Employment Relations Amendment Bill — In CommitteeText is incorporated into the Bound VolumeEmployment Relations Amendment Bill — In Committee[Sitting date: 28 October 2014. Volume:701;Page:304. Text is incorporated into the Bound Volume.]Employment Relations Amendment BillIn CommitteeDebate resumed from 23 October.Clauses 1 to 3 (continued)DENISE ROCHE (Green):When we were interrupted we were talking about the title and commencement of the bill. I was just explaining the second reason why we should actually be calling this bill the “Undermining Health and Safety Legislation Bill”. The first reason was around the removal of a right—a right—to have a tea break and the impact on workers’ health and safety in those circumstances. The second reason is that this bill also includes the removal of the right for new workers when they start to be offered the same terms and conditions as the collective employment agreement that would be in place on site. It removes that right. What it does say is that those workers are then left on their own. They are then required to negotiate individually with the employer.This is an inroad into the health and safety of workers when you consider that new workers are also in the situation where they are on a 90-day trial which this Government introduced legislation for a couple of terms ago. This means that an environment has been fostered where workers are unable to speak up not only about requiring a tea break but also about any health and safety risks that might be on site. This bill undermines health and safety in that way as well. That is why we should call it the “Undermining Health and Safety Legislation Bill”.But I think that we have a very good reason to call this what it really is which is the 1991 Employment Contracts Act because this bill is a great step backwards. This takes us straight back to what was happening in 1991. There are some of us in the Chamber who were actually working in the industrial relations field at the time who went through with the workers exactly what that legislation meant.The legislation before us mirrors a lot of the same provisions that were in that 1991 Employment Contracts Act specifically around the reduction in the rights of unions to organise with workers the movement away from in those days industry-based bargaining to enterprise bargaining and then breaking it down into individual case bargaining. Make no mistake—this is what this bill is about. It is about bringing things back down to individual-based bargaining. Who wins when that happens? The employer does. We know for a fact that Cabinet briefing papers on this legislation—CHRIS HIPKINS (Labour—Rimutaka):I am very happy to make my speech on the title and commencement provisions of this particular legislation. I want to pick up a point regarding a technical issue that I raised last week with regard to the schedules. I want to particularly refer to clause 3 of the bill which refers to the principal Act. It says: “This Act amends the Employment Relations Act 2000 (the principal Act).” The reason that I raise this is that during the Committee stage I had a bit of an interchange with the Minister of Workplace Relations and Safety about some circular wording in a later clause of the bill—in the schedules of the bill—where instead of referring to the principal Act the wording has actually been changed by the Transport and Industrial Relations Committee to now refer to “this Act” itself rather than to the principal Act.The reason that that is important is for example the provision in clause 2(6) of new schedule 1AA which says: “Part 6A of this Act (as it was immediately before the commencement of the 2013 Act) continues to apply to the restructurings as if the 2013 Act had not been passed.” The reason that that becomes significant is that if the words “this Act” are interpreted to mean this bill that we are now passing then that simply makes no sense whatsoever—it becomes completely circular. Basically it is a double negative that cancels itself out. However if the words “this Act” are taken to mean the principal Act then the subclause actually makes sense because it basically says that the principal Act will continue to apply as if this bill that we are now passing had not been passed.If we are talking about the principal Act in one part of the bill and we are talking about the bill itself in another part then that becomes slightly confusing for many many people involved. I thought our objective in this Chamber was to try to start drafting law into plain English rather than something that you need to have a law degree in order to be able to follow because it is incredibly complex.Hon Ruth Dyson: What did the Minister say when you asked?CHRIS HIPKINS: The Minister did reply to the comment although even then I am not entirely sure that he quite understood what his answer was. In fact he admitted that he did not quite understand it himself but that he had been advised that that was the right thing to do. So at least he was honest about saying that he did not understand what he was doing and that he had been advised that that was the right thing to do. I commended him for at least taking part in the debate which was very good. I think that this is a drafting issue. I think that at some point in time in the future someone from the Parliamentary Counsel Office may like to provide some guidance to the Government about this to get a greater degree of consistency on it because it seems to me