Fenton Darien: Employment Relations Amendment Bill (No 2) — Third Reading 
Fenton Darien: Employment Relations Amendment Bill (No 2) — Third Reading 
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DARIEN FENTON (Labour) 
: 
 I rise to speak on the Employment Relations Amendment Bill (No 2) with a very heavy heart. My thoughts and solidarity are with the Pike River miners their families their workmates their fellow union members and of course the Greymouth community. Although we are focused on getting the miners out safely this tragedy has much wider impacts. The workers of Pike River Coal who were not in the mine at the time of the explosion are wondering if they will have a job in the future and now face real uncertainty about their employment. The children and families of other miners in other mines are now fearful about their family members—their sons and fathers—going to work. It must be incredibly frustrating for search and rescue workers and their families. An accident like this shames us all. There will be a time for questions once the recovery of the miners is completed. It is a terrible time for all involved and it will not be quickly forgotten. 
I cannot understand therefore why the Government would think that it was appropriate to have this bill and the employment relations bill to follow debated in the House today. I believe that it is pretty crass and thoughtless to have today the third and final reading debates of these bills which whether the Government admits it or not are stripping away workers’ rights. I can only think that it is because this Government does not really appreciate the contribution and the terrible sacrifice sometimes that workers make in playing their part in our businesses and in the economy. 
This bill is a backward step in New Zealand employment relations. The Government has failed to make the case that any parts of this bill particularly the provisions on access the 90-day trial extension and the changes to personal grievance measures are needed. The Minister of Labour’s own department the Department of Labour raised real questions about the necessity of any of these measures and Treasury even though it supported the bill in principle stated that there was a real lack of robust evidence for it. It is bad lawmaking when we rush into something on the whim of an idea without the proper research and without the background. 
Thousands of submitters expressed opposition to this bill but they were ignored; 22000 workers marched and rallied and John Key shrugged. Professor Erling Rasmussen of Auckland University of Technology said that New Zealand is now under this bill one step closer to an American hire-and-fire model. He also argued that it is difficult to see how the bill will improve the productive employment relationships of well-organised employers. He stated: “This appears to be a clear hand-up for disorganised incompetent employers … This is not just a whittling away of employee rights; it heralds a fundamental shift in employer-employee relationships in New Zealand workplaces.” He went on to state that it was not “a trivial change to employment relations” and that “Even under the hated Employment Contracts Act 1991 this was not a feasible option for low paying high turnover employers.” Even the professionals are questioning the bill. 
I noticed that in her speech the Minister called opposition to the 90-day trial period and other measures “hysterical”. I find that incredibly insulting. As I said earlier the research by the Minister’s own department on the 90-day extension to the trial period was highly flawed. The department managed to speak to 3000 employers but to just 13 workers and even then the department failed to demonstrate that the people the Government was claiming would benefit from the provision of its measures—such as migrants Pasifika Maori and young workers—had actually been given jobs they would not otherwise have been given. 
One of the first workers to take a case under this bill Heather Smith a pharmacy worker has called on Parliament to spare other workers the experience that she suffered under the 90-day fire-at-will law. As we go through the third reading debate I tell members that she has said: “I don’t want what was done to me to happen for many more vulnerable workers in their first 90 days on the job. I was fortunate that the employer in my case made a mistake and enabled me to take a case but if they had done everything according to the 90 day law”—in other words if the employer had got the paperwork right—“I would have had no opportunity to question my sacking.” We can just consider for a moment the impact that that would have had on a young worker such as Heather Smith. She was not allowed to question why she got the sack and would never have known the reason. At every job she went to from that point on there would have been a question about her curriculum vitae and what had happened during that period of her work because she had been with that employer for some time in another workplace. 
People who get fired under this legislation will experience an ongoing impact on their life. Under this bill we are talking about real people and real examples and the fact is that this law will impact on the most vulnerable: those who are least able to question their employers those who are low paid and those who are on a benefit are then sent to a job by Work and Income and are not able to turn it down. It has been confirmed by the Minister of Labour and the Minister for Social Development and Employment that workers in that position cannot turn a job down because a job with a 90-day trial period is treated like any other job. If workers turn a job down they will be stood down from their unemployment benefit. 
The Minister talked again about choice saying that the scheme was voluntary. But what choice does a worker have in that situation? How can that be voluntary? That is utterly ridiculous and as I have said the Government has completely failed to make its case. The provisions on the extension of the 90-day trial period are simply unjustified. We know that the only reason those provisions are being extended to all workplaces is that the Minister has been rolled by the ACT Party. That is what has happened. 
I turn to the provisions on access. The Minister is right in saying that these two provisions have had a lot of attention but that does not mean that there are not a lot of other concerns with this bill. If I have time I will go on to discuss those concerns but first I will talk about what happens with access at the moment. The current law is very very specific about the requirements of a union organiser or representative as they go on to a work site. There are a number of things they have to follow through. The provisions in the Employment Relations Act came about from case law that was developed under the Employment Contracts Act. People are fearful about these provisions because under the Employment Contracts Act which was not nearly as strict as this legislation there was terrible trouble. There were court cases up and down the country. I was involved in one to do with a hotel employer who said that unions were like interfering mothers-in-law and as such should never be allowed in the workplace. He used to go about asking who wanted to see the union and put the names of those people up on the noticeboard. Then when the union organiser came the employer put them into a room after calling them along one by one—people who were worried about their jobs. He exposed them in that way giving them a message that the union was not welcome on the job. That is why people are nervous about access. 
I am also interested in the whole provision on health and safety in relation to access and in why the Minister decided even though she had a draft Cabinet paper provided to her on 11 August by the Department of Labour that access consent would not be required in situations of health and safety. We heard the example from my colleague Trevor Mallard about a worker being sexually harassed but I ask about a situation of health and safety when a union representative is required to come on to the job and deal with a situation that is urgent and needing to be dealt with. There are many many other things which if I had the chance I would talk about. I am concerned about the changes to the test of justification and about the removal of reinstatement as a primary remedy. Clearly I do not have time to go into those issues but they are concerns. This bill is so badly done that it will create a lawyers’ charter and we will pay the price on this bill for years to come.