Employment Relations Amendment Bill — Second Reading In Committee 
Employment Relations Amendment Bill — Second Reading In Committee 
[Volume:651;Page:384] 
Employment Relations Amendment Bill 
Second Reading 
Debate resumed. 
CHRIS TREMAIN (National—Napier) 
: 
 Having heard eight excellent maiden speeches I rise to address the second reading of the Employment Relations Amendment Bill.  
Just a month after the election Parliament is in urgency and we are putting through this legislation. We are delivering on the promises we made during the election campaign. Those promises were well canvassed throughout the election period and were I might add clearly part of the 100-day agenda that we took to the public and that is now being put through the House. It is excellent.  
As stated in clause 4 “Purpose” this bill introduces a 90-day grievance-free probation period. This proposal has been well canvassed around the country—particularly in 2006-07 when Dr Wayne Mapp first put forward the predecessor to the bill. This legislation will make labour markets a little more flexible and is part of the recipe that National proposed and is now implementing to lift economic growth.  
The Hon Lianne Dalziel formerly the Minister for Small Business made a very interesting point earlier in the debate. She talked about her pride and joy the Small Business Advisory Group. It is an important group that she selected and got up and running. That group put out a report about the key things that would help to drive small business across New Zealand. One of the top recommendations—in fact I believe that it was No. 1 or No. 2—was to introduce a 90-day grievance-free probation period. Funnily enough after that recommendation had been on the agenda for a couple of years the same group returned a report to the House on the performance of the Minister and the Labour-led Government with regard to those criteria and the Minister received a score of two out of 10 for the delivery of a number of key recommendations. I would not have thought that that was a great score but the Minister was proud of her achievements and was happy to move on.  
We are introducing this 90-day bill today. As I said the proposal was well canvassed in 2006 when Dr Mapp first brought the predecessor to this bill to the House. That bill has been watered down quite significantly but the proposal was again well canvassed during the election campaign. This legislation is opposed by Labour members in typical fashion as they seek to create myth upon myth about its possible horrendous outcomes. These myths are propagated to feather their own political nests. For example the Hon Annette King suggested earlier that businesses would stop growing once they had 20 employees. Please! I shouted across the floor to the member that people do not go into business just to stop when they have taken on 20 employees. They are passionate about growing their businesses; they put their heart and soul into them. If they are fortunate enough to have a successful business that grows and grows they are hardly going to haul on the handbrake because they have reached 20 employees. That is just insane and will not happen.  
The classic myth—the myth of all myths—is that employers who have had employees on board for 89 days will then sack them. Once again that myth has been propagated by just about every speaker on the other side of the House. It is unbelievable; it just does not happen. In the real world if employees are even half good employers wrap them in cotton wool and hold on to them because they add value to the organisation and help to take it forward. The last thing an employer would do is sack an employee on his or her 89th day.  
I really think Labour is creating a whole raft of myths to scare people about this legislation when in fact there is no need. People who start a small business invest a big chunk of their lives in it. They might mortgage their house or borrow money off their mum and dad to get into the business. They do the hard yards. They have to work as long as or longer than the politicians who work through urgency in this House. Once their employees have gone home they have to work on their tax returns their PAYE and their fringe benefit tax (FBT)—maybe from 12 o’clock at night until 2 in the morning. They put their heart and soul into their business. 
Hon Member 
: Oh rubbish! 
CHRIS TREMAIN 
: A load of rubbish? That clearly shows that members on that side of the House have had no involvement in small business. I have a lot of respect for the member but he should not go there with me. He says that small-business owners are not out there at midnight doing the hard yards.  
Hon Parekura Horomia 
: At least I built mine! You got yours off your old man.  
CHRIS TREMAIN 
: I say to Mr Horomia that for small-business owners who are on their own the only time they get to do things such as PAYE and FBT returns is after 5 o’clock when their shop shuts and sales are stopped. We need to be flexible; we need to provide a flexible labour market.  
Another former Minister Jim Anderton admitted in the House that by far the majority of employers are good employers. That was good to hear because it is true. By far the majority of small-business people are good employers. In my own experience of 16 years in business we wrapped people in cotton wool and looked after them. If we found good employees we were in good shape.  
To wind up my speech I say that if we are to grow the economy we need law that helps the majority of small businesses—we really do. That is what we need. In the first 100 days of our legislative agenda we need to pass law such as this that will drive our economy forward. I support this bill on that basis. Thank you very much.  
Hon RUTH DYSON (Labour—Port Hills) 
: 
 I will record quite a rare moment in the history of this Parliament by agreeing—briefly though it will be—with something Chris Tremain said. This is unheard of and is unlikely to occur again in the future. I too am proud of the values and the commitment shown by those who have given their maiden speeches over the last couple of days. Obviously I have a bias towards the Labour members as I am sure Chris Tremain has a bias towards the others. What is really interesting is that everyone who has made a speech from whichever perspective has come here believing they have a contribution to make. They have come here to contribute in a way that is indicative of the public service values we have in New Zealand.  
I was reflecting on that after we heard the Green Party member Kevin Hague’s speech. I was thinking that if I were the Minister of Labour now and had just introduced this bill and someone had asked me what I had contributed in Parliament how proud would I feel to say that my first bill as the Minister of Labour—my significant contribution my commitment to improving the quality of life for ordinary New Zealanders—would take away employment rights from 700000 New Zealanders every year? I feel for Kate Wilkinson because I am sure that when she became a member of this House she did not make that commitment in her maiden speech; it was not what she aspired to do. I regret that she is not able to give something to the more vulnerable people in our communities but instead has chosen to use her time as Minister to take something away.  
According to the speeches and rhetoric of National members this bill purports to open job opportunities. The challenge that employers up and down the country face and have faced for several years—it will diminish over the next little while but not a lot—is to find skilled staff to fill their job vacancies. That is the challenge that every employer talks about. That is why Labour put so much emphasis on ensuring that that skills match was connected—that the people who were out of work were connected with the labour market. More fundamentally we ensured that when employees went into a job they were working in an environment where their contribution was respected and valued where they were encouraged to make a stronger contribution in the future where they were part of the business and where they could contribute to and make better opportunities for their own families and other workers.  
Kate Wilkinson said in her opening comments during the first reading debate tonight that this bill is not about taking away rights but that was exactly the opposite of the truth. This bill is only about taking away rights. In fact it even refers to section 67 of the Employment Relations Act which has provision in it for a probationary period. It is referred to as a trial period so in order to make this amendment look less foolish than it actually is—and by crikey that was a bit of a challenge—they have to take the word “trial” out of section 67 because otherwise it will be blindingly obvious even to the National backbench that we will have two trial periods in the same Act. As well as inserting the National Government’s term “trial period” they have to take the existing words “trial period” out of section 67 and then remove the rights that go with that current probationary period or trial period. It is even referred to as a trial period in section 67.  
We on this side of the House understand the issues that some people face in getting a job. We understand the issues that employers face when recruiting particularly for small businesses. They may not have the expertise or the additional resources required to go through a rigorous recruitment process. That is why section 67 is in the Act. That is why there is specific legislative provision for a probationary period where a person’s rights in the case of an unjustified dismissal are enshrined in legislation. But employees are clearly on trial during that probationary period. If employers do not know about it—and clearly the National backbench did not know about it—then the Minister of Labour now has it within her mandate to promote section 67 to ensure that it is used to give the solutions that she says are so apparent which no one else in the employer work force seems to be aware of. 
Taking away a worker’s rights particularly in this time of financial stress and insecurity is not just unnecessary but a cruel thing to do. There is no need to take away a worker’s employment rights when he or she is unjustifiably dismissed which is exactly when their employment rights go. So it appears that unjustified dismissal is OK if it is within the first 3 months of someone’s job. That is just ludicrous.  
I want to refer briefly to something one of the ACT contributors said and I regret deeply that I am not able to recall his name just at the moment. He mentioned that this side of the House was pretty negative about employers. I want to put on record a correction about that misunderstanding of our view. This is not about bad employers actually. This is about bad law that a small number of employers may be able to take advantage of. I am sure that the overwhelming majority of employers in New Zealand would like to recruit well would like to recruit the best person for the job and be able to do that within their resources and that the person turns out perfectly—but some do not despite everyone’s best efforts.  
I know that the overwhelming majority of employers not only want to but do treat their workforce more than fairly—in fact very well—in all sorts of areas that are outside their legislative requirements. But what this bill does is say that we are prepared to have bad law in our country. We are lowering the standard of fairness that we currently expect in our workplace. That is what the law requires at the moment. It requires a dismissal to be fair and this proposed amendment to the Employment Relations Act lowers the threshold to the point where it can be unjustified. In this bill an explanation for a dismissal does not even have to be given by the employer to the employee. One cannot get more discourteous than that. What does that do to a young worker—when he or she is sacked and does not even know why? How does that make a young Pacific worker from Maungakiekie feel about his or her future role in New Zealand society? I ask the member Sam Lotu-liga how his constituents would feel if that happened to them. That is what the law says.  
The law says that not only can they be unjustifiably dismissed but they do not even have to be given an explanation. But the Minister says that is OK because they agreed to it. It has to be an agreement between an employer and an employee. The choice for some workers is the choice between taking it or leaving it. If this is the law then those unscrupulous employers know that the law says it is all right for them to behave in that way. We are often criticised in this House for our standards of behaviour. I agree with the criticism on many occasions and I have been party to low standards of behaviour in this House as I am sure every single member—except the newbies who soon will—has been in the past. But we should not take that bad behaviour as an opportunity to pass bad law whereby unscrupulous employers—and there will be only a few—can say: “But Parliament said it is all right. Parliament said that this is acceptable practice.”  
I conclude by asking the Minister of Labour whether this bill is really what she wants on her record as being the first piece of legislation bearing her name as the Minister of Labour. I cannot imagine that any member would say in his or her their maiden speech: “I would be proud to have in my name legislation to remove the employment rights of 700000 workers for the first 3 months they are in their jobs.” Added to the list of broken promises and the shambles of the House of the last few days is $730 million over 5 years that low-paid workers have been jilted on and now they get to lose their employment rights. This will be a hard Christmas for many New Zealanders. 
PESETA SAM LOTU-IIGA (National—Maungakiekie) 
: 
 I am here to talk about the Employment Relations Amendment Bill. I do not wish to repeat what has already been stated by both sides of the House; I want to add my perspective as the member of Parliament for Maungakiekie. I am glad that the former Minister actually asked about the Pasifika worker in Maungakiekie because I have talked to hundreds of Pasifika workers in Maungakiekie. 
Darien Fenton 
: Which factories? 
PESETA SAM LOTU-IIGA 
: Sanitarium Coca-Cola—does the member want me to keep going? All right; I am happy to take any member from that side of the House to Maungakiekie not for a photo opportunity but to talk to the people—the people who voted for National by the way.  