that we should be—well like I said—consistent right throughout the bill.The second point that I want to raise relates to the commencement provision clause 2 of this legislation. It comes into force 4 months after the date on which it receives the Royal assent. This is a very topical issue—well it is kind of topical; I am about to make it topical—because the Royal assent has of course a degree of royal prerogative within it. The head of State could refuse to sign this particular piece of legislation if they so choose. That has never happened in New Zealand’s history but technically it could happen. In reality in New Zealand it is of course the Governor-General who signs Acts on behalf of the Queen but the Governor-General or the Queen could refuse to assent to legislation and therefore it would never come into force. As I said that has never happened.The reason that I say it is topical is that it falls of course within the bucket otherwise known as the reserve powers of the head of State. The last time that the reserve powers of the head of State were used in Australasia was when they were used by the then Governor-General of Australia to remove the Prime Minister of the then Parliament Gough Whitlam who passed away last week. So it is of course possible that the head of State or the Governor-General acting as head of State can use reserve powers. Therefore this bill like any other bill that gets passed by the Parliament could technically never come into force if the head of State chose to refuse to give it the Royal assent. There is actually a reasonably recent example where that has happened—not in New Zealand or Australia but in fact in Belgium. The King of Belgium refused to provide the Royal assent to a piece of legislation that was a conscience vote. I think it was about either homosexual law reform or gay marriage and the Royal assent was refused. There in Belgium the parliamentarians used a very little-known power that they also had to effectively depose the King for a period of time. In this case I think they deposed the King for about 24 hours and the Prime Minister was then able to sign the legislation instead—[Interruption] I have not quite finished yet Mr Chair—The CHAIRPERSON (Hon Chester Borrows): You have now.Dr MEGAN WOODS (Labour—Wigram):I am sure my colleague Chris Hipkins can pick up his strand of thought in one of his many contributions on this part of the bill throughout the evening. Tonight I want to talk specifically to clause 2 of the bill around the commencement date that is set down. As my colleague Chris Hipkins was just talking about this is a piece of legislation that is due to come into being 4 months after it receives the Royal assent. I am not going to be talking about whether or not the Governor-General will indeed give this bill the Royal assent but I will talk about the significance of the commencement date being 4 months after the Royal assent and what some of the ramifications of that are.What we have is a number of employers in New Zealand who are very aware of the commencement date of this legislation. In fact they have been waiting and hoping that this bill will come into force and indeed they have been delaying collective bargaining. Why the commencement date as stated under clause 2 of the bill has been of specific interest to these employers is around what clauses 7 8 and 9 do around the removal of the duty to conclude collective bargaining. What we have is a large number of employers—or a small number of employers in this country actually because we do not have a large number of bad employers in this country. What we have is a very bad piece of legislation going through this Committee in relation to our employment law.Let us look to some examples of individuals and where this commencement date in clause 2 of the bill is going to affect their lives. Have a look at Freda Soe who works as a community support worker. She is poorly paid and her union has been trying to negotiate a collective contract for her and her workmates for the past 12 months and it still has not achieved that collective agreement. The employer has made it known that it does not want a collective agreement on this worksite but it is currently obliged to conclude unless there is a valid reason not to.But what we have with the commencement date in clause 2 of this bill is a complete removal of that right and this is what this employer has been waiting for. We can see very clearly what this commencement date of 4 months after the Royal assent that is given to this legislation is going to mean to individual workers out there. It is going to mean there will not be a collective agreement because the employer can simply walk away from it because of the provisions that are in clauses 7 8 and 9 which will come into being after the 4-month commencement date.We can also look to the meat industry where this is something that a major employer is very aware of—when the date of the commencement of this legislation is going to be passed and put into place. We have seen in the meat industry in the last couple of years very long and bitter battles that have been waged around the issues of collective bargaining and one that a major employer is now waiting to see there.We see that there are worksites where collective bargaining is not being concluded. In fact they are refusing to acknowledge the meatworkers union’s request to enter into negotiations and bargain around a collective agreement because they know that