Employment Relations (Flexible Working Arrangements) Amendment Bill — In Committee 
Employment Relations (Flexible Working Arrangements) Amendment Bill — In Committee 
[Volume:643;Page:12871] 
Employment Relations (Flexible Working Arrangements) Amendment Bill 
In Committee 
Debate resumed from 17 October. 
New clause 8 New section 179B inserted 
The CHAIRPERSON (Ann Hartley) 
: When the Committee was last considering the bill the question before the Committee was that new clause 8 as set out on Supplementary Order Paper 153 in the name of the Hon Ruth Dyson be agreed to. Since then an amendment to that amendment has been received from the Hon Trevor Mallard. It is set out on Supplementary Order Paper 160 in his name.  
PAULA BENNETT (National) 
: 
 It is hard to know whether we should be thanking the Labour Party or actually commiserating with it. At least Labour members are doing Supplementary Order Papers at this stage and will not bring this legislation back to the Committee many times in order to fix their mistakes which they seem to have had to do with other employment legislation that they have put through—I have counted something like 17 times in the last 8 years since the Labour Government put through the Employment Relations Act when it first came to power. 
I suppose that the main concern for National as far as the Employment Relations (Flexible Working Arrangements) Amendment Bill is concerned is that we have real fears that once Labour legislates working arrangements are less likely to be flexible than they currently are for those people who actually need them. Once we start to put rules and regulations in place—and we see that Supplementary Order Paper 153 in the name of the Hon Ruth Dyson has a rule that a person has to be in employment for 6 months before he or she can actually put in an application to his or her employer for flexible working hours—we restrict the freedoms that are currently there and the conversations that take place between employees and employers on a daily basis in New Zealand. Currently without a doubt—and we heard about this in the Transport and Industrial Relations Committee—flexible working arrangements are in fact happening on a daily basis as people talk to each other and work out what works between them and that process is working. 
Is there room for improvement? Absolutely! The National Party would be the first to put out a challenge to some employers by saying that if they are not getting with the programme and if they are not actually identifying the needs of their employees they should look out in the war for talent. The war for talent that is currently out there is real and extreme and it is getting worse and that has been happening for at least the last 8 years. [ 
Interruption 
] It is my war for talent. I am being mocked slightly on that one and with good reason I feel. So what we have is an absolute need for employees. Employers do not want to be turning over people lightly; they want employees to be coming in. Employers are recognising time and time again that what they need to offer is flexible working arrangements. Those conversations concerning flexible working arrangements take place at the contract stage when the parties are negotiating the conditions of employment and they continue to take place throughout the employment relationship. 
We also have many examples of employees sitting down and talking to each other working out how they can help the business to run and discussing amongst themselves the best arrangements for how that can work. Once we start to legislate we start to lose that freedom. Once we start to legislate we find that employees go by the rule of the book and once that starts to happen we have real concerns. 
Darien Fenton 
: I raise a point of order Madam Chairperson. I thought we were debating new clause 8 set out on Supplementary Order Paper 153. I think we are straying away from that. 
The CHAIRPERSON (Ann Hartley) 
: We are actually on new clause 8. The other debate has finished. 
PAULA BENNETT 
: After clause 7 there is new clause 8 and that is exactly what we were talking about. Once we start to look at the arrangements that are actually needed for employees and employers and at how this measure will work for everyone we find that it will not work out as well as it could. Those are the real fears arising from this legislation. Is it well intentioned? Will it actually fix the problems that are out there for a small minority? I do not think it will and that is certainly the concern that we bring to this Committee. 
It is easy for Labour members to bandy around statements that National does not care about employees and workers and that that is why we are not standing up and supporting this legislation. But nothing could be further from the truth and that deserves to be put on record today. What is best for those employees deserves to be considered. Once we start to say that an employee can put in a request only once every 12 months and once the authorities start to make some order that the employer must be paid compensation if a flexible working arrangement does not work all we are doing is putting in another layer of legislation which at the end of the day is least likely to help those who need it most. It bears some consideration that the unions must be informed if a request is approved. That just seems absolutely ludicrous and really unnecessary; it undermines the employee’s right to negotiate how he or she can work flexible hours. 
When it comes down to compensation how the process works and the jurisdiction that comes from it the feeling is that this is just another level of legislation that will not do anything for those people who most need flexible working arrangements. As such it is unnecessary. We should be educating people not legislating on this matter. 