I preface these statements by saying there has been a lot of talk about theory in this House. There has been a lot of talk about “the worker”. Well I can safely say that I have been one of those workers. I have been a worker who has spent 12 hours a day—even 12 hours a night—at UEB Industries and 12 hours a night at Deka and I am happy to show some of our fellow MPs what real work is about. We dealt with 30-kilogram rice sacks and 40-foot containers and I am happy to show my fellow members of Parliament what hard work is about.  
That is fine but I do not want to talk to members about myself. It is not about me; it is about the workers. I am happy that my Labour colleagues have asked about workers because the workers I talk to—the workers who are looking for opportunities currently the workers who are suffering after 9 years of Labour rule in this country—are saying to me that it is really about opportunity. It is about the opportunity to get a role in a business. It is about the opportunity for workers to at least be given the opportunity to prove themselves—to turn up to work and to give a good day’s work—and to get paid well. 
Hon Ruth Dyson 
: Do you know they are allowed to do that now? 
PESETA SAM LOTU-IIGA 
: They are but this bill is about employers who put funds into a business. I have been an employer as well and it is hard to put capital into a business and then have a relationship break down. Within the 3 months that— 
Hon Trevor Mallard 
: It’s not easy for workers either. 
PESETA SAM LOTU-IIGA 
: No it is not easy.  
Hon Trevor Mallard 
: So why write them off? Why abandon the workers? 
PESETA SAM LOTU-IIGA 
: Let me tell the member about a prisoner called Chris because I can point to real examples. It is not theory—there is no theory. Chris was in Paremoremo prison. I attended his parole hearing and we got him out. I went with him to interviews where he could not get a job. He had ticked the box that said “I am an ex-convict”. Employers just were not willing to take the risk.  
Hon Trevor Mallard 
: Did he ask for a trial? 
PESETA SAM LOTU-IIGA 
: I can speak only for Maungakiekie not Hutt South and employers in Maungakiekie have said: “If you give us a 90-day probation period then we’ll be able to make those investments in people.”  
Hon Trevor Mallard 
: Well you can do that under the law now. 
PESETA SAM LOTU-IIGA 
: Yes and that is fine. I will talk to members about Sione in Panmure which is supposedly heartland Labour. Sione was struggling to get a job. Sione could not pay for his kids’ Christmas presents. Sione was struggling and I said to him: “Come with me and let’s go and talk to some employers in the Panmure area.” It is really tough right now and this bill will allow young companies that do not have funds to take a risk to employ people they would not otherwise employ. 
Some members from the other side talked about hiring foreign workers. Last Friday afternoon I was in a clothing plant in Onehunga—and Onehunga is in Maungakiekie—and the employers there were saying that 90 percent of their workforce are foreign-born. Employers really are crying out for help but they cannot take a risk on employees who would come in but just maybe not be able to perform within 3 months. 
Hon Trevor Mallard 
: What’s the member saying? He’s not being consistent. 
PESETA SAM LOTU-IIGA 
: This is about choice. It really is. The employee and the employer will be able to agree on and sign a written agreement for a 90-day probation period. It really is about that. That is all I will say about the experiences I have had as an employee and as an employer. 
Funnily enough it is also about the experiences I have had with union members. On Saturday night I had the privilege of talking to a number of union members in my electorate. 
Darien Fenton 
: Did you? Who? 
PESETA SAM LOTU-IIGA 
: I am happy to name names. It happened to be the next president of the Labour Party Andrew Little and a number of his Amalgamated Engineering Printing and Manufacturing Union friends and I was happy to have that dialogue. 
Hon Trevor Mallard 
: He’s never been the president of our party. 
PESETA SAM LOTU-IIGA 
: He is the next president. I was happy to have the dialogue. We had a pleasant dialogue. He stated his case for why he disagreed with this bill and I stated my case. It was a pleasant dialogue. I still respect the man and that is what this democracy is about. This bill will improve the opportunities for working class people. That is what it is about. Mr Assistant Speaker I thank the House for its time.  
DARIEN FENTON (Labour) 
: 
 That was an interesting contribution from the member for Maungakiekie. May I tell him that I know many of the union members who work in Maungakiekie. In fact I have represented them for many many years; I can name them. There are the workers at Sanitarium who were prevented from joining the union for years and years and years; the workers from Coca-Cola who would not have a bar of this bill; and the workers from Pernod Ricard in his electorate. There are rest home workers cleaners and school cleaners and caretakers. Come on—this bill is another kick in the guts for workers. That is what it is; it is another Christmas present from the National - ACT - Maori Party Government to the workers of New Zealand—happy Christmas! First it was tax increases for low-paid workers. Then it was cuts to KiwiSaver. Now the recycled hand-me-down Wayne Mapp bill has been dredged up from the dark ages of Don Brash and his cohorts as some kind of economic silver bullet. Is the answer to New Zealand’s economic problems the ability to sack workers more easily? Hey come on! Is that what being ambitious for New Zealand means? Is that what John Key meant?  
The new Minister of Labour Kate Wilkinson is not ambitious. Now that she has got the ministerial warrant the BMW the big house and the huge pay increase she is showing how unambitious she is for New Zealand workers. The first thing she is doing in her job is cut workers’ rights and she is doing it under urgency. That is a disgrace. In the last Parliament Kate Wilkinson railed against urgency when Labour closed the KiwiSaver loophole—through a Supplementary Order Paper—which of course this bill opens up again. She said then very sanctimoniously that the amendment had not been subject to proper scrutiny. It had not been subject to consultation. It had not been subject to scrutiny by the Transport and Industrial Relations Committee. The public had not been permitted to submit on it and to give their views. She said: “It is a sad sad day for democracy in New Zealand.” and “This is a disgrace. It is a total abuse of process.” Well hello—it seems that it is a disgrace and an abuse of process when Labour tries to improve the rights of workers but when National ACT and the Maori Party want to take away the rights of workers it is not an abuse of process; it is just getting on with fixing the economic problems of the country. 
The Government is right about one thing. These issues were debated in the last Parliament via Wayne Mapp’s members bill but let us not forget that that bill was defeated. It was defeated when submitter after submitter—527 of them—came along and said no they did not want that in New Zealand. Workers marched and rallied in opposition to that bill. Perhaps that is why this bill is being rushed through under urgency. Perhaps it is because the National - ACT - Maori Party Government does not want to see workers rallying before Christmas. That would be embarrassing; it would remind New Zealanders of the real agenda of the Government they have elected. 
The Maori Party was forced to abandon its support for Wayne Mapp’s bill after it saw the opposition to it. It is good that the Maori Party is not supporting this bill but I say to the Maori Party that that is actually a pretty meaningless gesture because that party had a chance in its confidence and supply agreement with the National Party to make gains for workers. 
Te Ururoa Flavell 
: Oh come on. 
DARIEN FENTON 
: Yes it did. It could have ensured that this bill never again saw the light of day. So I am not that impressed with the Maori Party’s opposition especially after yesterday when it voted for tax increases for low-paid workers and KiwiSaver cuts for the same workers. 
What is so offensive are the excuses for this bill—that the young the brown the women the imprisoned and the migrants will be better off because they are so hopeless they do not deserve the same rights as other workers and because it will be even easier to sack those people employers will very kindly take a risk on giving them a job. The workers I have talked to are very offended by that. For example the Filipino workers’ group says that this bill will open the door to further exploitation of vulnerable migrant workers and that it has nothing to do with improving their job opportunities. Vulnerable workers often have a limited knowledge of workplace rights and work in workplaces like restaurants rest homes shops and cleaning services. Many of the jobs done by the Pacific people the member opposite was referring to are in the myriad of other small firms throughout New Zealand and those people are not in a position to agree or disagree on a trial period without rights. Have the members opposite not heard of “Take it or leave it!”? Workers are told: “Here you go; if you want the job you sign up to it or you do not have the job.” That is how it works; that is what members will see. 
I thought a fundamental human right was equality before the law. I thought that that was what we stood up for in this country. Yesterday was the 60th anniversary of human rights and equality is a fundamental human right. But this bill creates an underclass of workers in an area where rights are probably much more vital. Small workplaces often have very inexperienced managers and supervisors they have high turnover the workers are low paid and the jobs can be high stress. In such a situation instead of trying to sort things out with probationary employees and instead of trying to give workers a genuine go managers who are busy will say: “Off you go down the road. It is too hard.” Under this bill all those managers will have to do is call it unjustified dismissal. 
I know there is provision for mediation but it is meaningless. It means nothing. It is a talkfest; it goes nowhere. The worker has no rights with that. The other excuse that we have heard for this bill is that every other OECD country has probationary provisions. Yes they do but so does New Zealand. The members opposite should look at those other countries because workers in those countries have many other rights that New Zealanders do not have. For example they still get penal rates weekend rates redundancy pay and overtime pay. I am looking forward to members opposite proposing that we should have minimum redundancy as indeed Labour was proposing in its policy.  
I am still waiting—and we all are—to hear more about the Government’s Restart relief package to help those workers hit by redundancy. In his speech Mr Key said that this package will be carefully targeted and designed to help people who have worked hard and have big aspirations for the future but who will through no fault of their own be coping with a big financial blow. If a worker has been through a 90-day process and has been sacked would that worker qualify as having worked hard? If the worker is sacked is it through any fault of his or her own? I say to the Minister that I would genuinely like to know the answer to that question. Do these workers qualify as having big aspirations for the future? Will they get relief or will they be consigned to looking for another job on a 90-day cycle and on a hopeless spiral to the bottom? 
We on this side of the House are very opposed to the bill and we have outlined that. It is taking away workers’ economic livelihood which should never be done lightly or unfairly. Being sacked unfairly impacts on workers. It impacts on their families their confidence and their future employment prospects. What does a worker in this situation say to their next employer at an interview? “Oh sorry I got sacked but it is only because of the 90-day probation bill so it wasn’t really being sacked; it wasn’t really unfair.” Or do they have to sign up for yet another 90-day cycle for the next period for the next after that—and on it goes. 
Sue Bradford raised some important questions. She referred to page 9 of the explanatory note and the real agenda of the National Party which is to extend this provision to all other workers after review. That is in the fine print but there is also more to come. We know what the National Party’s agenda is. It wants to have non-union collective agreements restrict unions’ access to rights cash up the 4 weeks’ leave review the Holidays Act and privatise accident compensation. Let no one have any doubt that this is the first shot in an ongoing attack on New Zealand workers. To the Minister I say “nice one!”.  
JOHN HAYES (National—Wairarapa) 
: 
 I have listened to nonsense all afternoon including some from that member who just sat down. You see when one looks down one end of a telescope one forgets that there is another end. When one looks down a telescope one notices a view. But if one goes to the other end of the telescope and looks down one gets a different view. Those members on the other side of the Chamber who were rejected by the people of this country—who were thrown out and pushed on to the Opposition benches—cannot take it. They do not like it. The people on that side of the Chamber are not considering the perspective that first of all under the existing law of this country any employer who wants to remove a staff member finds that it costs tens of thousand of dollars.  