this legislation has been sitting waiting on the Government books. They are just surprised that the commencement date under clause 2 is going to be a little later than they first thought it would be of course because the Government hoped to get it through during the last Parliament but having lost the vote of John Banks it was not able to. So the commencement date has been pushed out a little further and it is a good thing too as my colleague has said.We also saw the duty to conclude collective bargaining around the Ports of Auckland and this being a very key issue in what happened in the Ports of Auckland dispute a couple of years ago. If this legislation had been in place at the time we would have seen a very different outcome of that dispute. It is a very clear illustration of why it is that employers are waiting with such bated breath for the commencement of this legislation 4 months after the Royal assent for this bill to enter on to our statute book. Under clauses 7 8 and 9 we will have a complete shift. So there were many pernicious things in this legislation that will come into being—Kris Faafoi: Pernicious.Dr MEGAN WOODS: —thank you Mr Faafoi—4 months after it receives the Royal assent. We have talked at length in this Chamber about the removal of the tea break. We have talked about Part 6A and extending that out. But the removal of the duty to conclude collective bargaining is one of the most fundamental shifts we are seeing in our employment legislation that is going to come into being when this bill is passed into law and it is something that we absolutely need to be concerned about. Those are the very reasons why my colleague Chris Hipkins was talking about the fact that this is—BARBARA STEWART (NZ First):Firstly can I say congratulations Mr Chairman on your appointment to this very important role in our Parliament and we have to say congratulations to the other Speakers as well. We look forward to working with you all.I am pleased to take a call on behalf of New Zealand First to ensure that New Zealanders know that we are definitely opposed to this Employment Relations Amendment Bill just as they are and we have not heard anything in any part of this debate that will make us change our minds. The title of the bill gives us an indication of the serious matters that are actually covered by the bill changing workplace conditions as they are known today. It is definitely not about improving employee relations. Last week when we were talking about this bill we were asked to provide some novelty so in the interests of providing this novelty we put our thinking caps on and decided to come up with some different titles. The first one that we thought of was “Back to the Past Amendment Bill”. The fact that tea breaks and lunch breaks can be totally negotiated away is ludicrous. Back to the early 1900s we return when these breaks were not considered necessary at all.Perhaps we could also call the bill the “Stamp on Health and Safety Bill”? In the last Parliament we passed a lot of bills focused on ensuring that worker safety was at the focus of all workplaces but this bill we believe is actually putting health and safety at risk. All workers regardless of their job need a break. After a break productivity is usually higher the focus of the workers is higher and of course the potential for accidents is a little less but this legislation has got the potential to erode all the previous legislation that we have put through in this area. The bottom line is that all workers have got the right to return home safely at the end of their work day. We on this side of the Chamber know that many of the workers today are working more than one job to try to make ends meet. Of course how easy it will be to negotiate away your lunch breaks and tea breaks to ensure that you get just that little bit more money. They will negotiate away this basic right and we will have challenges.We can also call the bill the “Anti-worker Amendment Bill”. We all know that the employment relationship is not a level playing field despite the Government telling us that it is. If you are a young worker and there are numerous other groups as well not many of those workers and groups have got the capacity or the capability to negotiate with the employer. It is not a level playing field. And guess what? Many of the workers do not want to negotiate because they fear for their jobs. We know that employment should be a collaborative relationship but despite the hype jobs are not numerous in most regions throughout New Zealand. I know. I look in my region in the Waikato and there are not a lot of jobs going there. Everybody wants to keep the job that they have got so of course they will negotiate away tea breaks lunch breaks anything to ensure that they retain their job.We could also call the bill the “Employment Relations Minus Common Sense Bill”. Common sense is actually missing from this piece of legislation. There has been absolutely no call from employers or employees for this bill or any of the criteria that are in it. It has not been the result of a gap that has been identified in the workplaces. Employees and employers were working together so why change what has actually been working quite well? It is not common sense. We believe that this bill has got the potential to create a very hostile work environment with a decrease in productivity. The fact that the Act comes into force 4 months after the date on which it receives the Royal