Employment Relations Amendment Bill (No 2) — Second Reading In Committee Speaker Recalled 
Employment Relations Amendment Bill (No 2) — Second Reading In Committee Speaker Recalled 
[Volume:668;Page:15375] 
Employment Relations Amendment Bill (No 2) 
Second Reading 
Debate resumed from 11 November. 
LYNNE PILLAY (Labour) 
: 
 I am very pleased to stand with my colleagues and continue my speech in very strong opposition to the Employment Relations Amendment Bill (No 2). I think that when I was interrupted for no other reason than the House rising last time I was talking about the effect on young people of the 90-day “sack at will” legislation being extended to every employer in the country. I remember what happened a very short time ago when the Minister ploughed the 90-day trial through the House under urgency. Of course the Government said then that the legislation would affect only employers with fewer than 20 employees. Under this bill that practice will now extend to every workplace in New Zealand. So this is a very very sad day for workers’ rights and indeed for job creation. 
It is ironical that the Government says it is intent on creating jobs growing the economy and getting us on to a level with Australia in terms of wages and conditions. That is just a joke when every step that the Government takes undermines the ability of workers to get a fair deal. Our concern is all about workers in New Zealand having the ability to get a fair deal without fear of retribution or fear of being undermined. It is all about equalising the employment relationship because if people think that new employees who go into a workplace now fearful of being sacked within their first 90 days of employment have an equal relationship with the employer they are dreaming. 
I acknowledge that there are many many good employers in this country but there are a tremendous number of good employees as well. My concern and the concern of members on this side of the Chamber is about the way that all those good employees are to be treated unfairly— 
David Bennett 
: It only works one way. That’s true for Labour isn’t it? It’s only for one side. 
LYNNE PILLAY 
: That is all right thank you Mr Bennett. We are concerned about the way that employees are treated when they enter the workplace and start the first 90 days of their work. The Department of Labour’s survey revealed that the workers it interviewed felt vulnerable and were concerned about job security and that nearly a quarter of workers were sacked within that 90-day period. If anyone in New Zealand thinks that a quarter of the people in the workplace are not worthy of retaining their job I think that is an appalling indictment. That is what the National Government obviously thinks because it has given employers free rein to sack people—and often they are young people—without any reason whatsoever. Maybe an employer does not like the employee’s hairstyle or the employee wears an earring. Employers do not have to give people a reason for sacking them. 
Darien Fenton 
: Could be too much sauce. 
LYNNE PILLAY 
: That is right; they could put too much sauce on the food. That is absolutely appalling. 
If my memory serves me correctly I am pretty sure that someone from the Government benches said the survey findings meant that 75 percent of employees kept their jobs. Well whoop-de-doo! If we think that a 75 percent retention rate after 90 days for new employees is acceptable that is a real indictment on this Government’s thinking—if it is thinking. 
Also while I am on the subject of employment rights I point out that if workers do manage to get through the first 90 days and then subsequently take a personal grievance for wrongful dismissal reinstatement is the primary remedy under the current Act if it is found that they were wrongfully dismissed. I think that is a very good thing; so does my colleague Darien Fenton. Why? Because it states that retention of employment particularly in this environment is the most important thing so if an employer has unjustifiably dismissed a worker then reinstatement should be the primary remedy. We all know that if the employer is an absolute bully or if there are irreconcilable differences between the employer and employee then of course the employment will not continue but that should be the primary remedy. This bill removes reinstatement as the primary remedy so even if a worker is dismissed unjustifiably—that is it is deemed by the Employment Court or by the whole proceedings that the worker is not at fault—the person still does not get the job back. That person will join the thousands and thousands of people in the unemployment queue because this Government is not creating jobs. Apart from the fact that this is grossly unfair it is offensive and is just plain dumb. 
This legislation is not about creating jobs and it is not about retaining people in work. It is just about tripping back to the 1990s under a Government that simply cannot get out of that mode. Although under the previous Labour Government we had finally put ourselves in a position where New Zealanders could hold our heads high internationally because we had labour relations that stacked up this back-to-the-future lot is taking us back to the 1990s. We are being taken back to a time of shame back to a time of people being fearful of losing their jobs back to a time when workers’ conditions were slashed— 
David Bennett 
: Oh come on! 
LYNNE PILLAY 
: “Oh come on!” says Mr Bennett the chair of the Transport and Industrial Relations Committee. This Government is bad enough but the chair and the Government members on that committee did not listen to the vast majority of the submitters who opposed this bill. That chair made a mockery of the select committee process. I congratulate the Labour and Green members on their minority report because what the chair and the Government members did on the committee was absolutely shocking. 
I thank Mr Assistant Speaker Roy for letting me know that it is time for me to close this speech. I look forward to the Committee stage on this bill. Thank you. 
ALLAN PEACHEY (National—Tamaki) 
: 
 Goodness me what a tirade of hyperbole and exaggeration! I think I said in my first reading speech that in this House during this debate on the Employment Relations Bill (No 2) we are seeing a re-creation of a world that ceased to exist many many years ago. The once-proud Labour Party proud to represent the working class of New Zealand now simply wants to re-create the class wars of the 19th century without recognising just how much the world has changed. 
This legislation is all about greater flexibility and about greater responsibility for workers whether or not they choose to belong to trade unions and employers. I suspect that I am like many probably all members on the Government side of the House and probably like most New Zealanders in that I am getting sick and tired of seeing employers—those people who take out mortgages on their homes to start their businesses and to keep their businesses running and who often go without and whose families often go without to make sure that the workers are first and foremost paid—being kicked around. But then again if we step back to look at them who are these Labour members debating this legislation? They are certainly not the representatives of the working class. 
In fact that begs the question of where the next great working-class leader of the Labour Party is. The party has not had one for 40 years; the one it had then took a long time to develop. Where is the next one? I tell the House that that person will not come from the core membership of the current Labour Party. The core membership of the current Labour Party is no more than a group of trade union officials. I was staggered when this legislation was being debated last time the House sat to hear during Mr Henare’s speech that those people on the other side whom I have heard boasting of having led strikes also continued to take their wages at the same time. I wonder how many New Zealand families tremble at night at the prospect of a bunch of trade union officials who now control the Labour Party taking their husbands and wives fathers and mothers out on strike so they can build a reputation for themselves and so they can get a bit of publicity with absolutely no regard for the good of the working-class people of New Zealand. 
Darien Fenton 
: I raise a point of order Mr Speaker. I thought we were on the second reading of the Employment Relations Amendment Bill (No 2) and were not talking about the trade union movement and Tau Henare’s strike bill. 
The ASSISTANT SPEAKER (Eric Roy) 
: Yes the second reading is the tightest of the three debates and I would ask the member to draw his analogies into the second reading. 
Chris Tremain 
: Speaking to the point of order— 
The ASSISTANT SPEAKER (Eric Roy) 
: No I have ruled. 
ALLAN PEACHEY 
: I will pass just one observation which is that it is interesting to note just how sensitive that crowd over there are to the truth about the real nature of trade unionism in New Zealand and to what that party now represents. Thank you. 
Hon TREVOR MALLARD (Labour—Hutt South) 
: 
 I say to the honourable member Allan Peachey who preceded me that he reminds me of Jekyll and Hyde. He goes to the Education and Science Committee and is a highly competent chair there which is in absolute contrast to what happens when he goes to the Transport and Industrial Relations Committee. At the Education and Science Committee he is someone who gets the business through and who can work with the Opposition and with his colleagues. He is a highly talented chair using his experience. Then he comes into the House and hears industrial relations legislation being debated and it is as if he was back as the employer in a bulk-funded school and it is pretty pathetic. It is almost like a reversion; he is back in the past back in the Dark Ages. 
It is amazing that Allan Peachey’s colleagues cannot see his talent—the way that he can take on roles. I am not sure what he taught when he was at school. Maybe it was English because he certainly gives the impression of being a drama queen and has an ability to take on different roles and different characters when he comes into the House. 
I have had a bit to do with Allan Peachey recently. I actually think that the reason why Allan Peachey is closer to the truth—but I admire him for his ability to come into the House— 
Chris Tremain 
: Mr Speaker how is this relevant? 
Hon TREVOR MALLARD 
: After that Mr Assistant Speaker wants me to narrow my speech. He is intervening on those members’ side but not on ours. That is interesting—[ 
Interruption 
] There was a point of order earlier. It is not that I am referring to it because that would be inappropriate but the member— 
The ASSISTANT SPEAKER (Eric Roy) 
: Yes the member is referring to it. He must get on with the speech. 
Hon TREVOR MALLARD 
: I note the wide debate that Allan Peachey was allowed by the Assistant Speaker. I will now focus on this Employment Relations Amendment Bill (No 2) and look at how this legislation fits very well with the attempt being made by John Key and his Government to drive down the conditions of wage earners and salary earners all around the country and in particular in the Mana electorate. 
This bill is focused on poor people. It is designed to drive out the gap between the rich and the poor between the Aussies and the New Zealanders. This is a bill designed by John Key to make sure that his mates do not have to pay decent wages to people who are wage earners and salary earners. These amendments are unfair; they are absolutely unbalanced. In fact they are about as balanced as Allan Peachey’s previous speech. The amendments are unnecessary because our system is working pretty well already. The amendments are ideological. We can tell from where they were announced that ideology not logic was involved. The amendments were announced at the National Party conference. They were hauled out of the blue with promises of consultation that were broken by John Key. 
It is interesting to see how often now John Key is being caught breaking his word. One thing that Kiwis think is important is truthfulness in their leaders. This is a good example of how John Key has been caught being untruthful and not being loyal to his word. He made a commitment on this legislation to go back to people and to talk about it before it was announced and he broke his word. He did that deliberately. 
We have a Prime Minister whose word cannot be relied on—a Prime Minister who time and time again makes a commitment and breaks it. One of the things that Kiwis value in their leaders is that they are people who tell the truth people who are reliable and people who do not break their word. Kiwis also like loyalty from those people. What do we have now? We have hundreds of photos of John Key and Pansy Wong smiling and waving— 
Hon Tau Henare 
: I raise a point of order Mr Speaker. I ask whether we should not just concentrate on what is front of us. 
The ASSISTANT SPEAKER (Eric Roy) 
: I will be consistent. I ask members to read the suite of Speakers’ rulings on pages 106 and 107 of  
Speakers’ Rulings 
 about what is and what is not in the bill. In the same way that I asked Mr Peachey to draw his analogies into the debate on the bill I ask this member to do the same. 
Hon TREVOR MALLARD 
: I will focus on Pansy Wong and the changes in the Employment Relations Amendment Bill (No 2) that apply to her. This is a four-pronged approach in an attack on job security. A loyal employer someone who was a good manager would not weaken the processes in the way that they are being weakened here and were weakened for Pansy Wong. Arm in arm with Pansy Wong was the Prime Minister going around the ethnic communities until there was a problem and where was his loyalty then? It was a case of “smile and walk away”. The amendments extend the range— 
Sandra Goudie 
: I raise a point of order Mr Speaker. I fail to find the relevance of what the member is saying to this bill. I fail to see how he is responding to the fact that we are speaking on this legislation when his comments seem to have no relevance to it whatsoever. I am very concerned about that. 
Hon TREVOR MALLARD 
: Speaking to the point of order I say the bill has a lot to do with job security processes for dismissal rights to appeal and rights to reinstatement. All of those apply to Pansy Wong. 
The ASSISTANT SPEAKER (Eric Roy) 
: Members are still expected to discuss the main purpose and contents of the bill. I ask that members do that. If they are making analogies then they must draw them into the main purpose of the bill. 
Hon TREVOR MALLARD 
: This bill makes it easier to dismiss people and harder for them to be reinstated. It is absolutely clear that that is part of the purpose of this legislation. We now have a classic case under the existing legislation where Phil Heatley jumped and was reinstated and under this legislation Pansy Wong will go and will not have a hope of being reinstated. Why? Because there is no loyalty on the other side of the House and members opposite do not care about processes as we go forward. 
John Key tried to sell this bill as part of a plan to grow the economy but we all know what the evidence is in this area. In New Zealand we have people who will not change jobs for fear of this legislation. We have what is known internationally as a sticky labour market. We used to have a pretty flexible labour market. In fact I have had debates with some of my colleagues in the past about how our labour market was perhaps too flexible. But people could go from job to job to where they would be valued to where they would be paid more and to the opportunities and that was good for our economy. But this bill says to people that if they are on $100000 it might be worth going to a job paying $110000 but that will be no damned good if they will lose the job in the first 90 days. What sort of security for one’s family is that? It is about the same sort of security that Pansy Wong had and about the same sort of loyalty that Pansy Wong was shown. 
It is clear that there has been no attempt on the part of the Government to close the wage gap with Australia because this legislation is designed to drive down conditions for wage earners and salary earners in New Zealand. It is the intention of this Government to drive down conditions in order to make wage earners and salary earners earn less so that the Government’s mates can make bigger profits. That is a very short-term approach because all the international evidence now shows that when workplaces are working well together—where workers are valued where they are trained where their skills are better where there is a two-way commitment and where workers know their employer will not do the “smile and wave” goodbye or take the “smile and walk away” approach towards them—workplaces become more and more productive. Profits go up and everyone is better off: the owners the managers and the wage earners and salary earners. 
New Zealand already has amongst the most flexible labour laws in the developed world. I think it is fair to say that during the time of Margaret Wilson and when I was the Minister of Labour a pretty deliberate decision was made not to go back to the rules of the 1980s to take a more progressive approach to attempt to get something that New Zealanders could unite behind and to have some consistency in labour relations legislation over a period of time. We had an indication from the National Party even before the election that it also thought that was the case. But what we clearly have now is an approach from National that it wants to drive down the conditions of people around New Zealand. 
It shows gross incompetence on National’s part that it is choosing to progress this legislation and progress other legislation later that takes away peoples’ holidays as it goes into the Mana by-election. People in Mana are among the most disadvantaged and they will be affected the most by this legislation. I do not know whether Gerry Brownlee hates Hekia Parata or whether he is just incompetent—it might be both. It could be both but debating this bill under urgency while going into the Mana by-election is probably the biggest case of incompetence I have seen for a long time. 
MICHAEL WOODHOUSE (National) 
: 
 I am very grateful to the previous speaker Mr Mallard for pointing out that there are differences between this Government and the previous Government. Indeed there was a very speedy process which he claims was quite unfair. I want to contrast that with the previous Prime Minister Helen Clark and her support of Taito Phillip Field. She stood up and defended him and said all that he was guilty of was working hard for his constituents and she paraded around South Auckland with Mr Field in complete defence of the indefensible. Well if that is the contrast between this Government and the previous Government bring it on. I would really like Mr Mallard to talk as much about that as he can. 
He also raised the chagrin that the New Zealand Council of Trade Unions has over the Prime Minister not giving any heads-up to it. Well here is the news: we now have a Prime Minister who does not have to go cap in hand to the unions every time we want to change employment law. We are not beholden to the unions. There is a very sound relationship and if the president of the New Zealand Council of Trade Unions got a bit angry about that I am sure she will get over it. This is a Government that thinks for itself. It does not have to go to the unions every time it wants to make changes and that is a significant difference for employment relations in this country. 
Sue Moroney 
: Why did he promise he would? 
MICHAEL WOODHOUSE 
: I was not there. I do not know what he said but I know he does not have to go cap in hand to Ms Kelly every time he wants to make changes to employment legislation. 
I want to drill into some of the matters that came up during the Transport and Industrial Relations Committee’s consideration of the bill and in particular the 90-day probation period. Again I thank Lynne Pillay for providing an excellent example of how the 90-day probation period will work. She quoted a fellow who lost his job because he claimed he put too much aioli sauce in the pasta. Here is what she did not say. The 90-day probation period will not apply in a situation like that. That case may be before the courts so I will not talk about it specifically but a person who does not sign an employment agreement cannot be subject to the 90-day probation period. So yet again the New Zealand Council of Trade Unions has scored an own goal. This is an example of the process working not of the process not working. No one who does not sign an employment agreement can have the protection of the 90-day legislation which has been in place for a couple of years now. The Department of Labour has done some very good research into how effectively the law is working. 
