Bradford Sue: Employment Relations Law Reform Bill — First Reading 
Bradford Sue: Employment Relations Law Reform Bill — First Reading 
[Volume:614;Page:10671] 
SUE BRADFORD (Green) 
: 
 The Green Party is delighted that this bill aimed at reforming and improving the Employment Relations Act has finally reached the House. Although we have reservations about some aspects of the Employment Relations Law Reform Bill we are certainly in full support of its key aims and objectives. It is over 3 years since the Employment Relations Act passed into law and probably like others here today I remember 2000 as a period of parliamentary trench warfare. It was a year in which National ACT and representatives of big business acted as if the New Zealand economy would collapse as a result of the Employment Relations Act coming in while those of us on the other side of the House knew well enough that all we were doing was enacting a very mildly reforming piece of legislation that would do away we hoped with the worst excesses of the Employment Contracts Act era. 
I think most people realise now that the fears of the right did not come to pass. As has been shown in practice the Employment Relations Act has not even achieved some of the quite moderate goals for unions and workers that we had hoped for back in 2000. For example I thought the Employment Relations Act would sort out the whole question of the right to collectively bargain in that employers under the concept of good faith would have to seriously negotiate with workers and their representatives once the process was under way. I was quite naively surprised when union people began to tell me that some employers simply will not and do not negotiate dragging things out for months if not years. This is simply unacceptable and certainly was not the intention of those of us who supported the Employment Relations Act. 
When this unwillingness to negotiate is combined with the decline in union membership we begin to get some pretty shocking statistics coming through. For example bargaining is shrinking in the private sector whereby in 2002 to 2003 there was a 29 percent decline in employers who were party to a collective agreement. 
I am delighted that the new bill before us today aims to ensure that some of the loopholes employers have found will be closed. Among other things the concept of good faith is clarified and strengthened. Employers must bargain on all issues before them and penalties and remedies are strengthened for serious breaches of good faith. Underpinning this the bill makes explicit that the process of collective bargaining should result in a collective agreement unless there is a genuine reason not to. 
Another area of deep concern to us has been the question of freeloading. Again like others who had worked hard to achieve the Employment Relations Act I believed that the new Act would pave the way for a steadily increased unionisation of the workforce and start to turn back the clock on the massive de-unionisation that happened in the 1990s. However the reality has been quite different. As reported at this year’s biennial conference of the New Zealand Council of Trade Unions in New Zealand we still have only 21.3 percent of workers covered by collective agreements. At the same time 73.3 percent of the workforce overall remains un-unionised. 
In the private sector things have become even worse since the introduction of the Employment Relations Act and four out of the five largest unions in the private sector experienced a decline of membership in 2002. Only 12.4 percent of private sector workers are in unions and out of a group of comparable countries only the United States has a lower density of union membership than New Zealand. Those are telling figures. 
Part of the problem is that some employees continue to have an attitude entrenched in the Employment Contract Act 1990s that unions are simply bargaining agents. On top of this a number of workers know that they can get the benefit of collective bargaining by unions anyway so they do not even bother to join a union at all riding free in perpetuity on the backs of those who do care enough to pay their weekly fees. 
While that may please people like Simon Power Business New Zealand and the rest of the ACT and National parties it does not please those of us who believe that the only real way to address the ongoing imbalance of power between employer and employee is to maintain and develop strong effective trade unions. The Green Party is therefore pleased that this bill will put in place at least some measures that will assist in discouraging employers from continuing to undermine unions by freely handing out the benefits of the collective in ways that actively encourage de-unionisation. However we are concerned that the provisions aimed at stopping freeloading do not go far enough and we will be working closely with unions during the course of this bill to see what can be done to strengthen this aspect of the legislation. 
A third area where we are particularly pleased with the new bill is around employment relationship problem resolution. We look forward for example to seeing mediation services being made more flexible greater clarification around issues like what exactly constitutes unjustifiable dismissal in a personal grievance situation and a greater focus on any settlements that result from mediation being directed towards applicants rather than being a primary and ongoing source of income for a vast army of lawyers. 
Fourthly and perhaps the most significant issue for the Green Party in this review of the Employment Relations Act is around what was called the transfer of undertakings when we were working on the Employment Relations Bill and is now being called “protecting employees’ interests in change of employer situations”. During the first Employment Relations Bill process the Green Party fought really hard to try to keep the original protective clause 66 of that bill but unfortunately at that time Labour felt obliged to cave in to what looked to us like big-business pressure to withdraw that clause. Since then there have been several ministerial advisory groups working on this admittedly extremely complex issue. While it has taken a lot longer than we would have hoped it is great that the Government has finally come back to the House with a bill that includes a solid framework for employment protection in restructuring situations where the legal ownership of a business changes and the same work is being undertaken by the new employer. 
Provision is now made in this bill for a two-tier system with one lot of specific provisions providing a high level of guaranteed protection for categories of employees who are seen as particularly vulnerable such as workers providing cleaning catering and laundry services and with a second lower level of protection being afforded across the board to all other employees who are not part of that first group as defined in the bill. 
While at first glance this new framework may seem overly convoluted I believe that after all the negotiation in this area that has gone on over the last 4 years it is a well-worked compromise that goes a long way towards ensuring that in future people will have far greater protection when a business changes hands or work is contracted out. 
The Green Party is committed to equal pay and to equal pay for work of equal value—pay equity. Although the Government has seen fit to update the equal-pay legislation in this bill and we are pleased to support some improvements such as increased penalties for non-compliance we are very disappointed that it has not taken this opportunity to progress pay equity and begin the process to end wage discrimination in the workforce. With the Pay Equity Taskforce report due soon we will be discussing with the Government how any recommendations from this committee can be incorporated into this bill. 
Finally I would just like to touch on one particular aspect of the Employment Relations Law Reform Bill about which the Green Party does have really grave concerns. This relates to clause 35 which inserts a new section 100D into the Employment Relations Act and establishes a new procedure called the codes of employment practice. This new policy would allow the Minister of Labour to make codes about how the Act should be applied when industrial action is taken in the health sector. If this section of the bill is passed the Minister of Health will be able to decide after consultation what limits should be put on strike action in the interests of health and safety in both the public and private sectors. This is an extraordinary measure to be undertaken by a Labour Government particularly when one considers that private sector health employees will be affected. 
I have only to think of nurses and other staff at the Redwood Lodge in Rotorua and their current dispute where a private employer is putting high profit margins above the interests of very low-paid employees to wonder what on earth the Government’s intentions really are. Would it see the Minister of Health using section 100D to stop the Redwood workers striking for very moderate pay claims and improved staffing ratios? Will the Government seek to use this section to undermine the Nurses Organisation’s well-known plans for an intensive campaign for fair pay in 2004? 
The Employment Relations Act already contains provisions that require hospital workers to give 14 days’ notice of strike action and includes provision for mediation during that time. There are also legal limits on strike action being taken at the beginning of bargaining. These restrictions already make it more difficult for health workers to go on strike than was the case during all the years of the Employment Contracts Act. Section 100D of this new bill gives the Minister unusual power during times of industrial action by health employees. As the Minister is also ultimately responsible for the funding of health pay settlements this measure gives extraordinary control to someone who is both funder and de facto employer. 
I know that nurses and other health professionals are not saying that they do not care about health and safety during strike action; rather they believe as does the Green Party that legislation already adequately covers the issue and that voluntary codes of practice between employers and unions are a far better way forward than this kind of singular legislative control. 
The Green Party does support the Employment Relations Law Reform Bill before us this afternoon but I can assure workers and unions around New Zealand that we will be doing our best to improve this bill as it goes through the select committee process.