In my Wairarapa electorate when farmers employ new staff give people a break and bring them into their house they may then find after some weeks that the person they thought they had is not quite the person they actually have and they may want to end the arrangement. So they go to their lawyer and what does the lawyer say? The lawyer says “Look do not challenge this personal grievance. Just write the cheque out.” For a beef and sheep farmer in hill country with big debt the $20000 cheque is far too much.  
In this country we are moving into some very difficult circumstances and I tell Mr Cullen that it was caused in part by the previous Government’s overspending. It was also caused in part by the international environment and it is acknowledged that in this country right now we are heading into higher unemployment figures. In that context we need to give every opportunity for people to be employed. Allowing employers particularly of businesses that employ fewer than 20 people to move into a no-blame arrangement for 90 days will encourage people to take up jobs and it will encourage employers to give people jobs.  
I heard on television tonight the suggestion that my colleague Anne Tolley should be lined up on the question of schoolteachers. One just has to think about the Ministry of Education as an employer; it employs many more than 20 people so its employees will not be affected. A lot of fear is being spread by Darien Fenton and her colleagues and it is completely unrealistic.  
This legislation is good for employers in the Wairarapa and it is good for employees because many more people will find real work opportunities as a result of it. I commend the Minister of Labour very highly on it. 
Hon Dr MICHAEL CULLEN (Labour) 
: 
 That speech clearly exhausted the member. He can retire into somnolence for the remainder of this sitting running through into Saturday—but I always appreciate his Charles Laughton imitations in this Chamber.  
Why is the Employment Relations Amendment Bill in front of us under urgency at the present time? The obvious answer from the Labour perspective is to say this is some deep-dyed plot whereby the National Party is in cahoots with Business New Zealand to ram it through. The problem with that theory is quite simple: Business New Zealand is opposed to ramming this bill through the House. The Council of Trade Unions is opposed to it Business New Zealand is opposed to it—that is the trade unions and the employers—but the National Government is in favour of it all by itself. Nobody else is in favour of ramming the bill through; the Human Rights Commission is opposed to ramming it through. It is being rammed through for a simple reason: Mr Key said before the election there would be 100 days of action. At the Business Committee on Tuesday even Mr Brownlee did not know what the 100 days of action was going to be. There had to be something in it and the National members have made up what is in the 100 days of action.  
So we have this bill a bill that could be passed at any time in the next few months and could go to a select committee; an education bill on something that could be done by regulation and does not even require a bill at all; and two law and order bills that could go to a select committee and do not require to be done immediately. The only things that had to be done quickly were the tax changes because they come in on 1 April and there was a need to have a period of time before they come into force. This bill is about cosmetics and on looking at the opposite side of the Chamber one can see the need for the cosmetics. Indeed today I walked into one of the men’s toilets in the area frequently occupied by National members opened a shoe box to look for the shoe polish and found a huge pot of Shiseido face powder. Clearly a lot of people on the opposite side of the Chamber have been using a lot of cosmetics over the recent past.  
Where did the notion of 100 days come from? What is the historic origin of the term “the Hundred Days”? The trouble with being a historian as I am by profession is that sometimes one knows things one does not really want to know. The term “the Hundred Days” comes from Napoleon. The time between the escape from Elba to the Battle of Waterloo was the Hundred Days. I have bad news for the National Party: Napoleon lost the Battle of Waterloo. National’s use of the term “100 days” is not a good idea given the historical precedent. I advise National members to forget about it.  
What is the real purpose of this bill? Well it is not clear at all. We are told it is to encourage employment. Let me adopt a question I used in the KiwiSaver debate. What assumptions are being built into the Half Year Economic and Fiscal Update that will reduce the projections for unemployment as a consequence of the passage of this legislation? Is officialdom convinced is Treasury convinced that a single extra net job will be created as a result of this bill rather than the recycling of some people on a 90-day basis through one job which counts as one job?  
John Hayes 
: No it won’t happen. 
Hon Dr MICHAEL CULLEN 
: If it will not happen what is the point of the bill? If as Mr Hayes says it will not happen that people will be recycled through a job then why is this bill supposed to be a centrepiece of the National Party’s policy when it will have no effect? 
John Hayes 
: It will have an effect. 
Hon Dr MICHAEL CULLEN 
: It will have an effect but it will not happen! There is a whole new kind of physics emerging here within National—something quite interesting is emerging in terms of National’s view about the future.  
This measure was not in the Speech from the Throne. It was never a centrepiece of the National Party’s policy announced to the public at large during the election campaign. National members went around business groups and it was whispered quietly that there would be a 90-day probationary clause. The bill does not actually create a 90-day probationary clause because the current Act provides for probationary clauses in employment agreements. The employee and the employer can agree to a probationary clause but the employee’s personal rights remain under it. 
Hon Trevor Mallard 
: Can they be longer? 
Hon Dr MICHAEL CULLEN 
: Yes the periods can be longer or shorter than 90 days. Actually the current law is more flexible about probationary clauses. They can be for 60 days 90 days 120 days or 3 years—like Mr Key who is on a probationary clause for 3 years. At the end of that time his employer may well decide not to renew that particular contract. After 27 years or a little bit longer than that my employers are probably deciding not to renew mine. There can be very long probationary clauses.  
The argument was also put forward that Labour does not like employers. I have gone through the list and I have found that probably more people on this side than on the other side of the House have been employers. Mr Hide for example has been employed by the State all his life in one form or another. 
Hon Member 
: Or by Alan Gibbs. 
Hon Dr MICHAEL CULLEN 
: That is right and sometimes simultaneously in fact; Alan Gibbs and the State have employed Mr Hide. But the real problem is that the National Party does not understand industrial relations. There is a Gresham’s law about industrial relations which those members need to understand. Particularly when the country is in a period of low economic growth as we are this year and will be next year—and probably the year after that we will have pretty low economic growth as well—Gresham’s law applies. Gresham’s law is the law that bad money drives out good. It said debased coinage would drive out un-debased coinage in the old days when coinage meant something in that regard.  
Unfortunately in areas like the service industries—but not in high-tech industries which are a different kind of world—that employ unskilled or semi-skilled labour a Gresham’s law of industrial relations does apply. If one employer can employ people at a much cheaper rate and on reduced terms compared with another employer the other employer’s labour costs are a higher proportion of the total cost of the business. In that respect employers who are trying to provide decent conditions sooner or later tend to be forced to reduce their conditions as well in order to compete with the bad employers. That is why we have to have industrial relations law. If all employers were good and everybody acted properly we would not need to have industrial relations law at all. It could simply be a matter of having individual contracts between employers and employees—individual arrangements.  
Industrial relations law is there to provide a proper framework because unfortunately as always people are prone to sin in some form or another. The people being exposed to that will be disproportionately Maori and disproportionately Pasifika. That is what will happen in this case because the service industries are disproportionately staffed by those people and they also disproportionately employ women compared with men. So Government members should not tell us the issue is about Labour failing to trust employers. Employers are like any other group of people: there are good people average people and bad people. The problem is that in these kinds of areas and in those kinds of industries—as I say not in the high-tech industries not in the professions and not in the managerial sectors by and large—bad employers’ practices tend to drive out good employers’ practices because that is the nature of competition within those kinds of businesses. So this measure will not work.  
The other point that the Government needs to bear in mind is what one might call the doctrine of unintended consequences which is a pretty important and powerful doctrine to always bear in mind. I remember that I led the then Labour Opposition in the second reading debate on the Employment Contracts Bill because Helen Clark was overseas. The Employment Contracts Bill had two prime aims. It was there in part to destroy much of the trade union movement and after it was enacted it succeeded in that; and it was there in part to destroy working conditions and wages. It was intended to lower the base of working conditions and wages and adopt a low-wage path to economic growth. In that the Employment Contracts Act succeeded; it certainly did that. But it also had unintended consequences. The whole personal grievance industry which both the National Party and employers moaned more and more about as the decade progressed was very largely a creation of that Act. Employees could really rely upon only the legal system and the taking of personal grievances to protect themselves. Employment cases that were previously sorted out between the union and the employer and satisfactorily resolved at minimal cost to both parties became more and more a focus of personal grievances. Under the Employment Relations Act the tide has been pushed out on the personal grievance industry. It has moved back in the opposite direction to some extent.  
People will find a way round this law—those who can. Those who can afford to get a lawyer will find a way round this law. There will be enough loopholes in it for clever lawyers and judges who believe that the Government has gone too far. They will do exactly what they did with regard to the Employment Contracts Act. They will lead in the opposite direction and say to the Government: “We believe you’ve gone too far. Therefore we will create further opportunities somewhere else within the legal system to counteract as best as possible the effects of what you are doing that we don’t agree with.” This bill will create uncertainty; it will create further costs for employers. It will not create new employment.  
A party vote was called for on the question  
That the Employment Relations Amendment Bill be now read a second time. 
Ayes 63 
New Zealand National 57; ACT New Zealand 5; United Future 1. 
Noes 55 
New Zealand Labour 43; Green Party 6; Maori Party 5; Progressive 1. 
Bill read a second time. 
In Committee 
Part 1 Preliminary provisions 
Hon TREVOR MALLARD (Labour—Hutt South) 
: 
 I ask the Committee for a little tolerance and leeway during the initial speech on Part 1 to indicate the overall thrust of the Opposition in the Committee stage in order to draw the attention of the Committee to some amendments. Some are in Part 2 but in order to make sure that people are aware of them they are on the Table; we have done that as quickly as we can.  
The first amendment which is in my name makes it clear that mediation will be available even to people who are no longer employees—people who have been dismissed—because as the bill is drafted it applies only to people who are employees. Of course once one has got the sack one is no longer an employee and the mediation promised by the Minister would not apply. The second amendment is the one supported by Anne Tolley on YouTube—it was widely circulated—which makes it clear that people within schools are exempted from this. 
Hon Anne Tolley 
: Stop making it up. 
Hon TREVOR MALLARD 
: The member should look at herself on video and just continue to tell the truth.  
The third amendment makes it clear—again picking up the commitment given by the Minister of Labour—that employers are not allowed to dictate that people are to have these trial periods; it has to be a matter of agreement. So if it is a requirement of employment by an employer it will void that clause. That will provide new subsection (4A) for new section 67A which makes it clear that a trial provision as a requirement is something that will be voided and will cause it not to take effect.  
Another amendment is a requirement to put notice of termination in writing. That is relatively simple and something I think any reasonable person would support.  
