Mallard Trevor: Employment Relations Amendment Bill — Second Reading In Committee 
Mallard Trevor: Employment Relations Amendment Bill — Second Reading In Committee 
[Volume:651;Page:408] 
Hon TREVOR MALLARD (Labour—Hutt South) 
: 
 I want to thank the Minister in the chair the Hon Kate Wilkinson albeit in a relatively limited way for her response. I counted about 15 questions that were asked and she was kind enough to address one of them. But unfortunately— 
Hon Phil Goff 
: But not answered?  
Hon TREVOR MALLARD 
: Well she did answer it but unfortunately she got the answer wrong. The question is one of mediation and earlier I asked her whether someone is in fact still an employee after he or she is dismissed. She quite correctly pointed out that section 144 of the Act—and in particular subsection (2) in paragraphs (b) (c) and most important (d)—refers to persons. I think if clause 67B(4) had referred to persons then they would be caught. Unfortunately unlike the primary Act the amending bill refers to employees. These people are not employees because their employment has been terminated. I do not want to suggest reconciliation because I do not want to get as close as that but in the spirit of helpfulness I ask the Minister whether she is prepared to accept an amendment that changes “employee” to “person whose previous employment agreement” or similar words.  
It is not a complex issue but there is a difference between the Act and the amending bill. A court would not be able to go to these issues; there could be declaratory judgment but an individual could not take a case. It is possible a court could go there around a declaratory judgment. I am sure some of my learned friends will be able to outline that relatively soon. The court tends to think that Parliament does things deliberately and if it says that a person whose employment relationship that has broken down and terminated can go to mediation but in the amendment it says an employee—and clearly it is not an employee—I think it could well be the case that a court would say on the basis not of an individual case but on review if the question is part of a case stated that Parliament has acted deliberately. They will think that we know what we are doing. They will think that the Minister knows what she is doing and that she has acted deliberately. 
Rt Hon Helen Clark 
: Very unlikely. 
Hon TREVOR MALLARD 
: The former Prime Minister says that it is very unlikely that the court would think that; unfortunately I tell the member what happens is that we ask the courts to take us seriously and to consider that we do things deliberately. There is a clear differentiation here from what is in the Act in section 144(2) paragraphs (b) (c) and (d) where it refers to persons. I accept the advice that it refers to persons. I then ask the Minister why this clause of the bill does not refer to persons. 
The CHAIRPERSON (Lindsay Tisch) 
: I ask the member which clause he is referring to. 
Hon TREVOR MALLARD 
: I am referring to the clause the Minister referred to in her reply. 
The CHAIRPERSON (Lindsay Tisch) 
: We are debating Part 1 not Part 2. I bring you back to Part 1 as that is the part we are debating. 
Hon TREVOR MALLARD 
: Sorry Mr Chair I am quite happy for one of my colleagues to continue on that. I thought it would be useful.  
I raise a point of order Mr Chairman. Are you going to rule on Mr Brownlee’s interjection while you were ruling? 
The CHAIRPERSON (Lindsay Tisch) 
: No we are just carrying on. 
Hon TREVOR MALLARD 
: I am therefore happy for my colleagues who have comments to continue given your direction that this matter be considered and I think considered very very carefully.