assent really raises some questions for us. So we believe that the title of this bill is not right. It does need to be reviewed and we would like to see some other titles come up. This bill is not for workers. Thank you.JAMI-LEE ROSS (Junior Whip—National):I move That the question be now put.KELVIN DAVIS (Labour—Te Tai Tokerau):Thank you Mr Chair and I appreciate the call. I would like to talk about clause 1 of the Employment Relations Amendment Bill. I would just like to say that I agree with a number of the names that have been raised by members of both New Zealand First and the Greens—in particular the “Undermining the Rights of Kiwi Workers Bill”.In fact there is an area that I have a bit of passing interest in and that is education. I believe that this bill may have the potential to undermine the rights of Kiwi teachers. You see new section 44A inserted by clause 11 allows employers to opt out of multi-employer collective bargaining. I would like to know exactly the effect that this will have on education. When teacher contracts are negotiated the representative organisations of teachers are the New Zealand Educational Institute or the Post Primary Teachers Association (PPTA). The Ministry of Education represents its own interests.The anomaly here though is that the employers of teachers are actually the boards of trustees of which there are over 2000. Those boards of trustees from my understanding of how this is written have the potential to opt out of the collective bargaining. I ask whether this means a board of trustees if it wants to could refuse to offer a union-negotiated contract and offer instead only the individual contracts it may wish to offer. Hence I say that this could be the undermining of Kiwi teachers’ rights. If that is the case I ask what the relationship is then going to be: between boards of trustees and their employees the teachers; between the boards of trustees and their employees the principals; or between principals and teachers. Principals are actually in a really strange situation where not only are they part of a board—i.e. part of the employer group—they are actually an employee of the board of trustees as well. So this has the potential to impact quite significantly on the relationships between the employers and the employees in a myriad of ways when it comes to schools.My big fear is that this may be a bit of a stalking horse for that old National Government policy of the 1990s: bulk funding. If boards of trustees can opt out of offering the collective contract then they can basically offer what they want to teachers in terms of wages and conditions. Of course we know that education is woefully inadequately underfunded. The first thing that goes when schools or organisations or businesses are running low on funds is workers and their salaries. In the case of education if salaries or wages were to go then teachers would leave. Normally the first teachers who will go will be those who can go—the best teachers. This may then compound achievement because what they will be doing is narrowing down the pool of teaching talent in schools.As I say not only is this undermining the rights of Kiwi workers; it could potentially undermine the rights of Kiwi teachers which in the end will undermine achievement for our children our most vulnerable people in society. This bill could actually go so far as to have a negative impact on educational achievement across schools.I would like the Minister in the chair Nathan Guy to answer these questions around new section 44A. Does this mean that boards of trustees can opt out of multi-employer collective bargaining—boards of trustees which are the employers of teachers? The New Zealand Educational Institute and the PPTA are the groups that actually do the negotiating on behalf of teachers but the Ministry of Education is the Government’s representative. That of course is strange because boards of trustees are actually the employers of teachers. So it is a very strange situation that does need to be answered on behalf of all the teachers out there who are listening and all the principals and all the members of the boards of trustees. We certainly do not want the spectre of bulk funding to arise again in education in New Zealand.KANWALJIT SINGH BAKSHI (National):I move That the question be now put.Dr DAVID CLARK (Labour—Dunedin North):Thank you to my colleagues for their congratulations on my getting the call. I rise to speak to this bill and will note from the start that there is a Supplementary Order Paper in my name Supplementary Order Paper 14. I have not put in too many Supplementary Order Papers in my time in this Parliament but I have on this occasion because I feel particularly strongly about this bill.The Labour Party opposes this bill in principle because we believe in protecting New Zealand families and building a high-wage economy. This bill will so soon—in just 4 months—strike to the heart of some of the current protections that are afforded to our vulnerable workers. The changes that are going to be made the punitive clauses will have natural justice consequences. Some of these actions that have already been undertaken by workers who are entering into strike activity—partial strikes and so forth—have been undertaken on the basis of the law as it stands currently. So people who have families that depend on their wages who have commitments to mortgages and other kinds of commitments of various types which we all have as citizens