The next proposal puts some pretty limited requirements on employers before the removal of personal grievance rights applies. That one requires the employer to set out in writing any concerns that could result in the employment being terminated and the behaviour required by the employee to address those concerns and provides a reasonable time for people to perform according to that written notice.  
The last amendment makes it clear that the probation period applies to a position rather than a particular individual. That makes it clear that the trial provision must be fully disclosed in any position description or material seeking applicants for the position and it cannot be subsequently added to the employment description or any subsequent employment agreement.  
With this series of amendments we have attempted to encapsulate the commitments that have been made by the National Party in their description of this bill. I think the amendments could well be described as the “keep Kate honest” clauses for six of them; the seventh one is the “keep the Minister of Education honest” clause. Here we are attempting to be helpful to the Government to make sure that it has good legislation—it will never be good but at least it will be designed to do what it said it would. We think that these are minimal changes that would have occurred if in fact the bill had gone to select committee.  
I am obliged to tell the Minister of Labour that we will be opposing the bill and every clause in it at every opportunity we have between here and Saturday or next week if we have the opportunity. 
Hon Member 
: Make it next Saturday! 
Hon TREVOR MALLARD 
: We are not going to be here Saturday? Oh I thank the member! When are we leaving? Can we get our flights booked? When will National throw in the towel? Friday—it will throw in the towel on Friday. That is good; we will all change our bookings. I will get the taxi booked for Friday and not for Saturday as would otherwise have been the case.  
I go now to Part 1 in more specific detail—and I thank you Mr Chairman for your tolerance of me working slightly outside Part 1 in the first 5 minutes but I think now we should come back to the bill and in particular Part 1 of the bill. I should say next that National indicated during the campaign and before the campaign—and I remember Kate Wilkinson at the Backbencher the day she earned the “KiwiSaver Kate” moniker indicating this—that National would keep the Employment Relations Act but it would make significant changes to it. She is right. This is one of the very significant changes that has been proposed and I am wondering whether it would in fact be appropriate to rename the Act as a result of the approach she has taken.  
It is certainly not an Employment Relations Act; it is an “Employment Relations Destruction Act” or something similar as a result of this change. The purpose of the Act is “to provide when an employment agreement may specify a trial period of 90 days or less” but we all know that this can already happen. We all know that it does happen. We had pleas from National on behalf of the ex-prisoner population of New Zealand—which I thought was interesting from National—for trial periods. I think just about everyone on this side of the Chamber knows that lots and lots of former prisoners have trial periods. Often when employers want to take on or look at ex-prisoners they will agree to have a trial period. Some of those trial periods actually occur while they are still prisoners. That is an interesting arrangement. It happens quite often in the Hutt Valley and the Hutt Valley is better off for it because in an area of labour shortage—at least up until recently rural labour shortage—it means that people come out have their trial periods and at the end of their prison sentence they quite often go into full-time employment having already had what is effectively a probation period. They often still have a probation period from the other perspective as well; I think that is important.  
The other part addressed in the “Purpose” clause is the changes to the Employment Relations (Breaks Infant Feeding and Other Matters) Amendment Act 2008 relating to KiwiSaver. I want to make it clear that this is the companion measure to the shocking thing that occurred yesterday where as workers get a wage increase employers are allowed to take the employer’s contribution to KiwiSaver out of the wage increase that is going to the worker. 
Hon Parekura Horomia 
: Unbelievable! 
Hon TREVOR MALLARD 
: Well it is just unfair and it is unreasonable. When I had discussions with some of the very big employers in New Zealand who were contemplating doing this in the period before the election and before we passed the legislation when they looked at the question every single one of them backed off. Every single one of them accepted that it was not fair. Every single one of them saw that it was wrong. But a lot of them saw that if they took that negative backward approach what would happen in the future—and I think it is almost inevitable now—is an approach that looks more like an Australian one where the 9 percent is a strict employer contribution and there can be no question of trade-off at all. I think if National goes down this route—and from yesterday it is clear it wants to go down that route—we will end up with something that is not a shared responsibility between the taxpayer the employer and the employee; it will go on to the employer completely. I think that would be regrettable because I think the current cooperative arrangement—although I note that “cooperative” is something that is now on the proscribed list for Cabinet papers! National has put out a list of words that are not allowed in— 
The CHAIRPERSON (Lindsay Tisch) 
: I call David Bennett. 
DAVID BENNETT (National—Hamilton East) 
: 
 Today we are discussing the Employment Relations Amendment Bill a bill that has actually been through a select committee process in very recent history.  
Hon Members 
: No it hasn’t! 
DAVID BENNETT 
: It has. Members of the Transport and Industrial Relations Committee will know they debated this bill a short period of time ago. We took on board a great deal of public input in the sense that some of the changes that members actually see in this bill in comparison with the original member’s bill were influenced by changes brought about at the select committee. 
One of those changes is the requirement that the measure applies only to businesses with up to 20 employees. Basically this bill applies to small businesses and the whole heart of this legislation is to make it easier for small businesses to take on new employees. Is there anything wrong in our society in our communities and in our corporate world in letting small business have the opportunity to take on new people? Apparently from the Labour Party’s perspective there is a problem with that. Labour members will engage in all the fear tactics that they have to try to persuade people that this bill is not in the best interests of New Zealanders especially people wanting to get a job and especially small-business owners who want to take on people. 
A small business does not have the infrastructure behind it that a large business has. It does not have the ability necessarily to take advantage of the current statutory ability to have a trial period. Small-business owners want a much more resilient approach which takes into account the nature of their businesses and the way that they have to run their businesses. They do not have a big professional development team around them; they need legislation that is suitable for their environment. This legislation provides that suitability; it provides an avenue for small employers to go out there into the market and take on people they might not otherwise have taken on. 
So it is not correct for Labour members to come here and say that this legislation has not been debated in public. It has. It was consulted on in a period of time close to the election. It was consulted on through the select committee process in the last parliamentary term. In that process we came to some extraordinary conclusions. Many people—whether employers or employees—submitted that they thought there was a real need for this legislation. In case after case people came before the select committee to say that they wanted legislation like this because it would give them a chance to get a job. Migrants came and said they needed legislation like this to give them an opportunity and employers said it as well. This legislation has been debated and it is in the best interests of New Zealand employers and employees.  
Hon PHIL GOFF (Leader of the Opposition) 
: 
 Because of this Government’s absolute determination to deny a select committee the chance to subject this bill to scrutiny and the public to make submissions Labour members expect that this will be a long Committee stage and we expect that the Minister of Labour will take the call to answer the questions put to her. She has to be accountable; she is not paid $240000 a year to sit in the chair dumbly and not answer questions. I want to put a series of questions to the Minister. I hope she makes a note of them and I hope she answers in full because this is the country’s only opportunity to get answers from this Minister and this Government. 
The first question I have for the Minister is this. She said in the first reading that this bill was not about taking away rights. I refer her to Part 1 which we are now debating. The explanatory note states that the purpose of this bill is to enable employers during an employee’s first 90 days to “dismiss an employee without the employee being able to bring a personal grievance or legal proceedings in respect of the dismissal”. The Minister said it was not about taking away rights but the part we are debating explicitly says that an employee in his or her first 90 days can be sacked for any reason without having the redress of a personal grievance procedure or being able to take a case to the Employment Court. That redress I put it to you Minister is a fundamental right for workers. It is fundamental because there is nothing more important to most people than their security of employment—holding on to their jobs. Their jobs are their way of earning a living and having the protection that they cannot be sacked for illegitimate unfair and wrong reasons is a fundamental right. So I want you Minister to justify to this Committee why you say this bill does not remove rights. 
The CHAIRPERSON (Lindsay Tisch) 
: The member knows he cannot use the word “you” and from now on I make it very clear that the word “you” cannot be used in this debate.  
Hon PHIL GOFF 
: I accept your ruling Mr Chairman. I want the Minister to answer the question as to why she misled this House by saying this bill was not about the removal of rights when this part that we are debating now patently demonstrates in black and white that this bill takes away one of the most fundamental rights and protections that any worker has. Why should any worker be subject to dismissal for unfair and invalid reasons and not have redress for that? If that is not taking away a right I would like to know what it is. It seems clear to everyone that the Minister has misled the House with her initial claim. Then she said that this bill was a moderate bill to protect the rights of workers. How does one protect the rights of workers by denying their ability to take a personal grievance if the boss sacks them for invalid reasons? That is fundamental. 
I would like to ask the Minister a second question. We know that this bill will not come into effect until 1 April next year—1 April 2009. That being the case will the Minister explain to the Committee why a bill that is so controversial a bill that denies people basic rights cannot go to a select committee? 
The third question is whether the Minister accepts that a whole range of critical stakeholders in this legislation have protested about the denial of their right to have an input into it. The Minister knows who those stakeholders are. They are groups like the engineers union the Council of Trade Unions FinSec the Association of Salaried Medical Specialists and even Business New Zealand which said that this was an improper process. I want to know from the Minister why she thinks it is acceptable that legislation of this nature cannot be commented on by stakeholders who have a vital interest in it. I want the Minister to tell the Committee of one other example in the last decade of legislation that strips people of fundamental rights not having gone to a select committee—one piece of legislation in the last decade or even going back to 1951. I want the Minister to explain to the Committee what the precedent is for introducing legislation as dramatically bad as this—in that it takes away rights—and denying the people who lose those rights the chance to comment on it at a select committee. If this bill is not to come into effect until 1 April what excuse does the Minister have for denying a select committee the right to subject it to proper scrutiny? 
I want to know next from the Minister whether she accepts the argument of the human rights commissioner who said that rushed legislation is potentially risky legislation. I would like the Minister to tell this Committee whether this legislation is rushed. If it is not rushed— 
Dr Jackie Blue 
: No. 
Hon PHIL GOFF 
: Anne Tolley says that it is not rushed. Well maybe Anne Tolley can tell this House why it is—I am sorry; it was Jackie Blue. Oh the brunettes all look alike to me. If this legislation was not rushed I want Jackie Blue to explain for her Minister why this House was not given a copy of it until 11.45 p.m. last night. If it was not rushed and it had been prepared long ago why were the public the news media and members of this House not given access to it? It was because Government members were so ashamed of it that they did not believe that it could stand up to public scrutiny—they did not want anyone to see it. That might explain why it has not gone to a select committee. That seems to me to be a logical reason. But I also suspect looking at the officials that this bill has just been drafted. It is hot off the press. It was produced in haste and there are bound to be mistakes in it. 
Everybody in this House knows that the whole purpose of taking a bill to a select committee is to give the select committee members the chance to subject it to proper scrutiny. Almost all legislation that goes through this House goes through a select committee. The select committee system is a fundamental safeguard of the democratic rights of the members of this House and of the country. Yet at the moment we are seeing bill after bill after bill that is not urgent that is not needed and that is not coming into effect for months not going through the select committee process. I want the Minister to tell us why this new Government is so arrogant that it can bring all of these bills—in particular this bill—to the House rush them through not give anybody the chance to comment on them and not put them through the scrutiny of a select committee. 
