90 days and then suddenly on the 91st day—bang. I acted for some—I should be ashamed I suppose—“serial PGers” as we used to call them. They knew more about employment law than I did and were intelligent people and well read. They would even tell me the latest case. I am not making this up. OK they are a minority but they happen and any employer who is properly advised is aware of that when he is thinking of hiring a new person. So the situation is not one-sided. It is not the poor hapless powerless employee and the horrid lord of the manor situation entirely. Like everything in life it is not quite that simple. 
Trial periods as another speaker in the Government noted are now common throughout the Western World. The media reported yesterday—and I am not certain whether it is correct—that only two countries in the OECD do not have trial periods where personal grievance procedures are precluded: Denmark and New Zealand. So we join the majority if this bill is passed in its present form. I understand that until 1998 all new public servants were required to serve trial periods with no redress for a minimum of 6 months and up to 2 years. Well that would have saved a lot of money would it not on some of the bad decisions? 
The other side said quite rightly in my view that a select committee process is desirable in most situations. But this bill effectively has already been there. It is a version of an earlier bill—Dr Mapp’s bill—and incorporates I understand some of the several hundred submissions that were made to the select committee at that time. Effectively the bill has already been scrutinised by a select committee; submissions were received. I understand that employers at that time were unanimous that this was a good idea in terms of promoting employment. In comparing the two bills I can see they are quite clearly different. But they do not need to have much difference to make quite a significant difference. It is like those words “shall” and “may” in law. They are only single words but they make a world of difference. This bill effectively has already been scrutinised by a select committee. 
Employing someone is a major decision for any business. It seems to me a bit as if the work expands to fit the time available in large firms and the employing process can last 3 weeks but for small businesses it is a major commitment. They do not have human resources departments normally in my experience. Firms with nothing fewer than about 100 employees have human resources departments but the human resources managers in small businesses are the owners. They have to set aside time to interview people try to make an assessment try to check references make a judgment and hope to hell they get it right because if they do not they pay the penalty. 
As I said at the start of this contribution I am quite firm in the view that after the hiring decision has been made the power and balance shifts very much to the employee’s side. The speakers on the other side said something like “All the employer needs to do is be fair.” That is not so—it takes only one small mistake of process. I think in 60 perhaps 70 percent of employment disputes where money is paid out through the Employment Relations Authority the reason is process. The answer is generally that the decision is substantively justified but procedurally unfair and that unfairness can be tiny. 
This is not an unreasonable bill. It is a bill that will promote employment and I would have thought that every member of the House would be inclined to support it. 
Debate interrupted.