Hon MARK GOSCHE (Labour—Maungakiekie) 
: 
 It would be useful if the member who just resumed her seat Paula Bennett had a look at the Supplementary Order Paper and understood it before she got up and tried to speak about it. It is pretty simple stuff. It actually requires somebody who wants to make a request for flexible working arrangements to have been employed during the 6 months immediately preceding the request. I did not hear the member mention that little fact at all. I just think that maybe the members on that side of the Chamber are very flexible. We know that some of the National members like Mr Blumsky had had enough within 6 months of working in the National caucus. Mr Blumsky requested flexible working arrangements so that he did not have to come to work any more! I thought that National would be supporting this Supplementary Order Paper because it allows flexible working arrangements for its own members. National allows all sorts of flexibility for people who are supposed to be paid by the taxpayer to come to work. 
What we are saying with this simple amendment in respect of people who need flexible working hours—and people came to the select committee and explained the reasons for it—is that there needs to be some sort of set of rules for employers. It is not unreasonable in my view for a period of 6 months to be met by a worker before he or she makes that request. As that member who has just sat down said the employee will have negotiated his or her terms and conditions at the beginning when he or she took the job on. We know that in some cases there is a power imbalance and that people who are keen to get a job will agree to anything. If those people then find their circumstances have changed in the next 6 months they have a right to approach their employers and put in a request for flexible working arrangements. 
Employers as we know in other parts of this bill have all sorts of factors they can take into account as to whether that working arrangement suits them. Now how could anybody in their right mind argue against this Supplementary Order Paper? How could those people over there in the National Party who pretend to want to represent the interests of business and employers as if any of them know anything about it oppose this amendment? It is actually—from my reading—a sensible position supported by employers. They want this sort of provision so that they know there is some period of time from when they took on the worker—a 6-month period—when the original terms and conditions of employment are intact. So I look forward to National members being sensible for once in debating legislation of this sort and saying: “Well that’s a sensible move. We can support that SOP because it does set some criteria that employers will welcome and workers will respect and that will make this a very workable piece of legislation.” 
I suppose on the other side of the Chamber members have such a fit of pique against any sorts of rights for workers that they have to get up and oppose things just for the sake of it even when they have not bothered to read what the legislation means. Clearly with Kate Wilkinson who has a law degree absent National has gone for fifth best in Paula Bennett and she does not bother to read the Supplementary Order Paper before she gets up and speaks. 
Paula Bennett 
: Oh don’t tell rubbish! 
Hon MARK GOSCHE 
: She behaved like that on the select committee and fortunately she got shifted somewhere else because her talents in terms of industrial relations were sorely lacking. She pretended that she knew something about this. Apparently she was in the “recruitment game” out there—I do not know what that means. 
Paula Bennett 
: I raise a point of order Madam Chairperson. I am delighted to be talked about. It absolutely thrills me. But whether I was on the select committee and what I did prior to coming into Parliament is a longer story than the 3 minutes that that speaker has left so I would prefer that he actually stuck to debating the Supplementary Order Paper. 
The CHAIRPERSON (Ann Hartley) 
: The member knows that is not a point of order. 
Paula Bennett 
: Point of order Madam Chairperson. 
The CHAIRPERSON (Ann Hartley) 
: I warn the member not to contest my ruling. That was not a point of order it was a debating point. 
Paula Bennett 
: I raise a point of order Madam Chairperson. 
The CHAIRPERSON (Ann Hartley) 
: You are not contesting my ruling? 
Paula Bennett 
: No I am not. I ask that the speaker stick to clause 7 of the bill. 
The CHAIRPERSON (Ann Hartley) 
: First of all we are debating new clause 8 and we have been for the last 10 minutes. The speaker was speaking to new clause 8. 
Hon MARK GOSCHE 
: Madam Chairman— 
Hon Trevor Mallard 
: She’s one of their brighter members! 
Hon MARK GOSCHE 
: Yes that is right—one of the brighter ones. It is a simple fact that new clause 8 which is what I understand we are discussing at this point in this debate deals with these issues around the 6-month period. I want to know from the next National speaker why that party opposes it because it just does not make any sense to anybody on this side of the Chamber as to why it would do so. We look forward to somebody with intelligence on the National side of the Chamber saying why it is opposed to this particular Supplementary Order Paper. 
Hon TREVOR MALLARD (Minister of Labour) 
: 
 I want to speak on a relatively narrow matter: the Supplementary Order Paper of my colleague Ruth Dyson and my amendment to it. I indicate to members that it is the position of the Government and I think the sponsor of the bill that this process not be an endless one that goes from court to court to court or from the authority to court to court. 