Members on the other side can take a “glass three-quarters empty” approach to what is going on. But I point out that a great number of those people who were taken on by small businesses under the 90-day provision would not have been employed were it not for that opportunity. It is just too hard otherwise. 
It is also really interesting that of all of the small and medium sized enterprises that were able to use that legislation only half of them did so—only half of the organisations. They did not all rush out and slap on 90-day probation periods. They thought very carefully about when that would be appropriate and when it was OK to take a chance on employees who might be marginalised—they might be coming back from a long period of unemployment or might be new migrants to this country—and give them a chance. But of the half only of the employers that used that provision they did not even use it for all their staff. They used it for only just over half of those staff. So for all the wailing and gnashing of teeth only just over a quarter of the people who could have been employed under a 90-day probation period were. The rest were employed permanently. And here is the good news: nearly 80 percent of them still have their jobs. Nearly 80 percent of them are still employed. For those who are not they were not all sacked. Some of them left of their own volition; for some it simply did not work out. That is one of the consequences— 
Carol Beaumont 
: How many workers were surveyed in that survey? 
MICHAEL WOODHOUSE 
: Enough to make the survey scientific. Nobody is questioning the validity. I understand that members on the other side are worried that those conducting the survey did not speak to employees but it is not employees who are doing the 90-day probation period employing. It is employers. When we are talking to the employers— 
Sue Moroney 
: So they don’t count? 
MICHAEL WOODHOUSE 
: I did not say that. Nobody is putting words in my mouth. Of course they count—that is why we are doing this. I have absolute confidence that when this measure is extended we will see similar discernment from other employers. We had the Association of Salaried Medical Specialists—the junior doctors—come in and say that they would all be put on 90-day probation periods. Well that is nonsense because employers are much more discerning than that. 
Sue Moroney 
: How do you know? 
MICHAEL WOODHOUSE 
: Because I have been one and I know what they are like. As Lynne Pillay said and I will quote from her second reading speech there are many many good employers just as there are many many good employees. But what she did not say is what Labour members really think but do not say out loud which is that they have no problems with there being a few errant employees. They ask why on earth we would want to wrap law up around controlling errant employees but when it comes to errant employers they say we should lock them down. They say we should put all the red tape around them that we can and all the good employers can suffer the consequences of having to put up with that— 
Hon Maurice Williamson 
: Darien Fenton’s saying “Yes”. 
MICHAEL WOODHOUSE 
: Exactly; she has admitted it. Why would she not? It is what she believes. Labour members believe that all employers are errant so we should lock them up in red tape. Well I do not think so. I think employers deserve to be given much more confidence in their ability to grow this economy to employ staff and to have the flexibility that this bill will give them and I support it. 
A party vote was called for on the question  
That the amendments recommended by the Transport and Industrial Relations Committee by majority be agreed to. 
Ayes 64 
New Zealand National 58; ACT New Zealand 5; United Future 1. 
Noes 56 
New Zealand Labour 41; Green Party 9; Maori Party 5; Progressive 1. 
Question agreed to. 
A party vote was called for on the question  
That the Employment Relations Amendment Bill (No 2) be now read a second time. 
Ayes 64 
New Zealand National 58; ACT New Zealand 5; United Future 1. 
Noes 56 
New Zealand Labour 41; Green Party 9; Maori Party 5; Progressive 1. 
Bill read a second time. 
In Committee 
Part 1 Amendments to principal Act 
Hon TREVOR MALLARD (Labour—Hutt South) 
: 
 I think it is interesting that for a bill that is so important and so vital to the economy we have sitting in the chair the Hon Maurice Williamson a junior Minister from outside Cabinet someone with very little experience in this area and one for whom there is so little respect that the officials have not even turned up to support him. I think it is a sad state of affairs when the Minister of Labour herself not the sharpest pencil in the National box is replaced by Maurice Williamson who I think it is fair to say although he has opinions on lots of things would not claim to be an expert in the labour relations area. He does pretty well on statistics but his talent is relatively limited. 
This is the first substantive part of the Employment Relations Amendment Bill (No 2). There will be some more substantive parts as time goes on and extra parts start to hit us here in the Chamber. But Labour for starters has tabled a set of amendments that we will be working through in order to attempt to make this legislation—I will not say palatable but— 
Sandra Goudie 
: He doesn’t even understand it! 
Hon TREVOR MALLARD 
: Sorry? What happened there? That is the woman with the brain of Paul Quinn and the voice of Judy Keall. But I am not quite sure what she said— 
Chris Hipkins 
: You’re not going to be invited to Judy’s for dinner again any time soon. 
Hon TREVOR MALLARD 
: Good. We have a number of amendments here that are designed to make a bill that can never be palatable in being part of legislation that itself is unpalatable slightly better than would otherwise be the case. We have attempted to get the support of the Maori Party and the Greens for some amendments that are reasonable. They are not radical; most of them do not have the substance necessary to turn the legislation round but they would make it slightly better. 
The first amendment for example would put in a clause that would require the employer to provide access to information about a decision to dismiss an employee—and that to me seems just a pretty basic human right. It is part of the fairness that is ingrained in New Zealanders about their relationships at work. If someone gets the sack that person has a right to information about that decision. 
There is another amendment on the issue of the 90-day trial period not being advertised as a condition of employment. I think that is pretty important because at that stage it shows an absolute lack of openness on the part of the employer about whether that will be a condition. One of the things I say to my colleagues is that I think we will get to the point at some stage of good employers doing the opposite. I think that over a period of time we will find that good employers will put in their ads that they do not use the 90-day trial procedures because they trust their own ability to recruit and they trust the processes that flow. 
Michael Woodhouse 
: That’s just what I said. 
Hon TREVOR MALLARD 
: That is exactly right. The member “Michael Woodcock” has just accepted that good employers will not use this system. 
Chris Tremain 
: Point of order— 
The CHAIRPERSON (Eric Roy) 
: I think I can anticipate the point of order—that is that we use correct names. The member did not say “Woodhouse” so I ask him to pay just a little more attention to that in future. 
Hon TREVOR MALLARD 
: I think members on this side understand that members opposite come and go and I get them mixed up over a period of time. Although the member is considerably more talented than the average member on that side it is not a particularly high test. I acknowledge Mr Woodhouse whom I have sat on a select committee with and who regularly supplies me with bottles of wine as his team loses to Wellington-based teams. I acknowledge his name. 
But I want to emphasise what Mr Woodhouse said. He said good employers will not use this system. I go one step further and say I think good employers will make it clear that they are not using this system in order to attract better employees into their workplaces and to give people some security. As I indicated earlier if someone is a talented person who is being well paid has a family to support and maybe has a mortgage such a person does not want to go into a situation even if it is worth a few thousand dollars a year more where he or she could be sacked next week without a reason and without the income necessary to support a family. 
There is another area of amendment for which we are suggesting that unjustified dismissal and personal grievance remedies may be sought when good faith has been breached. I agree with Michael Woodhouse that most employers are good employers. The vast majority of them are good but you know there are some who are not. There are some who are dogs that self-respecting fleas would not sit on. 
Hon Tau Henare 
: Hotel workers union. 
Hon TREVOR MALLARD 
: Tau Henare used to be on the workers’ side against those— 
Hon Tau Henare 
: The hotel workers union was the worst employer in Auckland. 
Hon TREVOR MALLARD 
: There have been a few sacked since Tau Henare’s time. In those days Tau Henare used to go toe-to-toe with employers—in fact he used to go toe-to-toe with union officials too except that he just hit some of them from behind with bottles. Tau Henare knows that it is important to have procedures when there is unjustified dismissal and when good faith has been breached. 
Hon Tau Henare 
: What good faith? 
Hon TREVOR MALLARD 
: That is exactly the point; for some employers there is no good faith. When that is the case there must be a process for their employees. 
Hon Tau Henare 
: Feeling the pressure of Unite union are we? How’s Matt? 
Hon TREVOR MALLARD 
: I understand that Matt McCarten is not very well. I want to say nothing more than that Matt is not very well; that is something we all know. 
There are amendments about communication through collective bargaining because this bill does not require good faith to occur on the part of employers. This bill takes away the requirements for good faith on the part of employers during collective bargaining. 
I ask members opposite what sort of country they want to live in. What sort of New Zealand do they want? Do they want one where we can work together as wage earners and salary earners and employers or do they want to go back to the Allan Peachey approach—the class war? I was trying to work out the analysis that Allan Peachey was giving in relation to this measure when he was speaking in the House and it was actually a Marxist analysis. His analysis was that of someone whom I think has spent quite a lot of time looking at  
Das Kapital 
 and not enough time looking at the way—[ 
Interruption 
]—well Marx and Engels—Kiwis work and what Kiwis’ values are. The cooperation the loyalty and the approach of working together as a team which we pride ourselves on in New Zealand is something that members opposite are trying to destroy from the basis of their outdated ideology—the sort of ideology that now exists in very very few countries that are succeeding. We just do not see that ideology in northern European and Scandinavian countries at the moment and in other countries that are growing. Actually this legislation is just so much worse than that of the Australians and National members want to try to close the wage gap between the two countries. We know that they cannot do that. 
MICHAEL WOODHOUSE (National) 
: 
 I will take a quick call on Part 1 of the Employment Relations Amendment Bill (No 2) but before I do so I acknowledge the retraction of a little faux pas that Mr Mallard made in respect of my name. I can assure the Committee that I have been called a heck of a lot worse than that but I can also assure the Committee that it is not wooden. I will just pick up on a point and tweak the paraphrasing that Mr Mallard made in respect of my comment about good employers not using the 90-day probationary provision. What I said was that some good employers will use it; some good employers will see the need not to use it. Those who do use it might use it sometimes but they will not use it all the time. It is a thing called choice. 
What we heard from submitters— 
Hon Trevor Mallard 
: Whose choice? 
MICHAEL WOODHOUSE 
: That is a very good question and it is the sort of question that submitters to the Transport and Industrial Relations Committee were asked by members on the other side in respect of the choice that employees have if they are offered an employment agreement with a 90-day probationary period in it and they do not feel comfortable about that. The answer was of course that they have a choice: either to accept the offer on those terms or not to accept the offer. 
Hon Members 
: Oh! 
MICHAEL WOODHOUSE 
: Here we go—we hear the wailing and the gnashing of teeth. How terrible it would be that people would possibly back themselves to make their own minds up about the terms and conditions of employment including a 90-day probationary period! 
I will contrast that with Labour’s position on Mr Henare’s member’s bill in respect of a secret ballot for strikes. What Carol Beaumont confirmed was the Service and Food Workers Union position in respect of what union members can do if they do not like the rules that say there must be an open ballot process. What were we told? We were told that members are free to leave the union—if they do not like it they can just go. People who listen to this debate will acknowledge the terrible inconsistency about saying that. 
Sue Moroney 
: They still have a job. 
MICHAEL WOODHOUSE 
: No it is protection but it is protection as long as someone wants to go with the flow and does not possibly have an independent thought about what is going on in the union. If someone does not like it there is the door. We have an inconsistency between choice for employers and employees in respect of the employment relations agreement but no choice for union members if they want to have a secret ballot—“we couldn’t possibly give them that because we don’t trust them.” I think there is a serious inconsistency in Labour’s position on that. 
I will touch for the first time on the issue of access to workplaces by unions because I think we will hear quite a bit about this in the Committee stage. The submissions went something like this: there is no problem so why are we putting in this solution? Actually that was not entirely what we heard. We heard that there were problems. Again there were problems at the margins but as Carol Beaumont tells us the Labour Party believes that as long as there are problems with employers they are to be locked down but if there are problems with a few errant unions and employees there is no need to do that. I think that is another inconsistency. We heard from fast-food outlets in Auckland that unions that had no members in certain workplaces were demanding rights of access at the most inconvenient times. We heard that they were creating high levels of disruption to the business and intimidating and bullying workers some of whom were just 16 and 17 years old into joining unions and that that required a remedy. 
I accept that in the vast majority of places where unions are involved where employees are members of those unions and those relationships are strong access is not a problem. But certain courtesies should be put in place. Even when I had those good relationships particularly with the New Zealand Nurses Organisation there were times when I was quite irked about the fact that I did not know that the union delegates were on the worksite or that they had actually stopped operations during their presence. I would have appreciated the courtesy of knowing they were coming; it does not take much effort to provide that information. 
As the Service and Food Workers Union pointed out it has 21000 contacts involving its union delegates going into workplaces every year and it just does not make sense to put in place an overly burdensome process for arranging access. And this bill does not do that. The bill is not prescriptive in respect of the manner in which access agreements can be reached. They can be ex ante arrangements; they can be arrangements in writing in advance that say that when certain conditions are met union access is granted and the unions are free to come and go. But employers can also have a right to expect that they have sovereignty over the premises that they own or lease. This is an important point. They should have the right to deny access to people who have no business coming in when there are no union employees in the workplace. 
We had an interesting discussion on this point and I think we want to flesh it out further. There are clearly two differing points of view around this question of sovereignty and rights of access. The employers tell us that the workplace is their place and they should have a right to come and go. The unions—and particularly some of the members of the Service and Food Workers Union who came into the select committee in Auckland—had a different perspective on the workplace. They saw it as their place: that they were part of a broader family and that the union delegates—who were not employees but were nevertheless connected to them through the union—should have similar rights to come and go freely. I do not think those two points of view are actually irreconcilable. I think that when we have good workplace relations between the employer and the employee we can have a different point of view about that common ground but still not impede access. I think this amendment will provide employers with an opportunity to better control some quite dysfunctional things that were being described to us in the select committee and for that reason it is a good amendment. 
I can speak for all employers I am sure who have good relationships with the Service and Food Workers Union and say it simply will not be the case—the union can rest assured on this—that when arrangements are put in place it will need to write 21000 letters wait 2 days and get 21000 replies. Those relationships are stronger than that. The bill will achieve better arrangements that will not impede access but that will provide the sorts of controls that are necessary. Thank you. 
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. 
Dr JACKIE BLUE (National) 
: 
 I am pleased to speak in the Committee stage of the Employment Relations Amendment Bill (No 2) and to speak on Part 1 in particular which is definitely the substantive part of the Bill. Part 2 deals just with consequential matters. 
I pick up on a comment made by the previous speaker Darien Fenton who said this bill was the result of a one-liner in a manifesto was not well-thought-through and was ideological. I absolutely refute that. In particular on the extension of the 90-day trial to all businesses virtually every other country in the OECD has a trial. It is actually longer than 90 days in many countries so our 90 days is extremely moderate. The bill is certainly well-thought-through and it will be good—good for workers good for employers and good for our economy ultimately. 
I will focus on the extension of the 90-day trial to all businesses. As members will be aware in 2008 our policy really pertained just to businesses of fewer than 20 people. This bill proposes that that policy be extended to all businesses no matter what their size. This bill will give businesses confidence to expand to diversify and—importantly—to employ workers who do not have a work record. Those people might be migrants youths students or women returning to the workforce. 
I think it is important to note that one cannot just pluck jobs out of thin air. Businesses have to want to offer jobs to workers. The only way that will happen is by giving businesses confidence that they can increase their business and employ more people. 
This Government is absolutely focused on creating jobs and growing the economy. We have a number of measures on that which include tax reform trade—and I congratulate our Prime Minister on the free-trade agreement talks that have started at APEC—and research and development. Another way we are doing it is by boosting infrastructure. 
This legislation perfectly dovetails into our Government’s plan for growing the economy raising living standards and moving forward as a country. It will do that by giving businesses confidence. That is really quite a simple comment. It will give businesses confidence so that they can employ more people expand and have greater productivity so we as a country can more forward in the background of the economic recession that we have been facing. 
