Fenton Darien: Employment Relations Amendment Bill (No 2) — Second Reading In Committee Speaker Recalled 
Fenton Darien: Employment Relations Amendment Bill (No 2) — Second Reading In Committee Speaker Recalled 
[Volume:668;Page:15386] 
DARIEN FENTON (Labour) 
: 
 Thank you for the opportunity to make a contribution to the debate on Part 1 of the Employment Relations Bill (No 2). This is the substantive part of the bill. As the previous speaker Michael Woodhouse said there will be a lot of discussion. But the key thing I want to talk about in my first contribution is the access provision in clause 5. Michael Woodhouse has put forward the National point of view and I want to put forward the Labour Party point of view and also the view that we heard from all of the union submitters and all of the union members who came to the Transport and Industrial Relations Committee. They came in large numbers and expressed real concern about the unnecessary restrictions that are being put on access. 
What is interesting about this whole thing is that it is really a solution looking for a problem. If we go right back to the regulatory impact statement that goes with the bill we know that the Department of Labour advised that “There does not appear to be widespread evidence of union representatives exercising their current rights to enter workplaces in an inappropriate way resulting in disruption for business operations …” and so on. It went on to say: “The Department has no evidence to suggest that unions are not in general meeting this requirement” under the existing Employment Relations Act. 
The existing Act contrary to some beliefs around this Chamber already has a number of restrictions relating to access. There are quite specific requirements on union organisers and representatives entering workplaces and a number of conditions have to be fulfilled. It is not carte blanche. They cannot just walk into the workplace without having regard to any conditions like health and safety or security without telling the employer on the premises and so on. The conditions in the Employment Relations Act actually come from case law that was developed over many years. In fact under the Employment Contracts Act there were incredible problems and incredible difficulties with access provisions which I think is why the unions are fearful that this restriction will lead back to those problems and indeed back to the courts. This will be a bonanza for lawyers. 
The only reason I can see for this provision to be in this bill is that it was a National Party manifesto pledge. It was one line in its manifesto. Like many of National’s promises before the last election it obviously was not well-thought-out; it was just one of those ideological things plucked from thin air and there it was in the manifesto. I accept that given that National had said it would do it it had to do it. I accept that even though it has decided to do some things that it did not say it would do which are in this bill. As I said the bill will be discussed quite vigorously I imagine throughout the morning as we go through it. As I say other than that I cannot understand why we are even having this debate about access. I cannot understand it because there is not a problem. But this provision will create a whole lot of problems and the Transport and Industrial Relations Committee heard about them. I do not accept the example that Michael Woodhouse gave about unions—that McDonald’s I think was complaining about unions being unreasonable. Under the existing law employers have the ability to do something about that. They could have stopped that behaviour. I do not condone it. But I do not see anything in this bill that will stop that sort of behaviour. If errant union officials are rushing into workplaces and disrupting things they will do that anyway—they will do it anyway. The employers will have to prosecute them. They will have to go through the court. There will be a court decision about what this provision really means. There will be litigation all the time. It will be an absolute nightmare. 
One of the other things I am really puzzled about is that the initial Cabinet paper on access that Cabinet signed off stated that this provision would not apply if a union organiser was seeking to access the workplace to look after the health and safety of his or her members. That was in a Cabinet paper dated 11 August 2010. It was advice that was supported by the Department of Labour. Apparently it was drafted but it never made it into the bill. If the Minister in the chair the Hon Maurice Williamson is able to tell me I would like to know what happened to that provision about health and safety.