The difference between my Supplementary Order Paper and that of the Hon Ruth Dyson is that my Supplementary Order Paper leaves open the possibility of judicial review which would have been removed under her Supplementary Order Paper. It is the Government’s view that leaving that possibility open is appropriate and gets things within the New Zealand Bill of Rights Act and other judicial and legislative approaches that are appropriate without opening out for employers the possibility of things going on and on. 
I just say to members opposite that even if they are opposed to the legislation—and it is very hard to understand why they would be—the employers are quite keen on having this sort of restriction. Having this restriction opposed like it was by—was it Kate Wilkinson? Who was the one who was speaking? 
Hon Lianne Dalziel 
: Paula Bennett. 
Hon TREVOR MALLARD 
: Paula Bennett’s opposition to this is something that I think will be shared with employers around the country. 
Hon Lianne Dalziel 
: Yes we’ll tell them. 
Hon TREVOR MALLARD 
: We will not only tell them we will send them a copy of  
Hansard 
 to show what she was saying about it. This is something that the employers want— 
Paula Bennett 
: This will get you back in. This is the decider! 
Hon TREVOR MALLARD 
: Well I think in fact that if we are looking at the talent of the National Party—as I understand it Paula Bennett has been described as the future of the National Party and one of its brighter members—sharing what she says on this with employers will be very very good. 
SUE KEDGLEY (Green) 
: 
 A previous National Party speaker said that this particular bill had caused considerable consternation or— 
Paula Bennett 
: Angst. 
SUE KEDGLEY 
: —angst within the National Party with quite a lot of division and debate. I think in truth the National Party is embarrassed; certainly many members are embarrassed that they are opposing something as basic and as simple as the right of employees to request flexible working hours. I am quite certain that many members of the National Party—and I can think of a few like the women’s affairs spokesperson Dr Jackie Blue and Katherine Rich—strongly support this light-handed legislation and are deeply embarrassed that their party is opposing it. 
I believe that the only reason National members are opposing the legislation is that Business New Zealand approached them and asked them to oppose it. I say that because as I mentioned before the leader of the Tory party—the Conservative Party—in England espouses this legislation and is one of its great advocates so it seems curious to me that in one country a Conservative leader is embracing it and back here in New Zealand the conservative party in Parliament—the National Party—will be opposing it. It does not seem to make a lot of sense. 
It is interesting that on this very day Gordon Brown the leader of the Labour Government in England has said that he is extending the British legislation on flexible working arrangements. He has indicated in the Speech from the Throne that the Government will extend the legislation to cover basically the same people we cover in this legislation—that is all persons with caring responsibilities. He is doing so because he said that this right has proven so popular and the legislation has had such a positive effect in helping to change the workplace culture in England and make it more flexible which is of course the intention of this legislation in New Zealand. 
The Green Party will support new clause 8 which we are talking about. This clause will enable a judicial review to take place. We need to remember that the reason the original amendment was put in place by Ruth Dyson the previous Minister of Labour was that she was trying to bend over backwards to accommodate the concerns of employers. She was trying to limit the process by having disputes resolved at the lowest possible level and that is why she came up with this provision. However the Government sought a New Zealand Bill of Rights Act assessment and the Ministry of Justice strongly recommended that there should be provision to allow an employee to take a dispute to judicial review. That is what this amendment will do and that is why we would expect it to be supported by all parties in this Chamber. 
To put this legislation in context we need to remember that we are addressing a particular problem here in New Zealand where we have some of the longest and most inflexible working hours in the world with a fifth of our employees working more than 50 hours a week. The time that parents are able to spend with their children has declined steeply and trying to balance those competing demands of paid work and raising a family has become one of the most acute sources of stress in New Zealand. That is what we are trying to address here. 
 New Zealanders are in danger of becoming a nation of wage slaves with no time for children or for community work. Survey after survey shows that employees are feeling overloaded tired and chronically stressed. I think that we as a society are just starting to appreciate the huge price we are paying for these long and inflexible working hours in terms of children not being able to see their parents in terms of parents not having time for their families and relationships in terms of workplace health stress and in terms of our economy. We know again from many many pieces of research that in workplaces where there is more flexibility employees are more productive and motivated. So passing this legislation which creates a right and encourages more flexible working hours will help to create I believe more productive workplaces in New Zealand. 