Jobs are not plucked out of thin air—they are not plucked out of thin air. The surveys we have done to date show that 80 percent of employees were still in employment once their trial finished. They were not fired let go or dismissed at day 89. This is not a fire-at-will bill as the Opposition likes to call it. That is absolutely the truth. 
The policy is very moderate. Heavens above! As I have mentioned before many countries have trial periods that are much longer than 90 days; they are up to 1 year in some countries. Until we had the 90-day trial Denmark was the only other country in the whole of the OECD that did not have a trial period. We were clearly out of step with the rest of the world. We are not marching alone on this; we are with many other countries. The sky has not fallen in those other countries. This policy will work for business employees and the country as a whole. 
The policy has been positively received. I quote just one employer who talked about this bill. He said: “I felt that under the last Labour Government the odds were well and truly stacked against small businesses. The cost of employing someone was 6 times more when they were voted out than it had been 3 years earlier … We have used the 90 day rule but the person would have been sacked anyway—for stealing! It would just have taken a little longer and caused more stress to other employees and the business.” 
A very interesting survey called  
What Next? National Conversation about Work 
 was done by the Human Rights Commission. A whole lot of myths were absolutely thrown out the window. One of the myths was that employers are bastards. They are not. The survey showed that employers treated their employees like family. Let us face it: we have to have a good working relationship for a business to go forward to grow and to be productive. It was very much a family affair for many of those businesses. There were many other positive comments. 
CAROL BEAUMONT (Labour) 
: 
 I will speak about the combined effects of the provisions in Part 1 but before I do that I note that we are talking about people. When we talk about employment relations legislation we are talking about people. An employment agreement is not like any other contract. It is not about buying and selling a product; we are talking about people. When we talk about the 90-day trial and making it easier—so-called—to employ people we are also saying we will make it very easy to sack people. I think that is important. 
Caritas the Catholic social justice organisation noted in its submission: “Catholic social teaching does not recognise employment contracts as being equivalent to other kinds of business contract such as for the purchase of goods or services. We recognise that these working relationships take place in a wider environment of respect for human rights.” I think that is a very powerful statement. 
The principal Act is called the Employment Relations Act. It is about relationships. This amendment bill changes the balance and takes away rights from people in the workplace—I want that to be put on record. 
I will now talk about the combined effect. A couple of members opposite have talked about our good old values but I say that one of the strongest New Zealand values is a commitment to fairness. We like to think we are a country that believes in giving people a fair go and having fairness for all people. Much of our legislation has been ground-breaking in giving rights to people and making sure they have an opportunity to be engaged and to participate. 
The Council of Trade Unions commissioned some research on the 90-day trial legislation. The survey asked a straight question: “Do you think that all employees should have the right to appeal if they think they have been unfairly dismissed even if their dismissal was during the first 90 days of their employment?”. That is a very straight question. I will put on record the response to that question. The response was that 80 percent of respondents said “Yes”—they thought that employees should have the right to appeal if they think they have been unfairly dismissed including in the first 90 days—18 percent said “No” and 2 percent were unsure. Fairness is one of the key values and New Zealanders believe that it is fair to have the right to challenge an unfair dismissal even in the first 90 days. 
The effect of the provisions in Part 1 will impact on those people who are already the most vulnerable in our society and in the labour market. If we get down to tintacks it will be those who have less bargaining power. The Employment Relations Act outlines a number of key objects and one of them specifically acknowledges that there is an inherent inequality of power in employment relations. That is a fundamental object in our employment relations legislation. 
This amendment bill flies in the face of a fundamental object of the principal Act. It shows a real difference between members on each side of the Chamber. Labour members know that inherent inequality is a reality of the labour market. Members opposite think the labour market is a level playing field—that everybody has the same bargaining power. I say that those members should tell new migrant workers that they have the same bargaining power as others. They should say that to young people going into their first job. They should say that to a mother who is going back to work having been out of the paid workforce for a while. Those members should tell those people they have the same bargaining power as say an information technology specialist or somebody of that nature who has had an unbroken work record over many years. There are differences in bargaining power. Those who will be most affected by the changes in the bill are those who are already most vulnerable. 
It is very interesting that members across the Chamber seem to think that a “take it or leave it” employment offer is fair. Lots of other people do not think in that way. The people in Mana for example probably do not think a “take it or leave it” employment offer is fair. If people do not have a job and they may be getting a benefit or they may not depending on their circumstances they are— 
The CHAIRPERSON (Hon Rick Barker) 
: I call the Hon Tau Henare. 
Hon Members 
: Oh no! 
Iain Lees-Galloway 
: Sell-out! 
Hon TAU HENARE (National) 
: 
 That is what you get from that side Mr Chair. I remember that the worst employer in my day was the hotel workers union. 
David Bennett 
: That’s right. 
Hon TAU HENARE 
: That is right. I wonder who the secretary of the hotel workers union was. I refer to none other than Mark Gosche. Every time I was called out to a job to assist one of the clerical workers in trouble it was always down the road at the—sorry Mr Chair—Northern Amalgamated Workers Union as it was called in those days. Who was the worst employer? It was always the union. On a Tuesday I would get another call from some poor clerical worker who was under the cosh from the employer. Guess who the employer was? It was Ray Bianchi and his mates. They were all the old-style unionists. 
Lynne Pillay 
: Not the ones like the member? 
Hon TAU HENARE 
: Sorry? 
Sue Moroney 
: The worst union organiser in the history of the universe. 
Hon TAU HENARE 
: Oh big yawn! Anybody would think that with this bill the Government had gone back to 1951 and it was about to smash the unions on the waterfront. This is nothing of the sort. All this does is to tinker with legislation to make it more palatable to both sides more palatable to a person an immigrant who is looking for a job and who wants to show his wares who wants to say to the employer: “Look at me. I can do this job and if you give me a chance I’ll show you.” That is all it says. 
Lynne Pillay 
: I raise a point of order Mr Chairperson. I think the member is bringing you into the debate. 
The CHAIRPERSON (Hon Rick Barker) 
: Members on occasions do take the word “you” a bit literally. I did not take it that the member was referring to me; it was a rhetorical question: “give me the job and I’ll show you”. It was not referring to the Chair. The word “you” is not proscribed. It is usable but it is in its context and I did not take offence. 
Hon TAU HENARE 
: Thank you Mr Chair. The exact point that I am trying to make is about somebody who is looking for a job and who really wants a job in whatever profession or whatever job. It is about putting a hand up and saying: “I can do this job and I want to be able to show the employer what I can do.” 
Darien Fenton 
: Like Pansy? 
Hon TAU HENARE 
: Now we hear about Pansy. This has nothing to do with Pansy. The 90-day legislation has nothing to do with Pansy because she has been a Minister for 2 years for goodness’ sake. If it were about the 90-day legislation it would have happened a year and a half ago for goodness’ sake. Talk about timing! They are out of time. [ 
Interruption 
] Who told me to sit down? There is only one person who can tell me to sit down and she is at home. 
I also want to talk about union access. You see we have had 9 years of no manners and no courtesies and we are trying to say that if unions want to go into our workplace into our sovereign territory—as my colleague Mr Woodhouse described it—it would be good manners it would be a courtesy to call or write and say “I’ll be there at 11 o’clock on Tuesday. How about it?”. It is manners it is courtesy and that is what this Government is all about too. If that is exactly what happens now why is there the big hullaballoo? If it is what happens now are we not just codifying what is happening now? So why the big hullaballoo? Why the big question mark from Labour members? Or is it that they are still fighting the battles that have been fought won and lost back in the 1950s 1960s and even in the 1970s? 
LYNNE PILLAY (Labour) 
: 
 As I follow the speech made by Tau Henare I acknowledge the young people who are in the gallery today. They were taught at school to treat people with dignity and respect yet they hear that sort of barrage from the Government side of the Chamber. For Tau Henare to be talking about manners is a teensy bit funny I have to say. 
I will get back to the bill. The Employment Relations Amendment Bill (No 2) as we have said before and will say again is unnecessary and unfair. As I predicted Jackie Blue—whom I have a tremendous amount of respect for as a person; I think she is a fair-minded person—has missed the plot on this bill. What did Jackie Blue say in this Chamber? She said 75 percent of people are keeping their jobs under this legislation. Seventy-five percent of people are keeping their jobs but 25 percent of people are losing their jobs in their first 90 days of employment. That is outrageous. 
As I look at the young people sitting up in the gallery I wonder how they would feel if out of every 100 of them 25 were sacked in their first 90 days of employment for not necessarily any reason at all. What does that say to young people entering the workplace? What does that say to young people who are taught to have good self-esteem and who are taught to have respect? They go to work and for whatever reason—they put too much sauce on the hamburger or they have an earring that the boss does not like—suddenly they are down the road with no explanation whatsoever. That is appalling. 
Let us talk for a moment about the consultation on this bill. The Department of Labour commissioned a report to measure the impact of the 90-day trial period. To reflect the real consequences over 3500 employers were spoken to. That is OK. Labour members would say that speaking to over 3500 employers is a really fair and reasonable level of consultation—over 3500 employers. Thirteen employees—13 employees—were consulted on the impact. I ask members where the fairness is in that. 
Darien Fenton 
: No balance. 
LYNNE PILLAY 
: There is absolutely no balance. I go back to what I said before: this bill is unfair and unbalanced as is the Government—in particular Tau Henare. 
Let us talk about access to the workplace. I tell members that as a union official the only time I had problems with access to the workplace was in the 1990s. I was threatened. I think that everyone here will accept that I am a pretty reasonable person. I know that my colleagues often say I would be one of the most reasonable people in our caucus. Am I right? 
Hon Member 
: Soft. 
LYNNE PILLAY 
: They call me a bit too soft. 
Sue Moroney 
: Too soft. 
LYNNE PILLAY 
: Sue Moroney says I am too soft. The only time I had difficulty with access I had to call the police because an employer threatened me. We are wearing white ribbons in support of anti-violence. That was what happened when access to the worksite was restricted because a bully-boy boss would not let me on to the worksite. 
Hon Tau Henare 
: Where was that? What job was that? 
LYNNE PILLAY 
: I am not going to name the place. I am not going to do that because I do not languish in the past. Unlike that member I do not languish in the past. 
We know that when the Employment Relations Act was enacted under the previous Labour Government the number of disputes went right down. What are we seeing under this Government? We are seeing the number of strikes go up because this Government does not work on relationships. It does not recognise the importance of relationships between unions and employers. How many times have union officials gone into the workplace and the employer has said it knew the official was coming today but it actually has a big order on? The employer asks whether it is OK to put off the meeting and for the official to come back tomorrow. What does the official say? He or she says: “Of course.” That is reasonable. Officials are from the union. They are there to help. 
CHARLES CHAUVEL (Labour) 
: 
 I will speak a little about the proposed provisions for restricting union access because I think my colleague Darien Fenton made some very good contributions on that point. The proposal in the Employment Relations Amendment Bill (No 2) to make access to workplaces conditional on the consent of the employer is very problematic. It is an ideological and deliberate attack on the democratic right of wage earners and salary earners to join unions and resolve issues that arise in the workplace. It is therefore ironic to look at the explanatory note of the bill. It states: “This change is intended to increase levels of choice and fairness for employers …”. Well of course that change comes at a cost and the cost is to employees. They are the ones who lose out in terms of their freedom of choice and their access to fairness in the workplace. 
I hope the Minister in the chair the Hon Georgina te Heuheu might take a call on this; it would be good to hear from a representative of the Government why this change is thought to be necessary. I know that the Minister will want to tell the Committee why this aspect of Government policy has been put in place because the regulatory impact statement as well as Kate Wilkinson’s own policy paper dated 15 May last year says: “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 or adversely impacting on the employment relationship between employer and union members.” That was the point just made by Lynne Pillay. There is no evidence of any need for this change. There is no evidence of abuse; there are not even anecdotal stories being told about unions abusing their current right of access to workplaces. So why is this change being mooted? I hope we can hear from the Minister because if we do not then we have to conclude that it is an ideological change an ideological attack on the unions. 
National might think that will play well electorally but we will see because New Zealanders are becoming sick of these attacks on ordinary wage earners and salary earners. We have seen those attacks already in a number of pieces of legislation and we cannot expect to see the erosion of these sorts of terms and conditions time and time again with no evidence of the need for it. We hear pious speeches in this House all the time about how we should only ever legislate if there is a clear need. That is why we brought in the regulatory impact statement process. Members opposite say we should always be very clear about why we are legislating but it is not clear why this provision is needed. There is no evidence anywhere of abuse. Even Business New Zealand said that this measure was not a high priority for it. It does not receive many complaints from employers about union access. 
The Prime Minister tried to sell this policy to the National Party conference as one of the steps to a “more productive economy and increased employment.” Yet even he in October told the Council of Trade Unions that this issue was not a “driving priority”. So why on earth is Parliament here in urgency ramming through a piece of legislation to restrict the right of the representatives of wage earners and salary earners—ordinary Kiwis—to ensure that workers’ terms and conditions are being met by their employers via meaningful inspection in the workplace? Why restrict workers’ rights to be visited and comforted by their union officials without their being impeded by employers? Why is this being done when it is very clear from the evidence that there is no need for the change? 
The access provisions in the current legislation were very carefully thought through. They are there because it is necessary to ensure that union officials can check whether health and safety employment standards and what have you are being honoured in the workplace. Of course an employer will run into difficulties if he or she is not honouring those standards. Those employers will take advantage of the provisions that Parliament will be enacting in urgency today because only the dodgy employers will want to keep out the representatives of unions. That is plain because there is no evidence of abuse of these provisions at the moment. The access provisions at the moment enable wage earners and salary earners to choose to be represented by knowledgable people in grievance situations. 
LOUISE UPSTON (National—Taupo) 
: 
 I move  
That the question be now put 
. 
SUE MORONEY (Labour) 
: 
 Part 1 of the Employment Relations Amendment Bill (No 2) amends the principal Act the Employment Relations Act. I think that with all of the issues facing New Zealand at the moment if we were to amend the Employment Relations Act we might do something about creating more jobs. We might do something about closing the income gap with Australia. Part 1 does none of those things and in fact it goes in the opposite direction. I will explain why. Despite what the Government is trying to portray this amendment bill does not create one job—it does not create one job. In fact it makes decent working people more reluctant to actually seek to further themselves and progress into another job. It will cause people who have families dependent on them who have mortgages to pay who have food bills to pay and who have school fees to pay to stay stuck where they are— 
Hon Tau Henare 
: No! 
SUE MORONEY 
: —because that is the only way they can have a guarantee of any job security and Tau Henare knows that. He knows and he wants—and John Key wants—New Zealand working people to stay stuck where they are. He knows that that will be the only guarantee for all New Zealanders no matter what sized workplace they work in—that will be the only guarantee of their knowing they can put food on the table next week. The minute they take the opportunity to actually improve themselves to take that step up to take the risk of another job to perhaps change careers or to even just go for progression within their own career they put themselves at risk of the National Government’s fire-at-will bill. That is what Part 1 does: it seeks to take that job insecurity that is in small workplaces and mete it out to every single New Zealander. 
I sat on the Transport and Industrial Relations Committee when this legislation was put up in the last term of the previous Labour Government. It was a member’s bill from Wayne Mapp so we have already visited this legislation in the previous Parliament. The previous Parliament said: “No way! That is not the New Zealand we want to create.” We heard that something in the order of the massive figure of 200000 New Zealanders every year change jobs—or used to. We can double it: 400000—have I got it hugely under? Every year 400000 New Zealanders used to change their jobs and change locations. Maybe it was to get a higher wage; for whatever reason we had that type of labour market. 
I predict that that will come to a screaming halt. In fact we know that it has come to a screaming halt already but it will get worse because who would do that when they have their family dependent on the income they bring in? Who would put themselves at risk? Certainly not the people that we need to come from overseas to be nurses in New Zealand for example and doctors teachers and people whom we need in order to make sure we have the sort of services in this country that New Zealanders rely upon. Are those people going to take that risk knowing that they could face for no reason at all being told within the first 90 days that they are just not suitable? 