in this country like financial commitments already undertaken—that was a circular sentence but you know what I am saying—have still got these things in front of them.The law is changing and this does raise an issue of natural justice. I touched on that briefly when I spoke on Part 2 of the bill. But what I am proposing here in my Supplementary Order Paper is that this bill’s commencement date be pushed out by replacing in clause 2 the word “months” with the word “years”. That would amend the commencement date of the bill from 4 months to 4 years. That would ensure that employers unions and workers will have more time to consider and adapt to the changes proposed. It not only will allow time for those negotiations that have already been undertaken to be concluded but actually more generally will allow more time for the whole system to adapt to what is proposed. It will also ensure that the changes around collective bargaining and multi-employer collective agreements do not affect the negotiations currently under way or agreements that are soon to expire which is a variation on the case that I have been laying out for natural justice.So with that simple simple amendment we could make this bill a much better bill and make it a bill that is fairer to those who are already undertaking activity. It will make it an even transition. It may even allow for some movement to examine this in the cool light of day in a more reasoned debate and we may come to a different conclusion with this bill. I would be interested in the Minister’s view on this because it is a simple amendment. One word is changing. The Minister in the chair Nathan Guy will have a view I am sure about this amendment. Although he does not look to be engaging on it right now I am sure he will have a view.If I can give some examples of negotiations already under way I have a list the length of a number of pages of negotiations that will be settled in that time period that I am proposing. Those negotiations cover a huge range of services in our society that all of us at one point or another come in contact with. They are in the sectors of education mentioned by my colleague Kelvin Davis. We have the School Caretakers’ and Cleaners’ (incl Canteen Workers) Collective Agreement. We have got the Secondary and Area School Groundstaff Collective Agreement. We have got the Secondary Teachers’ Collective Agreement the Special Residential Schools’ Collective Agreement the Area School Teachers’ Collective Agreement the Primary Principals’ Collective Agreement the Primary Teachers’ Collective Agreement and Te Aho o Te Kura Pounamu Early Childhood Teachers’ Collective Agreement. All of those particular agreements in that particular list which is one of several I would like to touch upon are due to expire between March 2015 and March 2016. That is not so far away actually. Those teachers will have already been thinking about how they go about their next set of wage agreements before this legislation has passed through the House.Another area that is covered by many agreements is the health care area and I have several pages’ worth of agreements that are due to be settled within the first 6 months of 2015. We have got midwifery agreements. All of us who have had children or have had the joy of children in the midst of our immediate family will have come into contact with midwives as the primary lead maternity carers in our society. Their agreement—SARAH DOWIE (National—Invercargill):I move That the question be now put.CLARE CURRAN (Labour—Dunedin South):First of all I would just like to say warmest congratulations to you Mr Chair on your new position. Unfortunately though it is with deep disappointment that I rise to speak for the first time in the 51st Parliament on this particular bill which is probably one of the worst bills that we have seen put forward to us by this Government. Speaking to the commencement and title clauses of this bill I say this mirrors not only the 1991 Employment Contracts Act but also the Workplace Relations Act introduced by the 1996 Australian Howard Government. Unfortunately though at that time there was a confrontational approach by both Governments to unions and to workplace rights. This bill would be more aptly named the “Wolf in Sheep’s Clothing Bill” because ultimately that is what it represents and ultimately we know that it is not good employment law.Just referring to what my colleague Chris Hipkins said earlier tonight about a potential constitutional crisis emerging from the confusion around the title of this Act there was a very apt phrase used by the late Gough Whitlam at the time of the constitutional crisis in Australia which was: “Well may we say ‘God Save the Queen’ because nothing will save the Governor-General!”