We have heard no answers to those questions Mr Chair. I put it to you—and I am putting it to you Mr Chair so I can say that—that this is the only chance we have to get accountability from the Minister and I hope that you can exercise your powers to ensure that the Minister addresses and answers those questions. We do not want to sit here and ask questions that are purely rhetorical because the Minister sits dumbly in her chair and does not answer them. I expect to get full answers to those questions. We have put the questions clearly. Why did the Minister tell this House that there was no removal of rights and that this bill was about protecting rights when this part says exactly the opposite? Why when such an important right is being taken away is no select committee hearing being held on this legislation? Earlier I heard members say “Oh there was a member’s bill. Mr Mapp had a member’s bill.” That was a member’s bill not a Government bill. There was no expectation on the part of the public that Mr Mapp’s bill would go through the House. This is a Government bill there is majority support for it and therefore New Zealanders must have the right to have their voice heard on it. Why is the Government running scared and not allowing that to happen? 
CAROL BEAUMONT (Labour) 
: 
 This bill is wrong both in process and in substance. If it is so urgent we have to ask why it was not identified as part of the 100-day programme and was not outlined in the Speech from the Throne. It seems to me that the only answer to that question is that the Government is trying to get it through quickly so that people might forget about it over Christmas. They will not have had the chance to speak on it and when they see the consequences of it it will be too late. 
In essence this bill is about removing workers’ rights. It allows workers to be sacked for no good reason. It would allow employers to sack somebody because they wanted to replace him or her with somebody else. It would allow employers to sack somebody because they did not like that person or did not like something about him or her. It does not even have to be rational; it can be for any reason at all. This bill removes the worker’s right to seek redress for unfair dismissal. I remind the other side that workers are people. They are not commodities. They are people who have feelings who have financial obligations. This goes against core New Zealand values; it goes against values like fairness and the belief in natural justice. 
Who will be most likely to suffer under this bill? I can tell members—and the Human Right Commission obviously shares this concern—that it will be young people. I wonder how members on the other side of the Chamber would feel if their child or grandchild were sacked because an employer did not like the look of him or her on any given day. It will be young people it will be lower-skilled workers it will be new migrants it will be Maori workers and it will be Pasifika workers; they will be the people who suffer as a consequence of this bill. 
This bill is particularly cruel and particularly cynical in the current economic climate. There is already a great deal of insecurity. People are worried about unemployment—we all are. This bill reminds me of the cynicism and cruelty of the National Government in the 1990s; it also attacked workers and stripped away their rights in a time of high unemployment. People will be less likely to raise issues with their employers less likely to question things if they believe that their employers have the right to sack them for no reason. 
The point about there being a choice is absolutely laughable. In the case of most people—especially those whom I have outlined who feature in high unemployment statistics—it is absolutely laughable to think that when they get a new job they will turn round and say “Oh I am sorry but I will not accept it with that provision.” You talk about this side of the House not having a view of the real world; well actually we do. 
The other thing that I would like to say is that Government members believe that you are talking about a more— 
The CHAIRPERSON (Lindsay Tisch) 
: I have explained before that you cannot bring the Chair into the debate so do not use the word “you”. 
CAROL BEAUMONT 
: I am sorry about that Chair. 
Hon Member 
: Chair? 
CAROL BEAUMONT 
: He is the Chair actually I believe. 
The Government members talk about a more productive economy. Well one thing that I can say to the other side of the House is that more productive work places will not be obtained where workers’ rights are stripped away. More productivity will be obtained in workplaces where there are decent rights where workers feel free to have a say and where they are respected and valued and their opinions are respected and valued. The Employment Relations Amendment Bill does not create that sort of workplace. 
Finally I say that this bill is addressing a perception rather than a real problem. As an adviser to the Small Business Advisory Group I can assure members that I have discussed it extensively with small businesses. [ 
Interruption 
] I have discussed it with the Small Business Advisory Group; do those members think it does not represent small business? If members had read its report they would have seen that the recommendation in it argued for— 
Hon PHIL GOFF (Leader of the Opposition) 
: 
 I raise a point of order Mr Chairperson. Five calls have been taken by the Opposition now and a series of questions have been put to the Minister of Labour. The Minister is failing to answer any of those questions—failing to take the call. My question to you Mr Chair is whether you will take that into account in terms of the length of time that you allow this debate to go on for. I put it to you Mr Chair that this is a very special situation. Normally the select committee would have hours to go over this bill to cross-examine officials to ask questions to get answers. We have only the period of time that is available in the Committee of the whole House. Therefore it is essential that the Minister rises to her feet and answers the questions; otherwise this process frankly Mr Chair is a farce. I am sure that you are committed to ensuring that this House does take this matter seriously and that the Minister is accountable—and she is accountable given her position. 
Hon BILL ENGLISH (Deputy Prime Minister) 
: 
 I am sure that the member who was having trouble using the correct terminology despite days of being corrected by the Chair—I think it is because he is just so excited—knows that how long the debate goes on is totally at the discretion of the Chair. Actually it is not right for the Opposition to try to put pressure on the Chair over the way that the debate is being conducted. The Chair is running this debate not the fresh new Leader of the Opposition who cannot remember to stop bringing the Chair into the debate. Mr Chairman my advice to you is to stick to the Standing Orders and to your traditional and conventional role in running the debate. 
Hon TREVOR MALLARD (Labour—Hutt South) 
: 
 Mr Chairman I am somewhat surprised that you did not interrupt the new Deputy Prime Minister during those comments because he clearly went outside what has been raised. You were I think quite properly asked by the Leader of the Opposition for a ruling. There is precedent in this area and I am sure you are being advised on the precedent for setting the length of debates in the Committee stage; it involves the nature of the debate and also whether the bill has been to a select committee. Having said that I want to say that this part of the bill is not the significant part; the next part is the significant part and we will get on to it at some stage either later tonight or tomorrow morning. But Mr Chairman I think that the ruling you are being asked to make is whether the Minister’s declining to take a call to answer questions is a factor to be taken into account in your deciding the length of the debate on Part 1. 
The CHAIRPERSON (Lindsay Tisch) 
: Thank you Mr Mallard. These are not points of order. The Minister has the discretion to take a call when she feels that she wants to. The second point is that the length of the debate is determined by the Chair and I will take into account all relevant factors in deciding when the debate will come to a close. 
Hon TREVOR MALLARD (Labour—Hutt South) 
: 
 I raise a point of order Mr Chairperson.  
The CHAIRPERSON (Lindsay Tisch) 
: Is this a new point of order? 
Hon TREVOR MALLARD 
: Well it is related to the last one. 
Hon Members 
: That’s not good enough. 
Hon TREVOR MALLARD 
: Well I am not going to tell the Chair that it is unrelated when it is not but it is a new question. 
The CHAIRPERSON (Lindsay Tisch) 
: Is this a new point of order? 
Hon TREVOR MALLARD 
: Well it is asking you for an elucidation on the comments you just made. 
Hon Tau Henare 
: He’s challenging your ruling. 
Hon TREVOR MALLARD 
: No Mr Chairman I am not challenging your ruling at all. 
The CHAIRPERSON (Lindsay Tisch) 
: We are moving on. 
Hon TREVOR MALLARD (Labour—Hutt South) 
: 
 I raise a point of order Mr Chairperson. My request to you is to answer the question that was being asked—that is whether the Minister’s not taking a call is one of the factors that you take into account. You said that you have discretion and members in the Chamber have an absolute right to ask you what factors you take into account as you exercise your discretion. I am not arguing about whether it is your right to have discretion in determining the length of the debate. I accept that it is entirely up to you. But we also have rights as members to understand how your discretion is being exercised. That was the request that the Leader of the Opposition made and I think it was something that was quite reasonably asked. 
Hon BILL ENGLISH (Deputy Prime Minister) 
: 
 Of course the member is wrong. The Chair is free to shorten the debate if he does not like the colour of the tie of the next speaker who is taking the call. That is the definition of discretion. There are conventions about repetition and about having had a full debate and the Chairs of the Committee stage debates in the last few days have been very liberal—in my view far too liberal—in how broad they have allowed the Committee stage debates to run. It is getting close to being out of order for a member to try to put pressure on the Chair to explain the reasons for the decisions that are made. We all know that in the end either the Chair or the Speaker makes a decision and makes it for reasons that are fit and proper to his or her office and we accept it. I hope the Opposition is not embarking on a tactic of trying to pressure the Chair continually in that way. 
The CHAIRPERSON (Lindsay Tisch) 
: There is nothing to rule on. There has not been a closure motion. If there is one then I will take into account at the time whether all relevant information has been supplied.  
DARIEN FENTON (Labour) 
: 
 I rise tonight to speak to Part 1 particularly to the purpose clause and to outline our opposition to this bill. Basically it is unfair. I was one of the members of the Transport and Industrial Relations Committee that considered the Wayne Mapp - Don Brash - Kate Wilkinson bill—the “Get the Sack in 90 Days Bill”—and I am very familiar with the arguments that went on through that process so I do not accept the argument that this bill has already been debated. I am familiar with the arguments yet I have found a whole lot of new arguments in this bill and a whole lot of new questions.  
You know I do not understand why it matters how long an employee has been in employment. What is the difference between having 20 employees and having 21 employees for example? I ask the Minister in the chair the Hon Kate Wilkinson why this particular figure has been created. Why did she pick the figure of 20 people? I would like to hear an explanation for that as workers cannot do anything about the size of the firm they work for. They do not have any choice. If they want to go and get a job they do not go and ask employers whether they have 20 workers 15 workers 10 workers or 21 workers. And what is so different about a workplace that has 21 workers versus 19? My question to the Minister is how the staff will be counted. Will the number include part-timers contractors temporary or casual workers? Will it be fulltime-equivalents and what will count as a separate business?  
I ask how the Minister will make sure that employers do not create separate businesses to be able to take advantage of and exploit workers under this proposed bill. What happens if the workplace had fewer than 20 workers when they were employed and then when the workers started the number went up to 23? I ask what happens where the employer employs 21 workers and sacks two of them at once. Will one worker be able to take a personal grievance and the other one not be able to? I would like to know the answers to those questions.  
I would also like some answers to questions relating to the purpose in Part 1. Why does the Minister not think it is already hard enough when new workers start a new job? They have to learn new tasks and new routines and they have to remember new information. They have to adjust to new hours they have to adjust their family to the situation and they have to make arrangements with their families to fit around their needs. It is a big deal starting their new job and I want to know from the Minister why she thinks it is fair enough just to say to the worker that he or she has 90 days and can make all his or her arrangements but it is kind of tough at the end of it because if the employer decides that he or she does not want the worker—the face does not fit—well tough.  