It may be that someone just used too much sauce. When we had decent law in this country and fair legislation under a Labour Government if I were to use too much sauce the employer would be required to tell me that I had used too much sauce. The employer would have a conversation with me about the hollandaise or the aioli or whatever type of sauce it may be. The employer would actually have a conversation with me whereby I would come to realise that perhaps I had used too much sauce or perhaps I could say to the employer that the reason I put on the amount of sauce was that it was not covering the fish properly. We could have a normal conversation and sort it out in the workplace. I would not have to lose my income as one chef did because he put on too much sauce. There was no conversation no discussion at the workplace but he lost a job. I am really sad that Michael Woodhouse cannot understand the impact on working people of not having a job. 
Hon PAREKURA HOROMIA (Labour—Ikaroa-Rawhiti) 
: 
 Mr Chair morena. Te pai hoki e tu atu penei tonu e kite atu te ngarara e mau atu mo nga tangata e whai atu i te mahi. 
[ 
Good morning Mr Chair. It is really good to stand so as to see the monster that people seeking employment have to pursue 
.] 
The Employment Relations Amendment Bill (No 2) is one of the most important and relevant issues at this moment. We have seen the Warner Bros debacle and we have seen other debacles and the unions are getting the blame for them. I was really pained to hear the speech from the chair of the Maori Affairs Committee which I sit on. I think he does a wonderful job and I can assure members that if this bill had been referred to the select committee we would have done something about it. But somebody has not done anything about this bill and it is shameful. People will be rolling their eyes in Blackball today people will be struggling in Te Atatu and people will be wondering and pondering in Wairoa. Let us talk about the workforce. 
Hon Tau Henare 
: Where? Blackball? Does anybody live there any more? 
Hon PAREKURA HOROMIA 
: That Maori member opposite should understand better. And I mihi to the Maori Minister in the chair the Hon Georgina te Heuheu. 
Let me point to some real facts. The 90-day bill was supposedly a test to work things out. It jumped from being a test to the whole group of employers being allowed to set sail on workers. This is one of the worst bills that this debating chamber has ever seen. It is an extension. All we have seen from this Government are extensions that hurt families and ruin and wreck their lives: the extension of GST the extensions provided in this bill and the extension of payments to big companies who put their money at risk and the Government finds $1.75 billion for them. Helping workers is not in its psyche. Mr Tau Henare especially should know better. He has been a union organiser and he knows where the people are at. 
I will give people some clear facts about what this 90-day legislation will do. It is unfair it is unbalanced and it is uncoordinated and it is unclear why the Government is doing it—supposedly. But those who know about the labour market know that this is one of the biggest jack-ups in this country in relation to the workplace. It is unfair and it is low-down dirty. I will tell members something from a Maori perspective: nearly 42 percent of Maori women who are between the ages of 15 and 23 have nothing. They are not in work not on benefits and not in study. When we add together the capping of study in universities the changes to make sure that benefit tests are totally unfair and the introduction of this major monster to the workplace I do not know how those people opposite can come to work and say to their colleagues in the Chamber “Good morning”. Shame on them! This bill is an outright disgrace. 
The Maori unemployment rate is now tracking at 17 percent. It is 1 percent behind the rate it was at when National last left Government when we ran it out of town and it left a shambolic mess. This bill is adding to it. What do members opposite have to say about that? The number is three times the mainstream average. What do they have to say about that? People seem to hide away from it as if it does not happen. I say the National members should tell that to the 190 people who have had only 9 days’ work this season at the freezing works in Wairoa. They should tell it to those people who were put out on the streets for 9 weeks. They were just trying to prove the basic issues of the right to collectivise and to make sure that they maintained—not extended—the rights they that had. Those rights are fundamental; they are about fairness equity and all of that. 
The miserable member opposite Louise Upston stood up to call this debate to an end. Shame on her! I see the Minister shuddering in the chair but she knows that it is downright truthful to say that Maori women are really struggling. I have been to food banks and it reminded me of the 1980s. 
Hon Tau Henare 
: What have you got to go to food banks for? 
Hon PAREKURA HOROMIA 
: People need food banks I say to Mr Henare because this sort of legislation sends them there. It stops them getting into work and the displacement factor that is behind a whole lot of other legislation that his Government has pushed through in this term is helping that. This bill is about the rich getting richer it is about the poor getting poorer and it is about trying to pull the rug out from under the unions which is the one platform that many workers have to get by. What is so wrong with unions? 
CHESTER BORROWS (National—Whanganui) 
: 
 I move  
That the question be now put 
. 
The CHAIRPERSON (Hon Rick Barker) 
: I have had a good thorough look through the bill and it seems to me that almost everything of substance is in the first part. There is not much anywhere else. So having said that I am prepared to allow this debate to go on a little longer. But I say to the Committee that on the other parts members can expect pretty short shrift from the Chair and a closer look at things. 
MOANA MACKEY (Labour) 
: 
 I appreciate that National members do not like having to debate employment legislation because they know that what they are doing is absolutely unfair and absolutely not required. The changes that they are making in Part 1 of the Employment Relations Amendment Bill (No 2) are ideological and there is no other basis for them. 
I start by talking about the provision that removes reinstatement as the primary remedy for personal grievance claims. I will talk about the 90-day issue a bit later on but this bill extends that provision to other people. We have been talking a lot about the first 90 days of employment but what happens when someone gets into the period of employment when they are past the first 90 days something happens and a personal grievance claim is taken? If the employee is deemed to have been unfairly treated—for example if they were dismissed unfairly and the Employment Relations Authority ruled in their favour—it would seem only fair that they could be reinstated in the job they should never have lost in the first place if that was what they wished. This legislation removes that ability. This bill states that when someone gets past that first 90 days all that an employer needs to do is get rid of someone and it does not matter if it is unfair because now the employer will not have to take the employee back even if there is a ruling that the person should never have been dismissed from his or her place of employment. 
In a way this bill almost extends the 90 days in terms of removing that security for employees. It says to those employers out there who want to get rid of someone very easily that they can do it because they will not have to take the person back even if they were wrong in removing the person. I cannot imagine why National thinks that is fair. We know that employment law is all about balance. We have to balance the rights and responsibilities of the employee versus the rights and responsibilities of the employer. National thinks that employees should have to bear all the risk in an employment relationship and that they should have no security in that relationship whereas Labour believes we have to strike a balance in the middle that is fair to employers and employees. Neither side will get everything that it wants. That is part of being in the relationship but Part 1 drastically skews the rights towards the employer against the employee. 
The contribution from Tau Henare just showed how incredibly out of touch this Government is with the reality for workers. He asked why if Labour said unions were now really good in terms of access in the workplace we were fighting the change. We are doing so because that is not the case in every circumstance. This is about a worker’s right to support when something goes wrong in the workplace. It is about a worker’s right to call the union when something happens: when the worker is given an unfair employment choice or is worried about health and safety. National says that workers should not have access to their union without the approval of the person who may well be the problem. It is in those circumstances that the protection of the law is incredibly important and that is what is being removed in Part 1 of this bill. 
We know right now that unions are voluntary organisations and they do not want to get offside with bosses. They do not want to have a bad relationship with employers. They work with employers for their employees and their members and they do so responsibly. But where there is a situation where workers need to have that support National now says they have to get permission to have that support. A lot of people remember when workers had to go and stand off site on the footpath to meet with their union—the people who represented them—whereas for example a big company could bring in hordes of lawyers and no one would say it would need anyone’s permission to have the kind of support it wanted when it came to employment law. A worker who just wants the union organiser to come in give some advice and maybe solve a problem now has to get permission to do that. That is a very very dangerous move in terms of the rights of those workers and their ability to get the help they need in the workplace. It is unfair. It is not needed. At the Transport and Industrial Relations Committee no one could come up with a single instance of where access was a problem. The officials told us that there was no problem. 
Michael Woodhouse 
: Yes they could. 
MOANA MACKEY 
: That is not true I say to Mr Woodhouse. When we dug down into it there was no problem. When unions have had to come on site without telling the employer there was a very good reason for it—there was a very good reason for it. 
David Bennett 
: Be truthful. 
MOANA MACKEY 
: I am being truthful I say to Mr Bennett. That member should be very very careful because his conduct as the chairman of that select committee was appalling on this legislation—absolutely appalling. Let us talk about the young woman who wrote to us. 
CAROL BEAUMONT (Labour) 
: 
 I come back to the combined effect of the provisions in Part 1 which is where all the substantive changes are. I believe that the consequences of this legislation—the changes that are being made to the Employment Relations Act—will mean that we will have multiple labour markets in which rights will be dependent on certain things. Highly skilled workers probably will not have the 90-day provision imposed. One will not tell a heart surgeon moving into one’s area that they will have to have a 90-day trial period. It just will not happen to those people. But for the many low-skilled or so-called unskilled people in the labour market it will be a “take it or leave it” scenario. It will be automatic. It will be in employment agreements. That will just be the reality and that will be the difference between those two labour markets. 
There will be a difference between unionised workplaces and non-unionised workplaces. As we heard clearly through the submission process the reality is that these 90-day provisions will not generally apply in unionised workplaces. The reality is that some of the employers who submitted on this bill are probably not that happy about it but it will not apply in those certain circumstances. We will see very different labour markets between those people who have work experience and those who do not have experience or recent experience. 
People coming back into work or who frequently move in and out of work—perhaps women who have primary childcare responsibilities and who come in and out of the workplace—will potentially have 90 days of no rights on multiple occasions in their working lives. Other people may have that only a few times or once even. There will be big differences between the experiences of men and women due to the provisions of this legislation. For example the Women’s Studies Association went into some detail about why it believes that the provisions of this bill will disproportionally affect women. It noted that women are more likely to have broken employment patterns and to change jobs more often. The association also noted that it is nonsense to argue that a young female worker desperate for a job has equal bargaining power with an employer in any business. It talked about the fact that preventing women workers access to their union by restricting the access of unions to worksites will restrict the right of women union members to secure advice and support. Many women are more likely to be working in the types of industries that are not yet unionised so this will undermine their ability to improve their wages and conditions of employment if the access provisions are abused. The association also went on to talk about the fact that women will probably be less likely to bargain with their employers over the 90-day trial period in circumstances where there is a choice about whether there is a 90-day so-called trial period. Other submitters have also noted that the effects of this legislation will disproportionately affect some workers rather than others. 
The Human Rights Commission took on the issue of what it called “constrained consent”. On the other side of the House members seem to think that a “take it or leave it” job offer is a choice. Well the reality is that that is nonsense and the Human Rights Commission said that the idea that the proposed legislation rests on contract and agreement and cannot be imposed on employees who do not agree to a trial period is “unrealistic particularly at a time of high unemployment and job scarcity”. The commission also went on to talk about the impact on women and on migrant workers. It looked at the Department of Labour evaluation of the 90-day period and said that even though most employers knew a trial period must be mutually agreed they generally did not seek employees’ acceptance of a trial period. Rather it was stated in the employment agreement along with other terms and conditions. Thus in practice the job offer was conditional on the employee accepting the trial period. 
The Human Rights Commission also noted the impact on employees of losing their job without reason and without recourse during that first 90 days. It could be for completely unfair reasons as that will be allowable. Who will ever know? The reality is that those people will then experience prejudice in seeking subsequent work. The Human Rights Commission made that point very strongly. I think that we will have multiple labour markets and that is of great concern to me. I think that fairness says there should be basic human rights that apply to all people in the labour market. 
MICHAEL WOODHOUSE (National) 
: 
 I want to talk about the costs of recruitment in the context of the 90-day probation period. At the select committee we heard a lot of Draconian stories of employers in sweat mines dragging along these poor people for 89 days and on the 90th day flicking them out the door because that is what employers do. The reality is somewhat different. Even if one accepts that employers are financially motivated— 
Lynne Pillay 
: Twenty-five percent of them do that. 
MICHAEL WOODHOUSE 
: Here we go! There is a “glass three-quarters empty” approach to the world. Lynne Pillay is essentially saying never mind that the other 75 percent who were given a go who might have marginalised or new immigrants got a permanent job out of it. Never mind the fact that the 25 percent who were let go might have gone of their own volition. The Department of Labour did not say in its report that they were sacked. All it said was that they were no longer employed at the end of 90 days. So it did not take into account that a lot of those short-term workers were people who decided that they did not want to work where they were and left of their own free will. No no according to Lynne Pillay 25 percent of them were sacked. 
I want to come back to the issue of money. The Labour Opposition talks about money-grubbing employers and if that is the case if employers are motivated by that single thing the dollar then they will weigh up very carefully the costs of hiring and firing. At the select committee we heard that even for basic jobs in retail the costs of hiring somebody can run into thousands and thousands of dollars. There is the cost of advertising the cost of screening the cost of the appointment and the cost of legal advice. There is the cost of getting an employment agreement in place. There is the cost of uniforms training health and safety training and induction and there is the loss of productivity while someone is buddied with the new employee. During that 90-day period a substantial investment in the employee has been made. Yet we are being asked to accept that these callous employers will on day 89 or day 90 say: “Tau you’re out the door—down the road. There is no excuse and it doesn’t matter that we’ve invested not only several thousand dollars but several tens of thousands of dollars.” 
Darien Fenton 
: No one said that. 
MICHAEL WOODHOUSE 
: That is exactly what is being implied. The member opposite said that no one said that but actually they did. They came to the select committee in Auckland and said that callous employers will use employees and abuse them and then dump them. 
Darien Fenton 
: Who said it? 
MICHAEL WOODHOUSE 
: Members of the Service and Food Workers Union who lined up one at a time with the reverend on the end—I cannot remember what his name was—actually went through that process. We heard that it would be terrible. Before that particular submission we heard from McDonald’s Restaurants of New Zealand. McDonald’s said— 
Sue Moroney 
: Scrupulous record! 
MICHAEL WOODHOUSE 
: If the member uses her ears and not her mouth she might learn something. She was not at the select committee hearing. We heard that those terrible employers actually have— 
Sue Moroney 
: Not from that member I won’t. 
MICHAEL WOODHOUSE 
: Maybe she will learn something maybe she will not but if she is quiet just for once she might learn something. McDonald’s has a performance measure for its managers—it is probably related to bonuses—on the retention rate of their employees at 3 months and they are not the only organisation that has that. It is considered a failure if an employee whom they have screened and employed is not working at the end of the 3-month period. So much for callous employers using abusing and turfing out their staff! They are simply not doing that. 
Moana Mackey 
: Does every employer have that? 
MICHAEL WOODHOUSE 
: No but here we go again—here is the inconsistency. Because every employer does not have it then we must wrap them all up in bureaucratic processes but we do not worry so much about the occasional errant employees. According to Labour we have rules for employers but not for the poor old employees. It is completely inconsistent because it is the employer who is investing sometimes not just thousands but several tens of thousands of dollars in an employee. Nobody in their right mind even if they are a bad employer motivated by money will then flick off that employee. It simply does not occur. 
KEITH LOCKE (Green) 
: 
 The assumption behind Michael Woodhouse’s speech on Part 1 of the Employment Relations Amendment Bill (No 2) is that the overwhelming majority of employers are good employers. They have the interests of employees at heart they will spend a lot money hiring and training them they will be very reluctant to let them go and all the rest of it. It is true that good employers think in those terms and they also think in terms of having good relations with the workforce and with the collective organisations of the workforce—that is the unions. But there are also a lot of employers who do not want anyone to be pushing for better conditions to be a member of a union or for a union to be active on the job. They think that they can make more money if that is the case. Sometimes that is not a rational calculation and sometimes it is just that they want to be the big boss but that does exist. 
