Wilkinson Kate: Employment Relations (Flexible Working Hours) Amendment Bill — Second Reading 
Wilkinson Kate: Employment Relations (Flexible Working Hours) Amendment Bill — Second Reading 
[Volume:641;Page:11618] 
KATE WILKINSON (National) 
: 
 In speaking to the second reading of the Employment Relations (Flexible Working Hours) Amendment Bill I would like to preface my comments by saying that National believes that flexible working hours are a good idea in principle. We acknowledge the benefits of flexible working arrangements where possible and we acknowledge that good employers who wish to keep their good employees may do so by offering such flexible working arrangements. We believe in flexible working arrangements. We are not debating here the desirability of flexibility; we are debating the necessity of prescriptive legislation. Good flexible working practices however should not be enshrined in inflexible rigid unworkable legislated processes and procedures. Good flexible working practices should be encouraged to position employers as more competitive employers attractive to prospective employees. 
I was interested to read recently the words of the Law Commission in its statement of intent. It stated: “the Commission continues to be concerned that there is insufficient questioning of whether legislation is the most appropriate vehicle for giving effect to policy. Proliferation of forms of law making may result in unnecessary legislation and over-regulation resulting in a body of legislation that lacks coherence and may work against the need for law which is both understandable and accessible.” This is a classic example of the warning of the Law Commission. Can I also however congratulate the Law Commission which has as one of its policies for 2007 and 2008 a policy to develop and implement a flexible working practices policy—not to legislate but to develop and implement a flexible working practices policy. We applaud that. It is to “position the Commission as a more competitive employer”. It is not to legislate but to position the commission as a more competitive employer. That is what flexibility in the workplace should be about not about putting in place a mass of rigid processes and procedures that both the employer and the employee have to wade through. 
We think that common sense should be able to prevail. We have heard that this bill seeks to provide a statutory right to certain employees—not to all but to those working over 10 hours a week or 40 hours a month—and they can request a variation to certain terms and conditions of their working arrangements and place duties on their employers who receive such requests. Those employees who will be entitled to make such a request are those who have the care of children under 5 or disabled or dependent relatives. This is not a bill for everyone and in fact it could lead to employers employing those not caught by this legislation—not because they do not believe in flexibility but because that flexibility should not be at the expense of rigid processes and procedures. 
An employer under this bill must deal with such a request as soon as possible but within 3 months by advising whether the request is approved or refused and if refused by explaining the reasons for that refusal. The grounds for refusal—and I admit they are reasonably sensible—are an inability to reorganise work among existing staff an inability to recruit additional staff a detrimental impact on quality a detrimental impact on performance an insufficiency of work during the periods the employee proposes to work some planned structural changes a burden of additional costs a detrimental effect on the ability to meet customer demand and an undermining—interestingly—of the terms of a collective agreement where the work done by the employee making the request comes within the coverage clause. 
Employees at the moment can ask for flexibility and for a change in their working arrangements at any time. Employees have a duty under the good faith provisions of our existing legislation to reasonably consider that. Under this bill the employee who has made such a request may not do so again for 12 months. Now employees can do it whenever they like and it has to be listened to. Under this bill the time is limited to being within 12 months of the request. That is rigid inflexible and does not make sense. 
If the request under this bill is refused then we have processes and procedures. If the employee is dissatisfied he or she may refer the refusal to a labour inspector then it can go to mediation. If mediation does not resolve it it can go to the Employment Relations Authority which may order the employer to reconsider and may also order compensation of up to 8 weeks’ pay. There is also recourse of course from the Employment Court right up to the Supreme Court. This is all because an employee and an employer are not being accorded the common sense to organise their own working arrangements for the mutual benefit of both. 
We are not convinced that this legislation is necessary or that this addition of yet another piece of prescriptive legislation will increase the number of persons getting flexible working arrangements because it does nothing. It does nothing to increase the ability of businesses actually to provide these arrangements. 
It is also important when considering legislation to be passed that some consideration is given to the effect it will have to the problem it is supposed to be addressing to the solution it proposes and to the question of whether that solution will actually work may work or may in fact do the exact opposite of what it is trying to achieve. Do we actually have a problem of lack of flexibility in our workplace? It was noted during the select committee process—in fact I think by the Families Commission itself—that this bill was to educate but that legislation was not necessarily the best way to educate and that no other alternative was being considered. No other alternative other than legislation in relation to flexibility has even been considered. This bill is not necessary. National does believe however in education on mutual benefits and we do believe that education on the benefits of flexibility is necessary. 
I want to refer to what the author of the bill stated before—that much of the support for this bill seems to rely on UK legislation. In fact the commentary on the bill states: “Our consideration was influenced by legislation introduced in the United Kingdom in 2003 upon which this bill is based”. But there is a word of caution because the advice also included: “There are questions as to the extent of the impact of the UK flexibility legislation because there are methodological inconsistencies in DTI-sponsored research on the impact. The DTI results are not necessarily supported by research from other organisations. There is no accurate pre-legislation baseline of information to measure from and often the surveys do not distinguish between those eligible to request and those not eligible.” We were further advised that the current set of labour market economic and social conditions in New Zealand does not present a close enough match to any of the countries considered in this analysis for that country’s solution to be the obvious choice. I think it is dangerous therefore to rely solely on UK legislation as a precedent for our country. We should be making laws that are suitable for our employees and our employers. 
I have to ask what the problem is. What is the mischief that this bill sets out to fix? We have heard—and some of the figures differ a wee bit but I am not going to dispute those—that a survey of around 500 employers showed that flexibility in the workplace was implemented by 83 percent of companies—83 percent of companies already implemented flexibility in the workplace. 
Hon Member 
: How many? 
KATE WILKINSON 
: It was 83 percent. Some of that was through reduced work hours some was through working from home and some was study time. There was a  
New Zealand Herald  
survey which members will know. The questionnaire asked: “Do you agree to flexible working hours?”. Eighty-six percent said yes they did agree to flexible working hours—so do we. To the question: “Should flexible working hours be voluntary or mandatory?” 98 percent said that flexible working hours should be voluntary and that is what National agrees with. 
I will quote from an example because I have had a lot of traffic in mail opposing this bill. One employer said: “Put simply I do not believe this amendment is necessary for our company or the great majority of companies in New Zealand. In our workplace any requests for changed workplace arrangements are considered carefully and we always go out of our way to assist whenever we can and we do this voluntarily. We do not need a law to tell us to do this. We recognise our business could not operate without happy and valued employees. Many of our staff have young families and over the past few years I have strived for work/life balance for our staff.” Flexibility may be the way forward; legislating for it is not.