I also want to know the Minister’s answer to the question of what will happen in the 90-day period if the worker gets the sack because he or she raises a health and safety issue. I know that the answer will be that the law provides for this scenario but most workers will not raise those issues in the first 90 days nor will they say that they would like to join the union and ask for a union form because it is too dangerous. Why would they do that? No they will keep their heads down. I ask how this helps us to engage and to build productive workplaces when livelihoods are on the line.  
I also have not heard a satisfactory explanation from the Minister as to why the current probationary periods do not work. We do have them. We have already pointed out that we currently have probationary periods. The only thing that I have heard is that it is just too difficult and that it costs a bit.  
I heard the member from ACT talking about his time as an employment lawyer and one of the things we looked at during the select committee process was lawyers and advocates conducting personal grievance claims. What we looked at was lawyers and advocates conducting personal grievance claims—in other words the ambulance-chasers who were the “no win no fee” advocates. It sounds like that is what that member was and I say good on him for being honest about it. But we asked the Department of Labour to look at it and to do some research because there is more of a perceived problem than an actual problem. I think that the member said that the number of workers employed under 90-day probationary periods is very very small so what is the problem we are trying to fix here? As the member Shane Ardern used to ask what is the mischief that we are trying to fix here? I do not understand that.  
Even if a worker did get sacked because of racism because she was pregnant or because his or her face did not fit how will the Minister make sure that that is not covered up? All that is provided for in this bill is that the employer just has to say that the worker is dismissed. The employer does not have to give a reason. 
Hon KATE WILKINSON (Minister of Labour) 
: 
 I am delighted to take the call. I was waiting to take the call until I had my list of questions but that is OK I have four so far.  
Hon Phil Goff 
: I asked the Minister at least six actually. She must be hard of hearing.  
Hon KATE WILKINSON 
: Pardon? 
Hon Phil Goff 
: I had six but that’s OK.  
Hon KATE WILKINSON 
: As we have said the Employment Relations Amendment Bill is a very moderate bill. It was carefully drafted to give new employees the opportunities to get their feet in the employment door. It is not about taking away existing rights.  
Hon Member 
: Yes it is.  
Hon KATE WILKINSON 
: If the members on the other side of the House would like to read the bill they would see that it does not apply to existing employees. It applies only to prospective employees and it is only by agreement. I refer firstly to the labour issues spokesperson Mr Mallard who commented about mediation.  
Hon Darren Hughes 
: The Hon Trevor Mallard.  
Hon KATE WILKINSON 
: The Hon Mr Mallard said that once sacked mediation would not apply. That shows an alarming ignorance of employment law by the previous Minister of Labour because if that was correct under the Employment Relations Act at the moment no sacked employee whatsoever would have access to any mediation services. Perhaps Mr Mallard might like to refer to sections of the Act such as section 146 which refers to “persons” rather than “employees” in respect of where mediation is covered.  
I refer to the Hon Mr Goff’s questions. He asked why the bill cannot be referred to a select committee.  
Hon Phil Goff 
: No you have missed out the first question entirely.  
Hon KATE WILKINSON 
: The choice of when I answer questions is mine thank you I say to Mr Goff. The Hon Mr Goff asked a question about why the bill was not referred to a select committee. A very similar bill was referred to a select committee in 2006. The recommendation stated that the vote was tied and therefore lost. There were 619 submissions on that bill and we addressed much of the opposition to the bill. As I said in my second reading speech one of the objections was that employees would be reluctant to change jobs if they were subject to a probation period. That is why we have made it by agreement. We are not forcing a trial period on employees. We are saying to employees to go to an employer and say “Give me a chance give me a try and I will prove myself in that 3-month period.”  
There were concerns during that original select committee hearing about human rights and discrimination. We have specifically protected rights against sexual and racial discrimination. Those protections of human rights and health and safety still remain. They are still protected. One of the other objections made at the original select committee hearing was that it would allow employers to engage employees on a series of probationary periods—in other words the 89-day rollover. Again we have provided for that because the employer of somebody who has been previously employed by that employer cannot use that same probationary period. We have added in those safety mechanisms because we appreciate that there are some unscrupulous employers.  
What we have done is to balance the interests of the employer and the employee and we have come up with a bill that is a win-win situation. It has safety mechanisms in it. It has a trial period for which small businesses have been asking for many many years. In fact the Small Business Advisory Group report in 2003-04 which was referred to had as its first and foremost recommendation a trial period for small businesses.  
The member Darien Fenton asked why this provision applies to businesses with fewer than 20 employees. Well 20 is the recognised number for small to medium sized business enterprises. Those are also businesses that are less likely to have the human resources capabilities to make perhaps those right recruitment decisions. We have again added that extra protection to give small businesses the confidence to employ workers who are perhaps on the margins and perhaps have not been in the workforce before and to give those prospective employees an opportunity.  
The other protection that we have specifically stated is that those on a benefit who enter into a trial period that does not work out for some reason other than their own fault will not have to face the stand-down period on their benefit. We want to encourage workers to go off the benefit with the confidence that they can go back on to it if their trial period does not work so they can get some confidence and have the opportunity to enter into the workforce.  
Hon PHIL GOFF (Leader of the Opposition) 
: 
 Frankly that was pathetic. I said before that this Committee has one opportunity only to get accountability from the Minister of Labour the Hon Kate Wilkinson and the Minister ignored all of the questions that were asked of her. She ignored all of the questions. Let me put them again Minister so you can take a note this time and answer the questions that are being asked of you.  
Hon Bill English 
: I raise a point of order Mr Chairperson. I think we have a pretty unique situation here where the member has had according to my count probably half a dozen rulings from presiding officers over the last few days about what is now a relentless abuse of a strong parliamentary convention which is that members do not address members by the term “you”. By convention for the benefit of members who do not know this I say use of that term can only refer to the Chair and it is wrong to bring the Chair into debate. That is against the Standing Orders. I think the Leader of the Opposition can be forgiven for doing that three or four times in his excitement. But you have given a ruling earlier tonight which I heard and the member is continuing to do it. He is continuing to do it because he is trying to pressure the Minister in the chair the Hon Kate Wilkinson in a highly personal way. That is not how Parliament does business. Members can yell at Ministers in the chair and they can ask hard questions but they cannot use that term. The member is getting into the position where he is flouting consistent rulings from the Chair. Either the Chair asserts its authority or the rest of the Committee will have to assert its right to have the Standing Orders obeyed not flouted consistently by a senior member.  
Hon Member 
: How pathetic.  
Hon Bill English 
: I raise a point of order Mr Chairperson. Points of order are to be heard in silence and if the member does not think that is a serious matter I say it is. To have a Leader of the Opposition consistently flouting rulings from the Chair is something that the Parliament takes seriously. 
Hon PHIL GOFF 
: Speaking to the point of order Mr Chairperson.  
The CHAIRPERSON (Lindsay Tisch) 
: No I do not need any help on this matter. I will just comment on the Hon Bill English’s point of order. I made it very clear at the beginning of this debate that members were not to use the word “you”. That does bring the Chair into the debate and we are not to have that any longer. It has happened over the last couple of days. Other presiding officers have commented on that and we want it to stop because it is an abuse of the process. Members cannot use the word “you” and it will not be accepted. We now move on.  
Hon PHIL GOFF 
: I think the Committee can reasonably expect accountability from the Minister given that this matter is not being referred to a select committee. Therefore I ask of you Mr Chair that when questions are asked of the Minister you ensure that an honest attempt is made to answer them. No honest attempt was made. The questions were universally ignored.  
I will put those questions again and I would like Mr Chairperson to have some quiet from the Opposition because I fear that the Minister is not hearing the questions over barracking such as that we are hearing right now. I want her to understand what the questions are.  
My first question to the Minister is: since she asserted in her initial speech in the first reading that no rights were being denied to employees why does the clause we are debating say employees will be denied the right to bring a personal grievance or legal proceedings in respect of a dismissal? And why can it be considered fair that if a person is dismissed for bad reason without legitimate reason being given such a person should properly be denied access to due process to challenge that dismissal? Those are questions one and two.  
Question three is: as this bill is not coming into effect until 1 April why is it not being referred to a select committee where public submissions could be considered and proper scrutiny of the bill by members of the House could be allowed instead of it being rammed through under urgency tonight? The Minister partially attempted to answer that question by saying it had gone to a select committee before which patently it has not; it was a member’s bill that went to a select committee. The member’s bill had some similarity to this one and it was rejected by 527 submissions out of 619. Is it therefore simply the result of the sheer arrogance of this Government that because a similar bill went to a select committee and was roundly rejected it will not take the chance of subjecting this legislation to similar scrutiny?  
I want to know from the Minister—this is question No. 5 I think—when a law was last passed through this Parliament that took away fundamental rights such as the right to due process if one is unfairly dismissed without that law being referred to a select committee. That is a very clear question and I expect the Minister to be accountable and answer it.  
The sixth question is: given that stakeholders— 
Hon Tau Henare 
: I raise a point of order Mr Chairperson. During that exchange—and this is not directed at the leader of the Labour Party—the gentleman sitting next to the Hon Phil Goff threatened the Minister in the chair. The leader of the Labour Party may not have heard it because he was in full flight but the Hon Darren Hughes used the words “I’m watching you.” and he was pointing in a threatening manner. That sort of behaviour is for the older members of the Labour caucus certainly not for the jumped-up little person in that seat. 
Hon Darren Hughes 
: I think that of all the things I am known for being threatening is not one of them. I was telling the Minister that she was busy chatting away to the Government whips or to her colleagues over there and she was not listening to the Leader of the Opposition’s questions. He was having to use one of his calls in order to put his questions again because they were not answered the first time. I said to her that she was not even listening to them or writing them down. She then showed me a pad of paper and I said: “I’m watching you; you weren’t writing it down.” Mr Henare who thinks only in terms of aggression which is interesting then decided that was some sort of terrible abuse. I would be amazed if the Minister felt that because we were in a dialogue with each other and Mr Henare is not the referee of interjections between members. So I am perplexed to know what he is talking about. 
The CHAIRPERSON (Lindsay Tisch) 
: I thank the Hon Darren Hughes. I just caution members about the language they use. I did not hear the comment. We will move on. 
Hon PHIL GOFF 
: Question No. 7 to the Minister is and was: was she aware of the criticism of this measure by stakeholders the Council of Trade Unions the Engineering Printing and Manufacturing Union FinSec the Association of Salaried Medical Specialists and most important the Human Rights Commission all of whom have been critical of the fact that they have been denied the right to have their voice heard? And is she going to arrogantly override that concern by continuing to deny those interested stakeholders the chance to have their voices heard in the normal democratic way that applies to almost every piece of legislation that is passed by the country?  