The very fact that we have such a low rate of unionisation in New Zealand particularly in the private sector—and it is much lower than it was during the period of national awards before we had the Employment Contracts Act—is in part testimony to the fact that a lot of employers would rather not have the union on the job. Of course we have Peter Jackson and Richard Taylor who are prime examples of this. They are doing everything possible to keep an organised union force off their production of  
The Hobbit 
 and the other productions they have and they have been reasonably successful to date in doing that. That attitude is not unusual amongst employers. If that was not the case then I ask why we have this provision on union access to workplaces. We have the situation where union access has worked pretty well so far. The unions have walked on and off jobs all over the place. They talk to their members without any great problems. Of course any good union official is very sensitive to the fact that he or she should not disrupt the work process more than is necessary. There is often somewhat of a disruption of the work process by the very fact that union officials have to talk to workers who are on the job for 8 hours a day or whatever it is but that is minimised. 
Now we are putting in procedures that will seriously disadvantage unions in getting that access in that they can be delayed for up to a couple of days. The procedure that many union officials work on is to go to perhaps eight worksites a day and have a bit of flexibility as to when they arrive at the next worksite because they do not know exactly what the issues will be at the worksite they visited at say 10 o’clock. It might take them half an hour or 2 hours to work through the problems at that particular worksite. They have to have that flexibility and they operate in a situation of reasonableness and through notification of the employer in terms of access to worksites. But all of that will be thrown up in the air by putting all the power back on to employers and by allowing them to delay union officials for a couple of days. That provision will disadvantage the unions. 
Other provisions like the removal of reinstatement as a primary remedy in personal grievances will push things back against the unions too. A lot of employers want to get rid of particularly the more stroppy active union officials so what will they do? They will say that they will sack that union official. It will perhaps cost them a bit of money at the Employment Court but with reinstatement not being a primary remedy any more they will have got rid of that union official. They would value that result more than the $5000 or $10000 they might have to pay in compensation. That is biasing everything against the unions too. 
With regard to the 90-day provision I think Michael Woodhouse said that job applicants would have to agree to the 90-day provision in the employment agreement. But unemployed workers—and the unemployment rate is running at about 7 percent—can find it hard to get a job and they will not say: “I will take this job that you have kindly offered me but you need to cut out the clause that says there is a 90-day trial period.” If they do that an employer will thank them very much and say that he or she has not quite decided who to hire and will come back to the worker on that one but the employer will never come back. The 90-day trial is not really a voluntary arrangement and if that worker shows a bit of a disposition towards the union and perhaps even joins the union come the 75th day 85th day or 89th day the employer will just get rid of that worker. 
Hon TAU HENARE (National) 
: 
 I move  
That the question be now put 
. 
LYNNE PILLAY (Labour) 
: 
 Although I am critical of the bill I will raise something that I believe was overlooked at the Transport and Industrial Relations Committee. I am particularly pleased to see that the Attorney-General is the Minister in the chair because he is a details person—like me—and I am sure that once this matter is pointed out he will agree. If the Minister and the Committee could look at new section 20A which is to be inserted in the Employment Relations Act by clause 6 they will see the words “the employer or the representative of the employer must advise … the union of the employer’s … decision as soon as is reasonably practicable but no later than …” and the following words were changed at the select committee from “2 working days” to “the working day”. The section now refers to “the working day”. 
Hon Christopher Finlayson 
: Clause what? 
LYNNE PILLAY 
: New section 20A(2)(b) in clause 6. The Minister will see that the words “the working day” are underlined. Then section 20A(2)(c) refers to “within 2 working days”. The phrase has not been changed there to “the working day”. 
Hon Tau Henare 
: Is this the calibre of the union movement? 
LYNNE PILLAY 
: If the member would just be quiet for a minute I will point out to the Minister in the chair that under section 20A(3) the provision requiring 2 working days has been amended to “no later than the working day”. I feel very confident in saying in light of section 20A(2)(b) and (3) which refer to the day after that either there is an error or it just has not been amended. I can see that the Minister has already picked up on that. He is nodding wisely. If we can have that fixed that would be good. I thank the Minister for that. 
While I am on this clause I also request that very serious consideration be given to the other very very good amendments relating to union access that have been put forward by Trevor Mallard. They particularly refer to some reasons where access would not be able to be declined or where prior consent does not have to be gained. One amendment would add the words “unless the access is required for urgent health and safety matters”. That is really important if otherwise a whole day is spent waiting. If it is an urgent health and safety matter such as an unsafe machine and the union is called in it is very important for consideration to be given in those circumstances. 
Another amendment would add the words “unless the access is required for matters relating to harassment or discrimination of any employee”. If we look at the worst-case scenario where perhaps a woman worker is being sexually harassed she will want to call the union organiser in to discuss that matter. It is absolutely untenable we suggest that that worker will have to wait for the next day. If it is about harm to employees or where the health and safety of employees is paramount we say that it is very important that in those instances prior consent for access is not required. 
Another amendment would add the words “unless the access is required for matters relating to redundancies or potential dismissals or where the union representative is seeking to represent a worker in an employment dispute.” I can put my hand on my heart and say in many cases if the union comes in the matter can be resolved without that worker losing his or her job and without the situation escalating rather than bubbling bubbling bubbling over 24 hours into a seriously dysfunctional one. 
So I request that the Minister although he has accepted one amendment look really carefully at these amendments. I think they are very very good amendments. Certainly we would rather the bill did not come into effect at all. 
Hon MARYAN STREET (Labour) 
: 
 I am pleased to speak in the Committee stage of the Employment Relations Amendment Bill (No 2). Albeit I am addressing myself to clauses in Part 1 I will go back to some basic points on industrial relations. 
At the end of 2008 this country voted for a change of Government. People voted for a change of Government on the basis that some of the best things that the previous Labour Government did in this country in our 9 years in office would be retained by the incoming National Government according to the party’s promises on the hustings. In this legislation and in every move on industrial law that National has made since it came into office we have a concerted attack a concerted chipping away at the rights of the worker. Even more than that it has been undermining the way of organising and running a society. 
I will take a moment to move back from some of the specifics of Part 1 to talk about some of the principles behind an approach to industrial relations. The previous Labour Government was intent on developing promoting and sustaining a tripartite approach to industrial relations—and not just industrial relations but promoting and underpinning an inclusive approach to all of the significant social questions and economic questions before the country. We engaged with Business New Zealand we engaged with small businesses and in fact we set up the Small Business Advisory Group. We engaged with the Council of Trade Unions and those unions that are not affiliated with the Council of Trade Unions but predominantly with the Council of Trade Unions as the peak body representing the largest number of workers in this country. We began to build and develop a very stable and very sound structure and basis for an inclusive society. 
That is the kind of industrial relations that I aspire to and that I practised in my time as an industrial relations practitioner both as a union official and as an employer representative—an employment relations manager. 
That kind of approach to industrial relations is the only kind of approach that will provide stability and stability is important for workers. Stability is important because workers need the security of a job. They need to know that their job is secure and they need to know that the conditions they are working under on which they budget from week to week will remain the same or improve. The conditions should not be diminished or cut away so that suddenly people find themselves with less money every fortnight to pay the mortgage than they had before rather than more money as we would all like the situation to be. Stability is important for employers. Employers need to know they have a stable regime and a stable regulatory structure around them in order to plan their operations. 
This debate is not about being anti-employer; I think Mr Woodhouse was keen to paint Labour that way earlier in the debate. It is certainly about being pro-worker. But more than anything it is about wanting in New Zealand an industrial relations framework that provides the greatest stability for the greatest number and for the greatest good. This legislation does not do that. This legislation diminishes chips away and erodes workers’ conditions and workers’ rights in a way that we have not seen since the 1990s. We hoped we had put the years of the 1990s behind us. It is due to the short-sightedness malevolence or perhaps ignorance of the Minister of Labour that there is no understanding of the impact of this steady erosion of workers’ rights. Perhaps it is simply an ideological difference that is to be pursued at all costs which prevents this Minister from seeing the big picture around industrial relations. 
This kind of legislative change is not needed in order for industrial relations to proceed smoothly cooperatively and in a negotiated way to the benefit of all players. I would like the National Party to identify where the drivers for these moves are coming from. Where are these drivers coming from? Business New Zealand has said that it does not need a number of measures in this legislation; it is OK without them. Business New Zealand has said that it is OK without the requirement of medical notes or some kind of note from mother for absences. It is OK with that. It has good systems going and it does not need this kind of intervention. Business New Zealand has said that the extension of the 90-day trial period to all workplaces in New Zealand is not necessary in its industries because it has a reasonably good arrangement with its unions. It does not have a problem with giving unions access to workers because it has a good cooperative relationship. It is not always smooth but it has a fundamentally respectful relationship with the unions that represent its workers. It has no problem with giving unions that access. 
So where have these drivers come from? This is an ideological bombardment from the National Party which is reverting to type. But I suggest that even some of its most strident supporters do not require some of this legislation. I ask National to look again at what it is doing with this erosion of workers’ rights. It is destabilising industrial relations. It will only cause a swing back when Labour comes back into Government. When we do that— 
Hon Tau Henare 
: That ain’t going to happen in a hurry. 
Hon MARYAN STREET 
: —next year I say to Mr Henare—the employers will not be grateful to National for having this flip-flop situation which was characteristic of the 1970s the 1980s and the 1990s. We were growing out of that kind of childishness and I wish National would grow out of it also. 
Our vision on this side of the Chamber is for a much more stable a much more cooperative and a much more respectful balance in industrial relations than this legislation provides. This legislation provokes unrest it provokes industrial action it provokes stoppages it provokes downtime it provokes a loss of income and it provokes a diminishing of margins for employers. The National Government has only itself to blame if it thinks that some of the people it takes to be National supporters will thank the Government for this. 
This is no way to run a country. This is no way to run the most important powerhouse of this country. In this legislation the Government is simply saying that cooperative grown-up respectful relationships between employers and unions and between industry and peak bodies like the Council of Trade Unions are not required are not necessary and are out of date. National will rue that day. 
This bill will provoke unrest. It has already been seen to provoke unrest and that is no way to run a country. If this Government had half a plan about the economic future of this country this legislation would not be before us now because it simply takes us backwards. It does not advance anybody. It certainly does not advance workers. It diminishes workers’ rights and improves nobody. 
MICHAEL WOODHOUSE (National) 
: 
 I would like to address the issue that was raised by the member Lynne Pillay in her last call in respect of clause 6 which inserts new section 20A of the Employment Relations Bill (No 2). Before I go to the details of this I say there is a bit of a preamble to it. The bill as it was introduced prescribed what could have been a maximum time frame of up to 4 working days for a union to be given a reason for access to be denied. In the consideration of the bill I believe it was the member Carol Beaumont who raised a concern about that being unduly prolonged. I supported that call. The officials to their credit realised that the initial policy intent was for that not to be the case but somewhere in the translation from policy to the bill the duration was doubled. They were very happy to recommend amendments that reduced the time frame for the whole thing to be wrapped up to within 2 working days. 
If we then step through the legislation as it stands bearing in mind that the goal is for any decision and the reasons to be communicated within 2 working days or deemed acceptance in that time we see that the obligation is on the employer to provide a response the working day after. If I as a union representative asked for access in writing on the Monday the obligation is on the employer to have responded by the end of the working day following—that is the end of Tuesday. If the employer does not do that then by the Wednesday access is deemed to have been granted. In terms of clause 6 it is necessary to keep section 20A(2)(c) referring to within 2 working days. In that scenario the Wednesday is within 2 working days and works mathematically. If permission is specifically denied the working day following then the obligation falls on the employer under 20A(3) “as soon as is reasonably practicable but no later than the working date after the date of the decision” to provide a reason why. That would also have been the Wednesday. 
So in that scenario everything is wrapped up on the Wednesday but the clause that the member thought may have been out of whack with the rest of the legislation is quite consistent with the intention that the select committee wanted to recommend back to the House. I suggest that no change to the bill is necessary. 
DARIEN FENTON (Labour) 
: 
 I want to add one important point to my very good colleague Maryan Street’s contribution to the Employment Relations Bill (No 2) which I thought was very powerful. I hope that the National Party was listening. The other fundamental thing about Part 1 of this bill that has not been referred to this morning is that we have talked about fairness but with the 90-day trial period we are denying access to justice. With this bill we are saying that people will lose their economic livelihoods without being told a reason why or being able to challenge that reason. That is a pretty fundamental thing in New Zealand. It is a fundamental legal understanding in New Zealand that if one is treated unfairly or something happens to one in other walks of life one has the right to challenge it and access justice. I think that is one of the very strong oppositions that we have. 
I want to give an example that came out this week. I know there has been a bit of discussion about the sauce-and-aioli guy but an example came out earlier this week of a farm worker. He took on a job milking cows moved to a farm cottage and took his wife and two children with him. He signed an employment agreement that had a 90-day trial provision in it. He thought at the time that there was not much to worry about. He noticed it and he signed the agreement but he thought it would not apply to him. He took his children and his wife to live on this farm. The children settled in at the local school. They really loved it and thought it was fantastic. They were having a wonderful new life on the farm. 
A couple of months into his employment he had a disagreement with his employer the farmer. It was over the way the employer the farmer was talking to one of the farmhands who was a migrant worker. He was very nasty to this guy so the worker decided to stick up for this guy which is what we expect people to do. If people are being bullied it is a natural instinct to stick up for a workmate a friend or a neighbour and that is what he did. He asked the employer: “Please do not talk to this guy like that.” The next morning the farmer came round the milking shed and said: “I’m sorry but I’ll have to let you go.” The worker asked for a reason and the employer said he did not have to tell him because he is employed under the 90-day trial period. 
The worker had done nothing wrong except stick up for his workmate—he had done nothing wrong. There was nothing he could do about it because he had signed the employment contract. Let us be clear about this: if employers get the paperwork right there will be people who get fired like this. It did not apply to the sauce-and-aioli guy because the employer got the paperwork wrong but employers will get it right and employees will be fired. I have heard from many many workers in that situation. 
This poor guy had to pack up his family leave his farm cottage where he was living and tell his children that they would no longer be going to the local school and that they were leaving. He felt a real sense of shame for leaving a community where he was just starting to build relations in. He had to try and explain to his children why they had to leave. 
Carol Beaumont 
: Very disruptive for them. 
DARIEN FENTON 
: It disrupted their lives their education and this guy’s economic livelihood. The upshot of the story is that he has gone to Australia. I know that members opposite will say that there are longer trial periods in Australia but fundamentally for him it was an issue of fairness of the impact on his children of the impact on his livelihood and of the impact on his career as a sharemilker in the future. There was an overwhelming sense of frustration and anger that we live in a country now where workplaces of fewer than 20 workers can be treated like that and we will be living in a country where every worker in the whole country can be treated in the same way. Yes apparently it will not happen; we know that. But the fact is that there are employers out there—and we heard it in the Transport and Industrial Relations Committee—who want this extension not only in all workplaces but also for it to be the default provision. They want more; they always want more. 
Sue Moroney 
: I think Kate Wilkinson does too. 
DARIEN FENTON 
: I think Kate Wilkinson does too. In fact I heard from another group of workers where four of them were working for the same firm in Napier who have been fired under the 90-day trial provisions. 
Dr JACKIE BLUE (National) 
: 
 I move  
That the question be now put 
. 
CAROL BEAUMONT (Labour) 
: 
 In this debate in the Committee stage of the Employment Relations Amendment Bill (No 2) I want to pick up a point about the 90-day trial period and the very significant point made by my colleague Darien Fenton in relaying that example. The comment was made about Australia. Earlier Dr Jackie Blue asserted of course that the 90-day provision is very reasonable that everywhere around the world there are these no-rights provisions and in fact the provision here is even quite moderate in being only 90 days. I have to say there were a number of submitters who quite clearly tried to get us to recognise that we need to compare apples with apples. Caritas which I mentioned earlier in another regard said: “Look we are not specialists in employment law but we thought given that the Government had asserted so strongly that the justification for the 90-day provision was that it applied everywhere else that we should check it out.” It made contact with the equivalent of Caritas in Australia and it was particularly interested in looking at the situation of small employers. It checked with the Australian Catholic Church’s Office for Employment Relations and it was told that matters of natural justice and procedural fairness during probationary periods in Australia are covered by Australia’s fair work and adverse action provisions. A complaint under the adverse action provisions can be taken by any worker—including job applicants so the provisions are quite broad—who feels that he or she has been unfairly treated. Then a range of actions flow from that. Caritas was then referred to the Australian Government website to check that out a little more. 