. It may be that we never hear those words in New Zealand. It was not a great phrase to be used in Australia at that time but unfortunately the legislation that is being put before the Committee tonight has the effects of bringing into question constitutional issues and striking to the very heart of the contract between employers and employees.It is a particularly deep disappointment to hear that the Minister who is shepherding this bill through the House as we speak is the Minister who comes from a long line of workers in the rail industry and in the waterfront industry where there were conditions that were very hard fought for that are now being eroded as we see in the Chamber tonight. Unfortunately when he first spoke in the Chamber last week he painted the Opposition as irrational ranters like meerkats and he spoke as if we were cloth-cap socialists. Unfortunately the ideology that we are seeing through this bill actually comes from that side of the Chamber and not from this side of the Chamber because ultimately all we want and all the workers that stand behind us want is a fair go. Government members use words like “flexibility” and “small changes”. They paint the Opposition as irrational but it is the ideologues and the ideology that are coming from the other side.My colleague David Clark who just got cut off while reading from the list of collective agreements that are going to expire in the next couple of years started to read an important list of the workers who are actually going to be affected and who basically cover the whole spectrum. These are not just workers whom you would classify as being vulnerable workers. Every worker in this country essentially is going to be impacted on as a result of this bill. When you think about it at the moment so many of the workers in the health industry are very stressed and are not able to take breaks through the pressures that are being put on them. I will give as a good example of that nurses at Dunedin Hospital.CLAYTON MITCHELL (NZ First):It is a great honour to be able to stand up here for the first time in this 51st Parliament to take the call today on behalf of New Zealand First which passionately opposes this bill. Specifically I want to be able to talk to the clauses relating to rests and meal breaks.Moving forward we have heard some very sensible voices today on this side of the bench particularly from the Greens Labour and our fellow New Zealand First members. It does concern me that this has come into this Parliament particularly in light of the fact that this new amendment that is being proposed does not make sense to us. It has got no reason to be there particularly when we talk about the rights of our workers who are the lifeblood of our country and who have worked so hard for generations to get the acknowledgment and the respect whether it be by employment hours or by the terms and conditions that they seek.I think if we give employers this ability to negotiate away the rights of our employees we are going to have some serious issues in the future particularly around our health and safety; around our lower productivity which this bill of course is designed to try to increase; and of course around strong employer and employee relationships which will be at the very best stretched if this bill goes through.When I think about the accidents that happen in our workplace particularly in the forestry industry and the trucking industries people in these industries are forced to take breaks because lives depend on them being rested well fed and ready to go on with their job. If we put this into its pure form we have got people who are stretched out beyond belief financially in their homes who are prepared to work through their meal breaks to save a few extra dollars if it might get milk food and bread on their tables. They are likely to take those risks and put the lives of themselves and many other New Zealanders at risk.We would like to think that we are a sensible Parliament looking after the needs of all New Zealanders equally—employers and employees—and that we can find a balance where we are showing that equilibrium in its true form. There is so much more that I could talk about with regard to the other aspects of this bill that we disagree with but I feel strongly that taking away the right for people to have their breaks during the day—including this wonderful House the members of which have just enjoyed a 1½ hour meal break—would certainly change the environment. Certainly Parliament TV might be looking upon sleepy politicians. For those who are prepared to work through their meal breaks for a few extra dollars it just does not make any sense whatsoever. So I would like to oppose the bill on New Zealand First’s part. Thank you very much.JOANNE HAYES (Third Whip—National):I move That the question be now put.A party votewas called for on the questionThat the question be now put.Ayes64New Zealand National 60; Māori Party 2; ACT New Zealand 1; United Future 1.Noes57New Zealand Labour 32; Green Party 14; New Zealand First 11.Motion agreed to.A party votewas called for on the questionThat clause 1 be agreed to.Ayes62New Zealand National 60; ACT New Zealand 1; United Future 1.Noes59New Zealand Labour 32; Green Party 14; New Zealand First 11; Māori Party 2.Clause 1 agreed to.The question was put that the amendment set out on Supplementary Order Paper 14 in the name of Dr David Clark to clause 2 be agreed to.A party votewas called for on the questionThat the amendment be agreed to.Ayes59New Zealand Labour 32; Green Party 14; New Zealand First 11; Māori Party 2.Noes62New Zealand National 60; ACT New Zealand 1; United Future 1.Amendment not agreed to.A party votewas called for on the questionThat clause 2 be agreed to.Ayes62New Zealand National 60; ACT New Zealand 1; United Future 1.Noes59New Zealand Labour 32; Green Party 14; New Zealand First 11; Māori Party 2.Clause 2 agreed to.A party votewas called for on the questionThat clause 3 be agreed to.Ayes62New Zealand National 60; ACT New Zealand 1; United Future 1.Noes59New Zealand Labour 32; Green Party 14; New Zealand First 11; Māori Party 2.Clause 3 agreed to.Bill to be reported with amendment presently.