The final question—we shall call it question No. 8—was whether she accepts the criticism by the Human Rights Commissioner that rushed legislation is potentially risky legislation. Was this legislation rushed? If not why was it not available to members until a quarter to midnight last night? Was that because the legislation was in fact rushed—the Government had just finished drafting it—or was it because Gerry Brownlee was so absolutely arrogant that he did not want any member of this Parliament to see it so it could be subjected to scrutiny? If that is the case is the Minister satisfied that not sending the bill to a select committee so that the select committee can scrutinise it not allowing public submissions so that the public can have a say and not even allowing members of Parliament to see the bill until midnight— 
Hon GERRY BROWNLEE (Leader of the House) 
:  
I seek leave to table a document that shows just one of the numerous occasions over the last 9 years when the Labour Party took particularly urgent actions to pass bills without the bill being on the Table. It just happens that in this case the bill related— 
The CHAIRPERSON (Lindsay Tisch) 
: Leave has been sought to table this document— 
Hon GERRY BROWNLEE 
: Well I have to tell him what is in it. 
The CHAIRPERSON (Lindsay Tisch) 
: You have said enough. We know what is in it. 
Hon GERRY BROWNLEE 
: Well what is in it? 
The CHAIRPERSON (Lindsay Tisch) 
: OK the member may continue to describe the document. 
Hon GERRY BROWNLEE 
: It just happens to be a document— 
The CHAIRPERSON (Lindsay Tisch) 
: The member just needs to describe the document. He does not need to read it out in full. 
Hon GERRY BROWNLEE 
: OK. The bill in question of course was the Appropriation (Parliamentary Expenditure Validation) Bill which made legal the illegal spending of Labour in 2005—and I can say that Labour members did not want the public to know about that either. 
The CHAIRPERSON (Lindsay Tisch) 
: Leave has been sought to table that document. Is there any objection? There is. 
Hon Dr WAYNE MAPP (Minister of Defence) 
: 
 The Leader of the Opposition—who frankly would be better advised to spend his time up in his office signing off his Christmas cards rather than coming down here and making a fool of himself—purports to ask eight questions. He really only asked one question: why did the bill not go to a select committee? The truth is that this issue was extensively debated in the select committee. I inform that member that all the people who wanted to make a submission on the issue did make one. Interestingly enough of course 837 of the submissions were form submissions by hardcore leftist trade unionists. I guess that may be disappointing to members opposite but how seriously can one take submissions that are just written out by the Service and Food Workers Union on a little postcard for heaven’s sake? The truth is that these issues were extensively debated.  
This bill has actually benefited from that select committee process. When the bill I proposed came back for its second reading the document from the select committee that was tabled in the House set out the nature of the amendments that would have been made had the bill got to the Committee of the whole House. Virtually all of those issues have been picked up in this bill. Effectively it is as if this bill had gone to the select committee and the issues that the Leader of the Opposition and his colleagues are concerned about have been thoroughly canvassed. That is precisely why there is a mediation provision in the bill before us now. That was one of the outcomes of the select committee.  
The other issue was the ability to go to the Employment Relations Authority and the Employment Court on the human rights issues. Initially in my bill they were going to go to the Human Rights Commission but it was considered after hearing the submissions that it would be better to keep that within the authority. That also is now reflected in this bill. 
Hon Ruth Dyson 
: But you were going to abolish it. 
Hon Dr WAYNE MAPP 
: Again we hear from the Opposition. That is complete ignorance on its part. There was never any suggestion ever on this side of the Chamber that we would abolish the Human Rights Commission. What an absurdity! That is another untruthful statement coming from those members. There was never any suggestion of that. When we think about it why would I suggest that when I actually had it as the remedy in the bill I proposed? It is simply absurd and I advise the member that if she and her colleagues are going to spend hours debating this bill then they should at least get their facts right before they do so. 
So the core issues which seem to be exercising at least the minds of some members on the other side have been answered. The issues that are relevant have been fully addressed in the select committee. The only people who would make submissions are precisely the people who have already made those submissions and their concerns have actually been addressed.  
One of the bizarre issues that I keep hearing from Darien Fenton who is obviously an ardent unionist and I guess we would understand that is that this bill will send New Zealand employment relations back into some dim dark past. I remind that member and indeed New Zealanders at large of two things. First we are the only country along with Denmark in the OECD that does not have a proper probation period—that is it does not have access to the full processes of the Employment Relations Authority and the Employment Court. Certainly there will be mediation. The second issue that she keeps raising is that this bill will somehow mean it will be difficult for people to get jobs. That is the actual suggestion; that this will make it difficult for people to get jobs. Do Opposition members not get it? The whole point of this legislation is to make it easier for people to get jobs and that is the clear and obvious intention.  
Finally I want to remind members that this issue was put fairly and squarely to New Zealanders in the general election. There was a result in that election. Members opposite were once on this side of the Chamber. They are now on the other side. The reason is that they lost the election on this issue and on others. 
Hon TREVOR MALLARD (Labour—Hutt South) 
: 
 I want to thank the Minister in the chair the Hon Kate Wilkinson albeit in a relatively limited way for her response. I counted about 15 questions that were asked and she was kind enough to address one of them. But unfortunately— 
Hon Phil Goff 
: But not answered?  
Hon TREVOR MALLARD 
: Well she did answer it but unfortunately she got the answer wrong. The question is one of mediation and earlier I asked her whether someone is in fact still an employee after he or she is dismissed. She quite correctly pointed out that section 144 of the Act—and in particular subsection (2) in paragraphs (b) (c) and most important (d)—refers to persons. I think if clause 67B(4) had referred to persons then they would be caught. Unfortunately unlike the primary Act the amending bill refers to employees. These people are not employees because their employment has been terminated. I do not want to suggest reconciliation because I do not want to get as close as that but in the spirit of helpfulness I ask the Minister whether she is prepared to accept an amendment that changes “employee” to “person whose previous employment agreement” or similar words.  
It is not a complex issue but there is a difference between the Act and the amending bill. A court would not be able to go to these issues; there could be declaratory judgment but an individual could not take a case. It is possible a court could go there around a declaratory judgment. I am sure some of my learned friends will be able to outline that relatively soon. The court tends to think that Parliament does things deliberately and if it says that a person whose employment relationship that has broken down and terminated can go to mediation but in the amendment it says an employee—and clearly it is not an employee—I think it could well be the case that a court would say on the basis not of an individual case but on review if the question is part of a case stated that Parliament has acted deliberately. They will think that we know what we are doing. They will think that the Minister knows what she is doing and that she has acted deliberately. 
Rt Hon Helen Clark 
: Very unlikely. 
Hon TREVOR MALLARD 
: The former Prime Minister says that it is very unlikely that the court would think that; unfortunately I tell the member what happens is that we ask the courts to take us seriously and to consider that we do things deliberately. There is a clear differentiation here from what is in the Act in section 144(2) paragraphs (b) (c) and (d) where it refers to persons. I accept the advice that it refers to persons. I then ask the Minister why this clause of the bill does not refer to persons. 
The CHAIRPERSON (Lindsay Tisch) 
: I ask the member which clause he is referring to. 
Hon TREVOR MALLARD 
: I am referring to the clause the Minister referred to in her reply. 
The CHAIRPERSON (Lindsay Tisch) 
: We are debating Part 1 not Part 2. I bring you back to Part 1 as that is the part we are debating. 
Hon TREVOR MALLARD 
: Sorry Mr Chair I am quite happy for one of my colleagues to continue on that. I thought it would be useful.  
I raise a point of order Mr Chairman. Are you going to rule on Mr Brownlee’s interjection while you were ruling? 
The CHAIRPERSON (Lindsay Tisch) 
: No we are just carrying on. 
Hon TREVOR MALLARD 
: I am therefore happy for my colleagues who have comments to continue given your direction that this matter be considered and I think considered very very carefully. 
SUE MORONEY (Labour) 
: 
 Mr Chair first of all I congratulate you on your appointment because it is the first time I have been able to speak in this Chamber since you have been appointed to your position. I will address you for just the first couple of minutes because you of course are in your first 90 days in this position and I would expect that if you were taken aside by Parliament— 
The CHAIRPERSON (Lindsay Tisch) 
: The member cannot bring the Chair into the debate. 
SUE MORONEY 
: It was deliberate. 
The CHAIRPERSON (Lindsay Tisch) 
: I warned earlier on that you cannot use the word “you”; you cannot bring me into the debate. 
SUE MORONEY 
: I raise a point of order Mr Chairperson. I am actually specifically addressing you. 
The CHAIRPERSON (Lindsay Tisch) 
: Well you cannot address me. We are addressing Part 1 of this bill and the member should confine her comments and debate to Part 1. 
Hon Darren Hughes 
: You can talk about Gerry though; he is stuffing up his 90 days. 
Nathan Guy 
: I raise a point of order Mr Chairperson. The member Darren Hughes has moved out of his seat to interject and under the Standing Orders a member may not move from his or her seat in order to have a clearer spot to interject from. 
Hon Darren Hughes 
: Mr Chairperson I have some useful information for you. 
The CHAIRPERSON (Lindsay Tisch) 
: I do not need any information. The member can shift to anywhere within the Labour seats but he cannot shift to make interjections from a seat that gives him an advantage over the one where he would normally sit. We will move on. 
SUE MORONEY 
: In the Committee stage of a bill we would normally be referring to the select committee process and talking about the submissions and what had come back to us from the select committee. In talking about Part 1 including the purpose of this bill of course we cannot talk about what happened in the select committee on this bill because there has not been a select committee process. I was on the select committee during the term of the last Parliament when the member’s bill that was similar to this bill but was not this bill was actually considered by the select committee. But it was not the same consideration that there would have been of this bill because no one had the opportunity for example to debate or present a submission on the issue of how this measure would affect small businesses. So no one has had the opportunity to tell us that small businesses will actually suffer as a result of this bill because they will not be able to compete with large businesses which of course can attract the sort of staff who want job security and stability. Those small businesses have not had the opportunity to come to the select committee to talk about their issues.  
Organisations are running red hot in pumping out press releases because they do not have the ability to participate through the normal democratic process. They are pumping out press statements because that is their only opportunity to be heard. This Parliament has stopped organisations from following the normal democratic process so groups like the New Zealand Federation of Business and Professional Women have put out press statements. What did the federation have to say? It stated: “We have worked hard to improve the status of women in New Zealand over the past 70 years and to hear that New Zealand might soon have a law that would allow employers to fire an employee without reason or redress horrifies us.” The federation is horrified at this law. It further states: “Employers should have robust employment processes and administer them competently to ensure they employ the right person rather than rely on being able to sack someone if they find they got it wrong.” That press statement was released by Mrs Faye Gardiner who is the president of the Federation of Business and Professional Women.  