Once Caritas followed that through it looked at the advice provided to employers and employees about the legal obligations around the termination of employment. It found that there is a provision applying to small businesses the Small Business Fair Dismissal Code which provides a whole lot of things and would stop the absolutely patently unfair examples like the one that my colleague Darien Fenton just gave—a real life story involving somebody sacked not for their own action but for sticking up for somebody else. I reckon most New Zealanders would find that absolutely disgraceful but they need to know that that is entirely possible under this legislation. 
I will also talk a little bit about union access to workplaces. Some cute statements have been made across the Chamber about our position on union access to workplaces. The difference that this law will put in place is that it will give an employer the right to say no to access. We were given example after example in the select committee of how the current access provisions which do not give the employer the right to just say yes or no but have a number of reasonableness provisions are working effectively where there are relationships. People described for us the fact that the union official will generally make contact with the manager to discuss what a reasonable time for access might be and whether access should be provided in particular places or to some groups of workers at some times and others at other times. That is genuine and that is what happens at the moment. I know that from my own experience and from the experience of other officials. There is not a problem. That was made absolutely clear by officials and it was made clear by Business New Zealand. 
This new access provision is purely an ideological thing but the worry is its effect. It may not be widely used but it will be used by employers who do not want to see workers accessing information workers accessing expert advice and workers wanting to organise themselves to get a better deal. This is the last thing we should be doing if we are serious about closing the wage gap between Australia and New Zealand. The real way to close the wage gap is obviously to lift wages in this country. How do we go about that? We do not go about it individual by individual by individual. That is not the way to lift wages. The way to lift wages is to lift the wages of groups of workers through collective employment agreements. How do we do that? We do that by workers joining together in unions by organising and then by seeking to negotiate a collective employment agreement. If bad employers have the right to stop unions accessing workplaces that will not happen. 
Hon TREVOR MALLARD (Labour—Hutt South) 
: 
 At this stage I want to draw the Committee’s attention to the set of amendments in my name that the Committee will work through because we have not had very much reaction from the Government in respect of them. I turn in particular to those to do with union access and the suggestions that have been made there. One of them makes it clear that access cannot be denied if it is required for the conducting of a secret ballot. We have had some legislation that is working its way through the House in the name of Tau Henare—unnecessary legislation it is fair to say—which has a possibility of being passed that requires a secret ballot. The member knows that for the secret ballots that he is now requiring to be held—which are mainly held anyway—there is a need for union access in order to conduct those ballots. What we want to be careful of are employers who unreasonably deny access in order to avoid the ballot in order to avoid a strike. I think what would probably happen in most workplaces would be that employees would walk off the job and have their ballot off the job if that occurred. I think what we need to make clear in the legislation is that people should act reasonably and work their way forward. 
There is another amendment that goes to the question that was raised by my colleague Lynne Pillay. It is our suggestion that the reason for denying access must be given on the same day as access is denied. I do not think that is an unreasonable approach. If someone is saying “No you can’t come in.” then asking why at the same time is not unreasonable. Most employers are bright enough: if it is a genuine reason and if they genuinely hold a particular view as to why now is inappropriate for unions to come in or even later in the day then I think it behoves them to indicate the reason for that to the union officials concerned. 
There are a series of other amendments here. One of them is around communication during collective bargaining. The suggestion here is that we effectively take out clause 9. One of the problems with the approach that this Government has taken under the very poor drafting leadership of the Attorney-General is the massive use of parts. In this case there is one substantive part in what is effectively a consequential part or a very small part. What would previously happen is that individual issues would be identified and one could vote against clauses. A bill as short as this would have under quality drafting with someone with some integrity leading the drafting process been drafted such that it was taken clause by clause because although it is a bill of massive importance it is not a bill of massive size or massive numbers of clauses so it should have been taken clause by clause. 
That would have been an opportunity for members to vote No just on clause 9. So the objective here is to take that clause out of the bill and in that way maintain the status quo around collective bargaining. The change proposed in the bill appears to be driven by a misunderstanding of the current legal positions. Again with the quality of legal drafting that we have from the Attorney-General with his very poor leadership I am not surprised that there is a misunderstanding in this area. 
Some other amendments go to the non-denial of access on harassment or discrimination matters and there could be a matter where a union official needs to get into a workplace immediately because there is a current case of discrimination or harassment. Just looking around I see a couple of members opposite who have done constituency work in their time. Most people who have done constituency work know that every now and again one gets a case where one has some absolutely outrageous harassment of individuals. To be fair it is generally in the case of small employers and I want to say that it is too often the case that new New Zealanders are involved either as the people being harassed or the people who are doing the harassing. 
But some things that occur within workplaces are just absolutely unacceptable in our society. Some of these reach court but a lot do not because quite often in sexual harassment cases the woman—and it is just about always a woman—who is harassed takes a decision that she does not want to put herself through what is effectively a second trial. The matters often do not go to the police. But the immediate solution the way of protecting the woman concerned is very often through the intervention of a union official who comes in and supports and helps to isolate and get some barriers up and makes it clear to the employer that harassment cannot continue. I ask why a woman who is being harassed often sexually harassed by an employer should have to wait until the day after tomorrow. If the employer does not agree it could be 2 days before he gives a reason for not agreeing for someone to come in. 
In modern society that situation is unacceptable. However it is consistent with the lack of rights of and respect for individuals that come from this Government. I think it is fair to say that Jim Bolger was not the best Minister of Labour but he believed in the dignity of work and the rights of workers and in human rights generally. Now there is really no one in the Government who protects human rights. The New Zealand Bill of Rights Act more or less might as well be gone given the approach that is taken. There is not a Minister who is prepared to within Cabinet or within Parliament stand up for the New Zealand Bill of Rights Act and for the rights of individual Kiwis. We have come to this and it is so sad: the Attorney-General is the Minister in the chair as we legislate away the rights of someone who is being sexually abused and sexually harassed to call in a union official. The Attorney-General of New Zealand who is meant to stand up for those rights is sitting here absolutely numb in his mouth. It is an improvement on his general condition but he is sitting there. 
I say to the ACT Party that it is about time it took a call on this matter too. That party has generally stood up for individual rights in New Zealand—the individual right to make a phone call and ask someone to visit. What do we have here? We have the ACT Party sitting. There is not a mumble not a murmur not a word from the ACT Party about the individual rights of a worker to call on their representative. We do not agree on lots of things to do with industrial legislation but I thought one of the things ACT would have the backbone to stand up for was the right of an individual to make a phone call and to have a meeting. What do we have? Not a word from ACT. It is sitting there a supplicant to the National Party. 
DAVID BENNETT (National—Hamilton East) 
: 
 I move  
That the question be now put 
. 
A party vote was called for on the question  
That the question be now put. 
Ayes 64 
New Zealand National 58; ACT New Zealand 5; United Future 1. 
Noes 56 
New Zealand Labour 41; Green Party 9; Maori Party 5; Progressive 1. 
Motion agreed to. 
The question was put that the following amendment in the name of the Hon Trevor Mallard to clause 6 be agreed to: 
to add to new section 20A(1) “unless the access is required for urgent health and safety matters”. 
A party vote was called for on the question  
That the amendment be agreed to. 
Ayes 56 
New Zealand Labour 41; Green Party 9; Maori Party 5; Progressive 1. 
Noes 64 
New Zealand National 58; ACT New Zealand 5; United Future 1. 
Amendment not agreed to. 
The question was put that the following amendment in the name of the Hon Trevor Mallard to clause 6 be agreed to: 
to add to new section 20A(1) “unless the access is required for matters relating to harassment or discrimination of any employee”. 
A party vote was called for on the question  
That the amendment be agreed to. 
Ayes 56 
New Zealand Labour 41; Green Party 9; Maori Party 5; Progressive 1. 
Noes 64 
New Zealand National 58; ACT New Zealand 5; United Future 1. 
Amendment not agreed to. 
The question was put that the following amendment in the name of the Hon Trevor Mallard to clause 6 be agreed to: 
to add to new section 20A(1) “unless the access is required for matters relating to redundancies or potential dismissals or where the union representative is seeking to represent a worker in an employment dispute”. 
A party vote was called for on the question  
That the amendment be agreed to. 
Ayes 56 
New Zealand Labour 41; Green Party 9; Maori Party 5; Progressive 1. 
Noes 64 
New Zealand National 58; ACT New Zealand 5; United Future 1. 
Amendment not agreed to. 
The question was put that the following amendment in the name of the Hon Trevor Mallard to clause 6 be agreed to: 
to add to new section 20A(1) “unless the access is required for the conducting of a secret ballot”. 
A party vote was called for on the question  
That the amendment be agreed to. 
Ayes 56 
New Zealand Labour 41; Green Party 9; Maori Party 5; Progressive 1. 
Noes 64 
New Zealand National 58; ACT New Zealand 5; United Future 1. 
Amendment not agreed to. 
The question was put that the following amendment in the name of the Hon Trevor Mallard to clause 6 be agreed to: 
to omit from new section 20A(3) “ as soon as is reasonably practicable but no later than the working day after the date of the decision” and substitute “on the same day as the decision is given”. 
A party vote was called for on the question  
That the amendment be agreed to. 
Ayes 56 
New Zealand Labour 41; Green Party 9; Maori Party 5; Progressive 1. 
Noes 64 
New Zealand National 58; ACT New Zealand 5; United Future 1. 
Amendment not agreed to. 
The question was put that the following amendment in the name of the Hon Trevor Mallard to clause 9 be agreed to: 
to omit this clause. 
A party vote was called for on the question  
That the amendment be agreed to. 
Ayes 56 
New Zealand Labour 41; Green Party 9; Maori Party 5; Progressive 1. 
Noes 64 
New Zealand National 58; ACT New Zealand 5; United Future 1. 
Amendment not agreed to. 
The question was put that the following amendment in the name of the Hon Trevor Mallard to Part 1 be agreed to: 
to insert the following clause after clause 12: 
12AEffect of trial provision under section 67A 
Section 67B(5)(a) is repealed. 
A party vote was called for on the question  
That the amendment be agreed to. 
Ayes 56 
New Zealand Labour 41; Green Party 9; Maori Party 5; Progressive 1. 
Noes 64 
New Zealand National 58; ACT New Zealand 5; United Future 1. 
Amendment not agreed to. 
The question was put that the following amendment in the name of the Hon Trevor Mallard to clause 6 be agreed to: 
to omit from new section 20A(2)(a) “unreasonably”. 
A party vote was called for on the question  
That the amendment be agreed to. 
Ayes 56 
New Zealand Labour 41; Green Party 9; Maori Party 5; Progressive 1. 
Noes 64 
New Zealand National 58; ACT New Zealand 5; United Future 1. 
Amendment not agreed to. 
The question was put that the following amendment in the name of the Hon Trevor Mallard to Part 1 be agreed to: 
to insert the following clause after clause 12: 
12BEffect of trial provision under 67A 
Section 67B(5)(b) is repealed. 
A party vote was called for on the question  
That the amendment be agreed to. 
Ayes 56 
New Zealand Labour 41; Green Party 9; Maori Party 5; Progressive 1. 
Noes 64 
New Zealand National 58; ACT New Zealand 5; United Future 1. 
Amendment not agreed to. 
The question was put that the following amendment in the name of the Hon Trevor Mallard to Part 1 be agreed to: 
to insert the following clause after clause 12: 
12CEffect of trial provision under 67A 
Section 67B(5) is repealed. 
A party vote was called for on the question  
That the amendment be agreed to. 
Ayes 56 
New Zealand Labour 41; Green Party 9; Maori Party 5; Progressive 1. 
Noes 64 
New Zealand National 58; ACT New Zealand 5; United Future 1. 
Amendment not agreed to. 
The question was put that the following amendment in the name of the Hon Trevor Mallard to Part 1 be agreed to: 
to insert the following clause after clause 12: 
12DWhen employment agreement may contain provision for trial period for 90 days or less 
Section 67A is amended by adding the following subsection— 
“(6)A trial provision may not be included in any advertisement for a job as a pre-requisite for employment in that job.” 
A party vote was called for on the question  
That the amendment be agreed to. 
Ayes 56 
New Zealand Labour 41; Green Party 9; Maori Party 5; Progressive 1. 
Noes 64 
New Zealand National 58; ACT New Zealand 5; United Future 1. 
Amendment not agreed to. 
The question was put that the following amendment in the name of the Hon Trevor Mallard to Part 1 be agreed to: 
to insert the following clause after clause 12: 
12EWhen employment agreement may contain provision for trial period for 90 days or less 
Section 67A(2)(c) is amended by adding “except where the employer has not acted in good faith”. 
A party vote was called for on the question  
That the amendment be agreed to. 
Ayes 56 
New Zealand Labour 41; Green Party 9; Maori Party 5; Progressive 1. 
Noes 64 
New Zealand National 58; ACT New Zealand 5; United Future 1. 
Amendment not agreed to. 
The question was put that the following amendment in the name of the Hon Trevor Mallard to Part 1 be agreed to: 
to insert the following clause after clause 12: 
12FEffect of trial provision under section 67A 
Section 67B(2) is repealed. 
A party vote was called for on the question  
That the amendment be agreed to. 
Ayes 56 
New Zealand Labour 41; Green Party 9; Maori Party 5; Progressive 1. 
Noes 64 
New Zealand National 58; ACT New Zealand 5; United Future 1. 
Amendment not agreed to. 
The question was put that the following amendment in the name of the Hon Trevor Mallard to Part 1 be agreed to: 
to insert the following clause after clause 12: 
12GEffect of trial provision under section 67A 
Section 67B(5) is repealed and the following subsection substituted: 
“(5)If the reason for dismissal provided by the employer is alleged to be frivolous untrue or unfair the employee retains the right to take a personal grievance or legal proceedings in relation to that dismissal.” 
A party vote was called for on the question  
That the amendment be agreed to. 
Ayes 56 
New Zealand Labour 41; Green Party 9; Maori Party 5; Progressive 1. 
Noes 64 
New Zealand National 58; ACT New Zealand 5; United Future 1. 
Amendment not agreed to. 
The question was put that the following amendment in the name of the Hon Trevor Mallard to clause 15 be agreed to: 
to add to section 125 the following new subsection: 
“(3)If this section applies and the employee concerned is also a union delegate health and safety representative or member of a party actively involved in bargaining the Authority must whether or not it provides for any of the other remedies provided for in section 123 provide wherever practicable for reinstatement as described in section 123(a).” 
A party vote was called for on the question  
That the amendment be agreed to. 
Ayes 56 
New Zealand Labour 41; Green Party 9; Maori Party 5; Progressive 1. 
Noes 64 
New Zealand National 58; ACT New Zealand 5; United Future 1. 
Amendment not agreed to. 
The question was put that the following amendment in the name of the Hon Kate Wilkinson to clause 9A be agreed to: 
to omit from subclause (2) “63(2)(b)” and substitute “63A(2)(b)”. 
A party vote was called for on the question  
That the amendment be agreed to. 
Ayes 64 
New Zealand National 58; ACT New Zealand 5; United Future 1. 
Noes 56 
New Zealand Labour 41; Green Party 9; Maori Party 5; Progressive 1. 
Amendment agreed to. 
A party vote was called for on the question  
That Part 1 as amended be agreed to 
Ayes 64 
New Zealand National 58; ACT New Zealand 5; United Future 1. 
Noes 56 
New Zealand Labour 41; Green Party 9; Maori Party 5; Progressive 1. 