Just to conclude on new clause 8 I thank the new Minister of Labour Mr Mallard for putting forward his amendment seeking to rectify a concern of the Ministry of Justice and making sure that the bill complies with the New Zealand Bill of Rights Act 1990. Who could possibly oppose that? I think Supplementary Order Paper 160 is very straightforward. Its explanatory note explains its purposes the main one being to enable judicial review. But I repeat that the intention is to try to resolve at the lowest possible level any disputes that may arise first of all by the Department of Labour inspector then if that does not resolve the matter by a mediator again at no expense or cost to the employer. Only then would an employee be able to go to the Employment Relations Authority. 
National members I am sure will be very pleased to know that we are trying to limit the grounds for litigation in the courts. After all the intention of the legislation is to give employees the right to request flexible working hours to give employers a statutory obligation to seek to accommodate those requests as much as they can without undermining their business to try to encourage good employment relations and to resolve any disputes in an amicable and low-level way. It is not the intention to clog up the courts with disputes and I do not believe that employees would seek to do that. After all what we are talking about here is a very modest right which is simply the right to request more flexible working hours. 
It is amazing that the National Party which claims to be so in favour of families and of supporting families would oppose one of the pieces of legislation that seeks to accommodate the needs of families by lowering the stresses that families are facing today. And it is arguably the most light-handed piece of legislation that has come before Parliament certainly in the few years I have been here. So I think the National Party is embarrassed to be opposing the bill; I know that some of its members are. 
In conclusion I want to say how pleased I am that virtually all other parties in the House are supporting the bill. Once again I thank the previous Minister of Labour Ruth Dyson for her very constructive amendments and the present Minister of Labour Mr Mallard for his amendment. Thank you. 
DARIEN FENTON (Labour) 
: 
 I want to just make a few brief comments if I may in relation to the Supplementary Order Papers and new clause 8. Sue Kedgley has already mentioned some of these things and I totally agree with what she said in terms of the efforts of the previous Minister and this Government to bend over backwards to accommodate employers’ concerns. I was on the Transport and Industrial Relations Committee and we listened very carefully to what employers said. If members look at the EMA Central website they will see that one of the concerns raised there is that the bill imposed unnecessary legislation that would bring increased compliance costs and legislative loopholes and was likely to give rise to additional litigation. We certainly took that on board. In fact this is extremely light-handed legislation as the member said and I do not think it will surprise members to know that in fact I would like to see it much stronger. 
I think that it is very very good that we have improved this bill and it is great that we are leading the way in terms of whom it applies to. I am glad also that the new Minister has proposed a provision that will allow for judicial review. But let us just get real here: we are talking about the right for someone to request flexible working hours—the right to request. 
John Hayes 
: You don’t need a law to do it. 
DARIEN FENTON 
: National says it supports that but is not prepared to have any framework or anything around it that will make it a reality. 
Employers were given a year. We put the legislation on hold for a year and employers were given a year to prove that it could be done by education. What happened? Not a lot! At the end of that time a survey was done by the Department of Labour that showed that people are still crying out for flexible working hours. The member Sue Kedgley referred to our long working hours and our problems and it is the No. 1 issue that comes up. 
I return to new clause 8 and say that the Committee needs to understand that this is probably the only employment legislation I am aware of that has such limitations on the right for people to go to the Employment Relations Authority then to the Employment Court then to the Supreme Court. This is our effort in terms of trying to make it work for both employers and workers and I think we have bent over backwards. 
I make just a final comment in case National members have not understood who is behind this bill. We are talking about Rural Women New Zealand the National Council of Women the Parents Centres the Federation of Business and Professional Women the Young Women’s Christian Association of Aotearoa Grey Power—the list goes on and on. They support what is being done in this legislation today and I look forward to the third reading. 
The question was put that the amendment set out on Supplementary Order Paper 160 in the name of the Hon Trevor Mallard to proposed new clause 8 set out on Supplementary Order Paper 153 in the name of the Hon Ruth Dyson be agreed to. 
A party vote was called for on the question  
That the amendment to proposed new clause 8 be agreed to. 
Ayes 70 
New Zealand Labour 49; New Zealand First 7; Green Party 6; Maori Party 4; United Future 2; Progressive 1; Independent: Field. 
Noes 49 
New Zealand National 48; Independent: Copeland. 
Amendment to new clause 8 agreed to. 
The question was put that the amendment set out on Supplementary Order Paper 153 in the name of the Hon Ruth Dyson to add new clause 8 as amended be agreed to. 
A party vote was called for on the question  
That new clause 8 as amended be agreed to. 
Ayes 70 
New Zealand Labour 49; New Zealand First 7; Green Party 6; Maori Party 4; United Future 2; Progressive 1; Independent: Field. 
Noes 49 
New Zealand National 48; Independent: Copeland. 
New clause 8 as amended agreed to.