Part 1 as amended agreed to. 
Part 2 Consequential amendments and transitional provision 
The CHAIRPERSON (Lindsay Tisch) 
: The debate on this part includes schedule 2. 
Hon TREVOR MALLARD (Labour—Hutt South) 
: 
 I think members will agree that Part 2 is not quite as substantive as Part 1 which we have just debated. I ask my colleagues especially those who are more involved in the law—in particular industrial law— to have a good look at Part 2. I specifically ask them to look at schedule 2 “Consequential amendments to other enactments”. 
The question I ask members opposite and through the Minister in the chair the Hon Chris Finlayson to the officials is whether we can be absolutely sure that the right reference is cited in section 83(2)(a) in schedule 2. There is a reference there to section 223D of the Employment Relations Act. I just inform the Minister that there is no section 223D in the Employment Relations Act. I am using the statute from the lobby; the 1 April 2009 edition. It may be that changes have been made since that time. But I note there is a section 224 in that Act and that the reference to a demand notice appears to be correct. There is always a question in these things about whether one is working from the correct copy of the legislation. In the case of the next reference it appears that section 83(2)(b) refers accurately to section 224. But in the case of section 83(2)(a) the reference there is not accurate. 
It might be that the reference should be to section 223(1)(c). That is a provision that ties the Employment Relations Act to the Holidays Act and deals with the powers of labour inspectors in that particular area. It is not even section 223(1)(d) because that relates to the Minimum Wage Act but it is a matter that is meant to relate to holiday pay. That of course must refer to the Holidays Act and the proper references within this area. I say to the Hon John Carter my old friend and colleague who is now in the chair that occasionally there is a lot of politics in these things and occasionally there appears to be a minor error in the drafting. But when we have a mis-reference when relating something to an Act it could well end up being an inaccurate reference. 
The Minister of course has a group of officials who are working with him and for him and if the Minister did indicate that the lobby copy of the legislation is out of date and I am wrong I would be happy to concede on this point. But if the lobby copy is accurate it may be that the Minister would want to scribble an amendment in order to change the reference to the Act to read “section 223(1)(c)” which I think is the accurate reference. I am getting a bit of a nod. I want to plead guilty because for at least half an hour I was a member of the Transport and Industrial Relations Committee during its deliberations on the bill and I missed this wrong reference on the way through. It does not happen very often and I will apologise to the Committee for making an error if it is— 
Michael Woodhouse 
: I could have saved you further embarrassment. 
Hon TREVOR MALLARD 
: I thank the member. If he wants to take a call to clarify this matter I am happy to come back after that. 
MICHAEL WOODHOUSE (National) 
: 
 In respect of the speech made by the previous speaker Mr Mallard I draw his attention to clause 36 in Part 1 of the Employment Relations Amendment Bill (No 2) which inserts new sections 223A to 223G. So in fact he is quite right: there is no section 223D in the Employment Relations Act as it currently is in the lobby because those new sections are being inserted by Part 1 of this bill. Therefore it is necessary to refer back to that section in schedule 2 and therefore there is no need for any change. I look forward to the call and the apology that he has offered. 
CAROL BEAUMONT (Labour) 
: 
 I want to follow on with clause 40 “Transitional provision” rather than clause 39 “Consequential amendments to other enactments”. The transitional provision clause is the reference to the individual employment agreement and the requirement under new section 10 that the employer must retain a copy of the individual employment agreement or individual terms and conditions of employment. Clause 40 clarifies the fact that that provision applies whether “individual terms and conditions of employment were provided to or agreed with the employee before or after the commencement of this Act.” 
The transitional provision and the reference to the individual employment agreement is very important because in this area also there will be the question of whether a 90-day no-rights provision will apply. It will include the “take it or leave it” employment agreements that we have talked about previously. With regard to the individual employment agreement that is being referred to here whether it be agreed before or after the commencement of this Act whether it has any reference and whether it was a genuine negotiation is of course irrelevant because “take it or leave it” provisions appear to be acceptable to this Government. 
We have heard members opposite arguing that that is a matter of choice. Those of us who know what people feel like when they are out of work and struggling to make ends meet know that “take it or leave it” employment offers particularly in periods of high unemployment are not at all a matter of choice. I think that we will find plenty of people in the Mana electorate in that particular situation: they do not have a job they would like a job and if they are offered a job with an individual employment agreement with a 90-day trial provision there will be no negotiation or choice associated with the matter. 
I think a number of other transitional arrangements really should be included in this part. We will be going from a situation where the 90-day no-rights provision applies to workplaces of fewer than 20 employees to a situation where they apply to all workplaces. The majority of New Zealand employees work in large workplaces; although the majority of workplaces are small workplaces the majority of employees are employed in large workplaces. These changes bring those workplaces into the scope of the legislation. 
I wonder whether some transitional arrangements are required around for example the ability of Work and Income to deal with these changes because the provision does not require an employer to provide any reason for a dismissal. Not only does the worker not have the right of redress but the worker does not actually have to be given a reason why they have been dismissed. Under our benefit system people can be stood down from their right to access a benefit if they have lost a job because it is their own fault. In a situation where they have no idea why they have lost their job Work and Income have to intervene. 
We sought advice from officials on this matter and we were provided with advice. In summary the advice is that if the employer does not respond to a request from Work and Income to give a reason then it will take whatever reason the employee gives them. But if when Work and Income contacts the employer they assert a reason even if they have not told the employee why they have been dismissed—they could make it up on the spot—that reason will be accepted by Work and Income and there is no right to challenge it. Potentially the provision could deny somebody access to a benefit. 
We are applying this provision to all workplaces so the extent to which Work and Income will be required to make those sorts of judgments and to deal with those very complicated situations will increase. I wonder whether there is a need to look at or change the transitional provisions. 
I wonder also whether any thought has been given to the change in culture in our workplaces. It is quite hard to have transitional arrangements about change in culture but the fact of the matter is that at the moment most employees are working in workplaces where they can challenge unjustified dismissal. 
DARIEN FENTON (Labour) 
: 
 I will continue if I may on the theme of the transitional provision in Part 2 of the Employment Relations Amendment Bill (No 2). My colleague Carol Beaumont made some very good points about the questions that are still there about the 90-day provision but I will be a little more positive for a moment about the reference in the transitional provision. 
Clause 40 “Transitional provision” refers back to new section 64 “Employer must retain copy of individual employment agreement or individual terms and conditions of employment”. That is one provision in this bill that Labour supports but we did not get to talk about it because we did not have enough time in the debate on Part 1. We support that provision. We support workers having the right to their individual employment agreements in writing; they are supposed to have those anyway. We think that is an improvement on the current situation. 
There is another reason why we think it is an improvement although I do not think it will help the hapless souls who are employed under the 90-day trial period provision—all of those in every workplace in New Zealand who change jobs in the future. When we go back to the Department of Labour research on the existing arrangements in workplaces of 20 or fewer employees it is very interesting to look at what was happening with individual employment agreements. One in four of the workers end up with no job. The 90-day trial period was supposed to create jobs for all of those people in particular the so-called vulnerable workers—migrant workers Maori workers and so on—but there was no evidence to show that it contributed to increasing their employment in any way shape or form. 
Not only that but when we looked at the other parts of the evidence in that survey we saw that some of the employers did not even put the conditions in writing. There is a pretty widespread practice out there of having individual agreements that are not in writing even though it is a current requirement of the law. It is a current requirement of the law. Even when employers put the agreement in writing of course the conditions were non-negotiable. It is one thing to have a written individual employment agreement and we support that; it is another thing to have a non-negotiable individual employment agreement. 
That is the problem all the way through this bill. The whole 90-day trial provision is not voluntary and it will not be subject to good faith. Good faith is meaningless in this situation. We have heard and relayed some of the stories about the impact of that provision. 
The same report said that employers generally did not seek employees’ acceptance of a trial period in an individual agreement; rather it was stated in the employment agreement with other terms and conditions. For most workers applying for a job the job is conditional on their accepting a trial period. So although we support this transitional provision and its reference back to new section 64 the Prime Minister’s statement and other Ministers who said that the 90-day trial period could be entered into only by agreement between the employer and the new worker at the beginning of the employment relationship have been shown by their own department’s research to be completely untrue and to be utter rubbish. 
I noticed also during the consideration by the Transport and Industrial Relations Committee that it made a change to new section 64 which the transitional provision refers to by inserting subsection 2A to make it clear that the employee may have access to a copy of the employment agreement retained by the employer. That is a good idea. I think that is a very good idea. Of course employees should have access to their individual employment agreement. But you see the reality is that in many workplaces they do not. That provision is good and will improve the situation. 
However many many employers who will take advantage of and exploit the 90-day trial provision will ignore it anyway. It is meaningless for them. We have heard from many workers that they are told that employers are using the 90-day trial period so they do not have to give them an agreement; they do not even have to agree to it. We can write these things down and they are improvements but I have to say that I have no confidence that they will make a huge difference. 
Just picking up the point of my colleague Carol Beaumont about transitional provisions and what could be considered I wonder how on earth we are going to get an education programme going and what resources the Minister and others are planning to put into this. This is a huge change. 
LYNNE PILLAY (Labour) 
: 
 I would like to comment particularly in relation to the transitional provisions of the Employment Relations Amendment Bill (No 2) on comments made by both Carol Beaumont and Darien Fenton. We are looking at individual employment agreements and how that provision will work. Although they must be in writing we know that the Employers and Manufacturers Association will be busy pumping out those individual employment agreements to employers as we saw in the 1990s. When redundancy had to be referred to those agreements said quite clearly that no redundancy compensation would be paid. 
We know that in terms of these individual agreements it will be very much as my colleagues have said a “take it or leave it” situation. That is what National members refer to as choice in this situation. National members say that of course there is a choice. We say that workers will have no choice as to whether they accept this Draconian provision that means they can get sacked within the first 90 days whether or not they are given a reason and whether or not there is a good reason. When we say that employees have no choice the Government’s response is to say that of course they have a choice: they can either take the job or leave the job. We say that that is not a real choice. 
Carol Beaumont touched on again a possibly unintended consequence but one that from a transitional point of view will create a real problem in the future. 
That would be along the lines of an employee getting a pumped out “take it or leave it” employment agreement handed to them courtesy of the Employers and Manufacturers Association for which the employer pays a fee. Employees know that they have no choice but to take the agreement and they sign up. Things might go really well. They will work and try to do the best possible job they can. Then they make the fatal mistake of putting too much sauce on the fish or whatever. They are called in and told that in the agreement that they have a copy of they will see quite clearly that they can be sacked for any reason and the reason they are being sacked is that—well they will not be told why; they are just let go. What a funny term “let go” is. It sounds as if one is being really kind and nice as if it is a nice thing to do. 
The poor employee is let go. John Key has talked about job creation so they are sure there will be a lot of jobs they can find out there. People search and search but of course there is nothing because this Government has not created any jobs. As previous speakers have said most workers are staying in their jobs because they are too fearful to leave and because if they go to a new job they will have these Draconian conditions imposed on them particularly after this bill goes through. 
Eventually people will have to make ends meet so they will have to do something they did not want to do which is go to Work and Income. Their case manager will ask why they are no longer employed. They will say they do not know but that their employer has let them go. The case manager will ask whether it was their fault and they will say that they do not know whether it was their fault because the employer did not tell them anything. They will be told that they have to wait. Those poor people will be waiting to see whether they are eligible for a benefit—a very small benefit but something to put a bit of food on the table while they are searching for those non-existent jobs. 
I ask the Government to consider where the human rights are in that situation. We could have a situation in which a Work and Income case manager asks an employer whether the termination of a job was the employee’s fault. The employer will say to Work and Income that it was the employee’s fault and they will feel quite confident in telling Work and Income about the reasons because they have nothing to lose. We will have the ludicrous situation in which that poor person will for reasons completely unknown lose his or her job and will then be told by Work and Income— 
KEITH LOCKE (Green) 
: 
 I see that Lynne Pillay wished to continue her speech; I apologise to her. But I will continue in the same vein. 
It seems that it is a very good thing to have a written employment agreement constructed and kept by the employer as a reference point. On one hand it means there is something to refer back to to see whether the employer is matching the requirements in that agreement. On the other hand—as the previous speaker pointed out—employers’ organisations will construct a standard agreement that contains the 90-day provision without any reason being required for dismissing a person within the first 90 days. That agreement will be sent out to every employer and it will almost be a black mark against them if they do not use it. Employers are very organised in that respect in making sure that all other employers keep in line. Supposedly there is a choice in terms of whether people go into the 90-day arrangement; in fact people will not be able to get a job anywhere else because all contracts will have that 90-day provision in them. People will have the choice between having a job and not having a job. 
I agree with Lynne Pillay that there will be euphemisms such as letting people go instead of sacking them. They are all excuses. Another one that came up was that a person could be overqualified. Employers might say that a person is a very nice worker but is overqualified and that they will let that person go and get somebody else. Those are not real reasons and reasons will not be required under the 90-day legislation but we can see how things will operate. 
The changes are all completely unnecessary because particularly in the labour market we have now where there is a high level of unemployment any reasonable employers will not be looking to recruit people for 90 days. They will be recruiting to get the best person on a permanent basis providing the training from day one and spending their money on that training. Having that 90-day provision has nothing to do with the quality of the employees being hired and has everything to do with being anti-union as in the examples given before: sacking people if they show any sign of standing up for their rights linking up with the union or whatever. That will be the primary reason why people are sent down the road. 
Workers who are pro-union and who will be sent down the road are generally the better workers. I have found that the more one stands up for other people’s rights the more confidence one has in one’s own rights and skills. Those people tend to be the better workers; they will be the ones who are sacked. 
In my experience it has been the most unionised workplaces that have put out the better product. I used to work at New Zealand Motor Corporation in Petone producing Honda cars. We had a strong union there and the quality of the Honda cars was great. My partner worked out at what was then Todd Motors which then changed to Mitsubishi Motors New Zealand where the union was much weaker. Quite a lot of people got annoyed with the conditions there and there was a bit of sabotaging of cars actually. The quality of the cars coming out was lower because the union was less strong. 
It is actually in the employer’s interest to have a strong union in the workplace but a lot of employers do not operate in that way; they just want to run the business their way. Trevor Mallard gave some examples of that particularly of employers who have a small business where the boss is more concerned with keeping control over everything than in having a collective workforce that works well together. 
To summarise the existence of this written agreement has its positive sides. But in the hands of the employers’ federation it will probably lead to a universalisation of this offensive 90-day provision. 
Hon DAVID CUNLIFFE (Labour—New Lynn) 
: 
 It is a pleasure to take part in this debate on Part 2 of the Employment Relations Amendment Bill (No 2) which contains the transitional provisions of such an innocuous-sounding bill. 
This bill is of course the fire-at-will bill. That is how it is known in the streets factories and workplaces of New Zealand and quite rightly so. It is the legislation that generalises the so-called pilot which allows workers to be sacked without cause or explanation in their first 90 days of employment and extends that provision to every single workplace in New Zealand. 
The Labour Opposition along with our colleagues in the Greens and others is of course fighting this bill every step of the way. It is appropriate in the debate on the transitional provisions to ask what kinds of workplaces and what kind of country this bill is a transition to. I will ask some specific questions about that issue. Is the legislation a transition to an ethically based system of industrial and employment relations? What would an ethically based system look like? Arguably an ethically based system would respect the rights of all members of a company whether they were directors management or employees. 
This bill quite simply does the opposite. This bill commoditises human beings: it treats human beings as commodities as a factor of production alongside timber bolts and oil. People are not commodities and they should not be treated like commodities. The idea that a New Zealander can be sacked without so much as the dignity of an explanation as to why when it will affect their entire future is not an ethical basis for law. It will affect not only their current earnings and mortgage but also their opportunity to get another job in another place because they will have to explain why they lost their previous one. 
Jo Goodhew 
: I raise a point of order Mr Chairperson. I am just wondering about the relevance to the part under debate. 
The CHAIRPERSON (Eric Roy) 
: I am listening and it is just inside the scope but I ask the member to bring it in please. 
Hon DAVID CUNLIFFE 
: Let us now consider the economics of this transitional provision. When this legislation comes in will it be a transition to a more productive workplace? It will certainly be a less ethical workplace. Here history provides a guide. During the 1990s there was an Act called the Employment Contracts Act. It was at the request of certain employer groups designed to make labour markets more flexible. What could be wrong with that? Flexible meant easier to hire and to fire and lower wage and labour costs. 
The economics of the Employment Contracts Act have been well documented. When the economy transitioned to that industrial law environment labour productivity went down. Why did it go down? Because the cost of labour fell relative to the cost of capital: more workers and fewer tools equal less output per worker per hour. That is a key reason why in the 2000s the New Zealand economy has been much less productive than for example our Australian colleagues’ economy. 
Mr English has in question time been debating with me Mr Anderton Mr Parker and others whether we are catching up with Australia. I will provide some data care of the Hon Jim Anderton which is a combination of OECD Australian Bureau of Statistics and Statistics New Zealand numbers. It measures real GDP per capita at purchasing power parity and it shows that in 1984 the gap between Australian and New Zealand workers was 13 percent. In 1990 it was 21 percent. In 1999 when Labour took office it had grown to 34.2 percent which is extraordinary. By 2005 under the previous Labour-led Government it had dropped to 29.8 percent. It held steady at 29.8 percent to 2006 but here is the kicker: by 2009 it had increased to 36.1 percent and in 2010 the gap between New Zealand and Australian incomes had risen to 37.4 percent. I ask how long it will be before it hits 40 percent. Nobody can argue that we are catching up with Australia. We are going in the opposite direction. 
The CHAIRPERSON (Eric Roy) 
: I caution the member that he is getting outside the scope of the debate which is on either the consequential amendment or the transitional arrangements. 
Hon DAVID CUNLIFFE 
: Thank you Mr Chairman. I appreciate your guidance on that. 
I have been trying to ask in this debate on Part 2 of the innocuous-sounding Employment Relations Amendment Bill (No 2) the fire-at-will bill what transition this bill implies for New Zealanders; for New Zealand workers who will be treated as commodities; and for the New Zealand economy which will have its labour productivity reduced as the incentive to use financial and technological capital goes down because commoditised workers will be cheapened. That is a nonsense economic strategy. We will never compete with the good old People’s Republic of China on wage rates. They pay 50c or $1 an hour; we pay a minimum wage of $13 an hour or thereabouts and of course we want to see that rise. We want to be a high-value high-income economy where people choose to migrate to live to give of their best brains and smarts and to build a brighter future. We do not want a transition to a sweatshop or a banana republic. That is what this transition—[ 
Interruption 
]. The junior Government whip soon to be the former member for Rangitata might sneer but everybody knows that this is a slippery slippery slope. 
Is it a transition to a productive industrial relations environment? That is the next question. I would have thought that even members opposite would acknowledge that New Zealand is in fact very fortunate to have a union movement that is responsible is far-sighted looks at the bigger picture and looks for the win-win situations. Gone are the days—although he had some redeeming virtues—of Jim Knox and the head-butting style of engagement. The New Zealand union movement wants to be social partners for a better future. This Government is taking that opportunity and rubbing unions’ noses in the dirt and telling them to swallow this. It is saying: “We won. You lost. Your workers get it in the neck with the 90-day fire-at-will bill—no ifs no buts no explanation. Down the road bucko.” 
I just lament the stupidity of this move. I lament the lack of humanity of the move. I lament the lack of the most basic understanding of economics that is embedded in this move. I lament frankly the short-sighted greed of employers who have lobbied for it and I lament the lack of spine of a Government that refused to stand up to those employers or perhaps believed it was the right thing to do. 
Debate on transitional provisions is the time when we ask ourselves what future we are transitioning to. What kind of future do we want for New Zealand? People all around the Chamber and those at home should be asking themselves because we are at a critical time in the economic and political cycle what sort of future we want to transition to. Will it be an ecologically responsible ethically based technologically advanced high-value economy with people choosing to migrate to New Zealand not away from it? Will it be a New Zealand where workers are paid good wages and salaries because we are innovative and smart and make great products that people want to pay a premium for with a reputation as a premium brand that leads the world in our chosen market niches? Is it that kind of future—which is clean green clever and wealthy—or is it the opposite? Is it a slippery slope to a banana republic where workers are paid pitifully by employers who cannot see beyond the end of their noses? 
Here is the tragedy in this transition. I think most employers are actually better than that. I think most employers would regard this as kind of a sideshow and quite unnecessary. That is the tragedy of it. The Government has kowtowed to a few ideologues to pass a law that is bad for workers bad for the country and even—in the end actually—bad for employers. 
Labour laments this bill. Of all the legislation that has been considered by this Parliament so far in this term this bill ranks right up there as one of the dumbest things—except the lunacy of the tax cuts but I will leave that aside—that this dumb Government has done since New Zealanders were dumb enough to elect it. 
Dr JACKIE BLUE (National) 
: 
 I move  
That the question be now put 
. 
A party vote was called for on the question  
That the question be now put. 
Ayes 69 
New Zealand National 58; ACT New Zealand 5; Maori Party 5; United Future 1. 
Noes 51 
New Zealand Labour 41; Green Party 9; Progressive 1. 
Motion agreed to. 
The result corrected after originally being announced as Ayes 69 Noes 59. 
A party vote was called for on the question  
That Part 2 be agreed to. 
Ayes 64 
New Zealand National 58; ACT New Zealand 5; United Future 1. 
Noes 56 
New Zealand Labour 41; Green Party 9; Maori Party 5; Progressive 1. 
Part 2 agreed to. 
New Part 3 Protections for employees covered by 90-day provisions 
Hon TREVOR MALLARD (Labour—Hutt South) 
: 
 This is the beginning of a series of attempts on the part of the Opposition to ameliorate the approach that has been taken by the Government in these matters. In this particular part of the Employment Relations Amendment Bill (No 2) we are looking at protections for employees who are covered by the 90-day provisions. We made some attempts to do that as we went through Part 1. We put forward some amendments to make some progress in that area. Unfortunately they were not accepted by the Government so we felt that we had no option but to put forward a new part that brought together some of those amendments—and hardened them up to be fair—and some other amendments. I do not want in any way to pretend to the Committee that we would be prepared to support the bill even if these amendments were supported but they are designed to ameliorate some of the harshest parts of this legislation. 
Again I say some of the issues were pretty well traversed in the second reading debate where we featured some of our very real concerns. One of them concerns information about a decision. I appeal again to the ACT Party. We are attempting here to get changes that all reasonable New Zealanders would agree with. The ACT Party is now allegedly a party of transparency. It used to be a party that was very much for transparency but then the perk-buster was caught using perks. But even then if we look at the views of Sir Roger Douglas and Heather Roy and even of John Boscawen—I am not sure about the new member—we can see that they have commented long and hard in this House about the importance of transparency. I say to the new member that the idea of employees being provided with access to information about a decision to dismiss them is something that I cannot see any reasonable person objecting to. 
This amendment indicates that any employer who proposes to dismiss an employee under the 90-day trial provisions must in good faith provide access to information about the decision to the affected employee before a final decision is reached. That does not say an employer cannot reach that decision. It does not say he or she has to have good faith. It does not say he or she has to act reasonably in making the decision. But it does say information has to be provided. That gives the employee the opportunity to comment. 
Sometimes people get stuff absolutely wrong. It might be that too much sauce has gone on at the request of a customer. If someone is being fired for putting too much sauce on a hamburger— 
Carol Beaumont 
: Some people like a lot of sauce. 
Hon TREVOR MALLARD 
: Some people are saucy and they need to keep their sauce levels up. I do not need a lot of extra sauce. In fact I do not like tomato sauce much at all but I like a reasonable amount of aioli or similar sauces. Quite often when I go to a decent hamburger joint I make requests as to the sauce proportions. I ask why a worker should be fired for doing what a customer asks him or her to do and the employer does not have to indicate the reasons for the firing to the worker. I can understand why an employer might have a general policy on the proportion of sauce. That might save on the use of sauce. 
The CHAIRPERSON (Eric Roy) 
: I have to make a ruling. I apologise to the member in whose name the amendment to add a new Part 3 is but I have now had time to fully consider the import of the amendment and also to take some advice. An amendment such as the amendment the member has tabled should be associated with Part 1. Therefore it is out of order as is his amendment to add a new Part 4. 
Hon TREVOR MALLARD (Labour—Hutt South) 
: 
 I raise a point of order Mr Chairperson. The member has made one of two points that I would have made. I would like to have an assurance from you that as part of the process you did not refer to the Minister in the chair the Hon John Carter on this matter. I saw you talking to the Minister in the chair and the Minister in the chair is confirming from behind you that he did look at it and you were talking about it. This is quite a hard position for me to be in but you know and I know that it is inappropriate for the Chair to discuss a matter to do with relevance with the Minister in the chair. I saw you discussing it with the Minister and—[ 
Interruption 
] 
The CHAIRPERSON (Eric Roy) 
: The member is raising a point of order and it will be heard in silence. 
Hon TREVOR MALLARD 
: —I do of course seek your assurance that that was not the case. 
But as this appears to be a new ruling—and I have been looking at Speakers’ rulings in preparation for the possibility of this happening—I would like an indication from you maybe by a nod or a wink that this is a new ruling and is not one based on a precedent currently within the Standing Orders or Speakers’ rulings. 
The CHAIRPERSON (Eric Roy) 
: Let me respond to the points. I can understand the member’s frustration given that we have started the debate on new Part 3. Yes dialogue has been going on around here. The member will have also noticed that a quite senior Clerk came in with some advice for us. I ignored all comments from any other section. I did confer with the Clerk at the Table and then we sought advice by telephone and got a more comprehensive explanation because this was new territory for me. I have not had to rule on anything as precise as this. I guess there are some points around whether it is in contradiction or whatever but the advice I have had with which I concur is that these elements that relate to Part 1 should have been dealt with at that time. I give the member an assurance that I am not influenced—and I am a little bit hurt that he had to ask the question—by the Minister in the chair; I might need counselling! But in that regard no I sought advice from the highest authority available to me and therefore I make the ruling. 
Hon TREVOR MALLARD (Labour—Hutt South) 
: 
 I raise a point of order Mr Chairperson. Of course I take your word that you did not listen to what John Carter said. I move  
That the Chairperson report progress to obtain the Speaker’s ruling on the admissibility of a proposed amendment. 
Motion agreed to. 
House resumed. 
Speaker Recalled 
The CHAIRPERSON (Eric Roy) 
: Mr Speaker the Committee of the whole House has moved to recall you for a determination on a ruling I made in relation to two amendments in the name of the Hon Trevor Mallard to insert new parts. Can I say I chose not to give the matter the appropriate amount of attention at the time and for that I take some responsibility. The Committee at the time was debating Part 2 and I was trying to determine that it be a narrow debate on two clauses and that affected my attention to relevance. It did distract me somewhat. We then commenced debating the new Part 3 and I gave the matter some further consideration. In that regard I can understand that the member in whose name the amendments are is a bit perplexed as to why the debate began then at the end of his first call I subsequently ruled it out of order. The issue in relation to the amendments is whether in my rationale they are contradicted by something that is in Part 1 or whether they should be associated with it. I did seek some advice and ruled subsequently after the debate had begun that they were out of order because the pertinence of what the amendments contained should be attached to Part 1 and should have been debated at the time of that debate. It is on that basis that I gave my ruling. 
Hon TREVOR MALLARD (Labour—Hutt South) 
: 
 I think there are two parts to it and I thank Eric Roy for his summary. Other than the conclusions I do not think there is any difference on the facts. 
The first question is the Committee having commenced debate on a particular part and a full speech on it having been accepted whether it is within the realm of the Chair of the Committee at that stage to effectively rule himself out and say that other members do not have an opportunity to debate what had started. But that is probably the lesser of the two parts although an appeal is going on on the other. 
The substantive question is whether an additional part of a bill can be moved that puts conditions on what has been agreed to previously by the Committee. There is no doubt that after quite a lot of debate and suggested changes Part 1 was passed and I think we agree that Part 2 was a fairly minor consequential transitional-type arrangement. Mr Speaker both of us have been in the House during a period when there has been increasing use of a part by part approach but I think it is fair to say not quite to the extreme we have in terms of this bill where major legislation in two major areas—to do with 90-day trial periods and to do with union access—is wrapped up in one part. I think it is fair to say that in the time of Geoffrey Palmer as Attorney-General there would have been quite a few more parts and even subsequently in the time of the Bolger administration we would have seen at least two parts each one dealing with one of the substantive issues. 
But the issue goes to whether a Committee is restricted from putting some conditions—to protect workers in this particular case—on a part that has already been agreed to saying essentially that Part 1 can work but as it does work it should be limited. That is the central question. I have been looking and I see that you are looking at the Standing Orders and Speakers’ rulings. I cannot see something that indicates that it cannot happen. My view is that it would be a very large restriction on the right of an Opposition party to move amendments that are not unreasonable. There are only two and they both certainly go to issues that are pertinent and provide some protections that are pertinent. My appeal to you Mr Speaker is that it would be an unreasonable restriction on the rights of the House if Opposition members could not move amendments in this form and were restricted to moving amendments that restrict the approach within one part of the bill. 
Hon JOHN CARTER (Minister of Civil Defence) 
: 
 I shall respond to those comments by making these two points. One is that obviously I took advice on this issue as well. I was told that the amendment interferes with the fundamental direction of the legislation particularly in relation to Part 1 and previous Acts. As a consequence the amendment proposed actually would amend Part 1 if it were passed and of course previous Acts as well. So that is an important point. The second point is that in all the time I have been in the House if there is to be an additional amendment it is done during the debate on the part rather than as an addition to it later on. I suggest that if we were to allow this to happen we would be opening up a whole new way in which we deal with legislation. We could pass one part or two parts or 10 parts then somebody could come up with a new idea and add it in as an addendum. Quite honestly I think we would be unwise to go down that path. If members have a view they should express it at the time that the part is being deliberated on. 
Hon TREVOR MALLARD (Labour—Hutt South) 
: 
 I shall speak very briefly; there is only one point I have. It was implicit in what the Hon John Carter said that these new parts would negate parts that have already been passed. That is certainly not the case. They are designed to restrict and to provide conditions on but not to negate. 
Mr SPEAKER 
: I thank honourable members. It is an interesting issue that has arisen and I myself will seek some further advice on the particular matters because I do not want to make any errors. 
Hon Trevor Mallard 
: I raise a point of order Mr Speaker. I actually wonder given the time whether we should seek leave for you to make a considered ruling and without interrupting urgency come back at 2 o’clock to give it. 
Mr SPEAKER 
: I think that is not necessary. I can quickly consider the information put before me by members. Obviously the Chairperson is the sole judge of admissibility of an amendment. That is what Speakers’ ruling 78/1 makes very clear. In respect of a new part it must be considered in the context of the structure of the bill—that is as it is drafted and before the House. Part 1 deals with amendments to the principal Act the Employment Relations Act. It deals with matters contained in the proposed new Part 3. It is argued that the proposed new part should have been proposed as amendments to Part 1. As I understand it that is what the Chair of the Committee has ruled. I am somewhat persuaded by the argument put forward by the Hon John Carter that if we are to depart from that accepted understanding the risk is that members can continually relitigate issues by introducing what are essentially new parts as the Committee considers the debate part by part. There are a couple of problems with that because even if one argues that one is only constraining the measures contained in Part 1 that is still altering them as the Committee of the whole House has made its decisions on them. I rule in favour of the Chair’s decision that the proposed amendments are out of order. 
Sitting suspended from 1 p.m. to 2 p.m.