Another organisation that has had to pump out a press release because it has not had the opportunity to address this bill through the normal democratic select committee process is the New Zealand Educational Institute. We all heard what Anne Tolley promised the institute when she talked about teachers and that has been an issue of some contention in this debate. Well this is what the institute has said: “Thousands of schools and early childhood centres will be affected by the government’s ‘Fire at Will’ bill which is being pushed through parliament today under urgency.” The institute understands the employment relationship; it knows that teachers in thousands of schools and early childhood centres will be affected by this measure. The institute now knows that Anne Tolley did not tell it the truth when she went to its conference. The institute has further stated: “Many teachers and principals move to gain promotion but they would be reluctant to move to a new job where there was no certainty of employment for the first 90 days. The law will jeopardise professional and career development and make it even more difficult for small rural and remote schools and centres to attract experienced staff.”  
I will talk a little about what we did hear during the submission process on the member’s bill about the purpose of this measure. My colleagues have quite rightly said that far and away most of the submissions were opposed to this measure. New Zealanders believe in fairness for everyone. It does not matter whether it is an employee’s first day 20th day or 20th year in a job—New Zealanders believe in fairness. This bill takes away workers’ rights and the Minister of Labour Kate Wilkinson has still not addressed that issue. How can she stand up and say this bill does not take away workers’ rights when it clearly strips away workers’ right to take a personal grievance? It clearly strips away their right to go to the Employment Relations Authority. I ask the Minister to explain how this bill does not take away the rights of employees who work for a small employer in the first 90 days of their employment. 
Hon LIANNE DALZIEL (Labour—Christchurch East) 
: 
 I was sitting in my office a while back and I heard people waxing lyrical on the efforts of the Small Business Advisory Group. I know intimately the work of that group because I had the pleasure of being its Minister for a period of time. I have here three of its reports: one is from August 2004 one is from March 2006 and I have just got off the Internet the 2008 report as well. The only report of the Small Business Advisory Group that the Minister in the chair Kate Wilkinson referred to was its 2004 report. 
The Minister completely failed to note that the group responded to the fact that the Government of the day did not want to let employers off the hook in terms of their needing to understand how important it was to employ the right people for the job and to ensure that they had good-quality information so that they could make good employment decisions right from the outset. It is absolutely extraordinary that the National Government somehow seems to think that it is OK to let employers off the hook in this regard. We all know that if the expectations on both sides of the employment relationship are not well established right from the outset then no productivity whatsoever will be built from it. 
I cannot understand why National is holding to the first of the Small Business Advisory Group’s reports when we know that the group’s view changed. In the first report the group was very much in favour of the personal grievance - free period. In the second report it was also in favour of the personal grievance - free period but at the same time it wrote to me the Minister for Small Business and said that it was really important that we got to the bottom of the real problem. The real problem was that employers were paying out money to people they felt were not performing in the job because the employers feared the consequences of ending up in a personal grievance situation. They would rather just pay the employees off and make the problem go away. The Small Business Advisory Group sent a letter to me asking for a new mediation system that would enable mediators to listen to the essence of the issues before them give some guidance and make a decision when that was appropriate; the group also proposed that there would be limited rights of appeal. That was something that the Government of the day was having a look at. So an employment facilitation process was how the group responded. 
The Minister has completely ignored the group’s latest report. It might be worthwhile to table it because I do not think the Minister has actually read it. The Small Business Advisory Group in its latest report reiterated its “support for grievance-free probationary periods. However we would take a [much] more targeted approach than our predecessors and believe that whilst preserving human rights protections for all employees [the provisions] should apply to any businesses with 15 or fewer full-time employees.” I want to know why the Minister has chosen to apply this bill to firms with 20 part-time or full-time employees. She has made no differentiation. She has not actually looked at the group’s report. I want to know why National has not taken up that proposal. 
The Small Business Advisory Group further stated that the most important thing was to “break the cycle of misconception and destructive behaviours during employment disputes. Our recommendation involves making it easier for both employers and employees to get access to balanced and helpful advice relevant to their particular dispute.” The group’s recommendation was “That information on good practice in employment relationships tailored to small business owners and managers preferably endorsed by employer organisations be made more readily available and be better promoted.” That sounds like a very good idea to me because it does not let employers off the hook. We know that a lot of small employers are seeking an easy way out rather than addressing the real problem which is the failure to have really good processes in place in order to establish expectations on both sides of the employment relationship. We have heard members opposite say that Labour talks about one side of the employment relationship only; well I say that the expectations on both sides of the relationship are very very important indeed. I would like an answer from the Minister.  
LYNNE PILLAY (Labour) 
: 
 I start by congratulating Lianne Dalziel on her very constructive comments. Although the Minister in the chair Kate Wilkinson may not have been listening I would hope that members on the other side of the Chamber were listening. Maybe they were thinking they should slip outside and talk to the officials; maybe they were thinking that there had been some constructive advice from this side of the Chamber. 
This is a sad day; it has been a sad few days in this Chamber. We have seen ordinary Kiwis absolutely dealt to by the National - Maori Party - ACT - United Future Government.  
Hon Member 
: It’s a four-headed monster.  
LYNNE PILLAY 
: That is right.  
We have seen either tax increases or the status quo for low-paid workers and modest-income earners. We have seen innovative businesses dealt to. We have seen people’s KiwiSaver dreams and aspirations slashed by National within 2 days. But if we look back at this debate we see that the most insulting thing is for members opposite to argue: “We’re from the Government and we’re here to help workers. We are giving you the right to be sacked in the first 3 months of your employment. We are here to help you and we will make it really easy for you. We are here to provide a really bright future.” Yeah right! 
I can see that every time a member on this side of the Chamber who has had involvement with workers or unions gets up to speak Government members froth at the mouth. I want to talk about the union movement. I want to talk about unions which advocate for warning procedures which teach delegates— 
Hon Tau Henare 
: Whatever. You haven’t done a hard day’s work in your life. 
LYNNE PILLAY 
: Who said “Whatever.”? The laziest union official in New Zealand Tau Henare. He is right—he never did anything on the job. He was lazy. Every other official in the union movement gets out there and tells employers that if they want to have a good relationship with their employees they should make things clear and have good procedures. They tell employers that they should not threaten employees and that if there is a problem they should give warnings. 
Hon Tau Henare 
: How can I be the laziest union official? They’re all lazy. Where do you think I got it from? I used to work with Rick Barker. 
LYNNE PILLAY 
: Poor old Tau! He never got it. He was too busy skiving off work as he does around here. He never got on to it. But I am telling him that members who have worked in the union movement worked for workers’ interests and worked to see businesses do well know that good businesses say to their employees: “Let’s have a constructive relationship. Let’s talk about how to make things go right and if there are problems let’s talk about how we address them.” They do not put people’s livelihoods at risk because they may or may not make a mistake. 
Workers might change their hairstyle as Wayne Mapp has done. He got innovative; he went out and got a cool hairstyle. We in Parliament say we like it and he looks cool; MPs in Parliament have been saying that Dr Mapp has made an effort and he looks nice. But an employer might say: “Wayne I don’t like your hairstyle so you’re sacked.” Where is the redress? It is a new hairstyle. It is a 90-day hairstyle. [ 
Interruption 
] Exactly! Members on this side are saying that that sort of thing needs to stop. We need a constructive dialogue. Although Tau Henare when he was in the union movement did not promote that we did. 
The employers’ organisations have to take some responsibility here. They have a duty to educate their members their constituency about constructive working relationships. The answer is not to lose people’s skills or to deprive people of their livelihoods because they have not had the opportunity to put things right. If they have made a real error—rather than doing something that the employer just does not like on a whim—or if they are not performing then surely it is fair and reasonable that that issue is raised with them so that they can correct it. 
MOANA MACKEY (Labour) 
: 
 I am happy to take a call on Part 1. I have some questions for the Minister in the chair Kate Wilkinson. First I want to know which one of the two stories she has been telling on this bill is the correct one. She said the public do not need to be worried about this bill because it is not the Wayne Mapp bill. Then she said that it does not need to go to a select committee because it is the Wayne Mapp bill that has come before this Parliament. So the simple question is which one of those two stories is true and by proxy which one was misleading.  
The second question I have for the Minister in the chair is whether she understands the difference between a member’s bill and a Government bill. Does she understand the difference between member’s bill that did not have the numbers to pass and that the public never expected to become law and a Government bill that the public knows will be passed but did not expect to be rammed through under urgency—a bill that will nevertheless be on the statute book and that the public would like to have a say on? I want to know whether the Minister in the chair understands that difference.  
Let us look at clause 4. It states that the purpose of the legislation is to provide for a trial period of no longer than 90 days. That is fine; that is what is in the current law. In fact the current law is more flexible. Workers can negotiate a trial period that is shorter than that or longer than that. But the clause goes on to state—and this is the crux of it—that an employer can dismiss an employee without the employee being able to bring a personal grievance or legal proceedings in respect of the dismissal. I want to know how on earth the Minister thinks that that is not a removal of rights. I want to know in what parallel universe she thinks that that is not a removal of rights given that employees now can bring a personal grievance or legal proceedings in respect of a dismissal. It is a simple question and I think the workers of New Zealand deserve an answer.  
Then the clause states: “subject to certain exceptions;” and the Minister has made a big deal of this. She said she has made sure that the human rights of every worker will be upheld. 
Hon Trevor Mallard 
: I raise a point of order Mr Chairperson. I am sure Tau Henare did not really mean that you are a grievance but he should not bring you into the debate in that way at all. 
Hon Tau Henare 
: I apologise. 
The CHAIRPERSON (Hon Rick Barker) 
: The member has apologised. 
MOANA MACKEY 
: As I was saying the Minister in the chair has made a big deal of the fact that she is protecting the human rights of every worker. So my question to her is how she will police this provision. How will she get into the minds of every employer who lets someone go within that 90-day period? How will she know why that person was let go? How will she know that someone who fired a worker because he or she did not like the colour of the skin of that person’s wife or husband fired the worker for that very reason when that employer just says: “I’m sorry; you just don’t fit in this job.”? How will the Minister know?  
Also how can she possibly know this when the bill states that it is not required that a reason be given as to why that person has been let go? One does not even have to give written reason. So how will we know the reasons why someone has been let go so that we can police it and know that the reason is fair?  
I also ask the Minister in the chair whether she appreciates the fact that although everyone appreciates that employing people with their terms and conditions and their wages is a cost to a business that same money also puts food on the tables of working families? Does she appreciate that it puts a roof over the heads of them and their families and feeds and clothes their children? I have not heard one word from her. I have not heard one word from any member in the National-ACT Government who has talked about the livelihoods of workers and the fact that the money they are complaining about is the very money that feeds and clothes those children. Those members will stand up and complain about law and order and never make a connection to low pay and to people being dismissed unfairly and not having a job.  
My last question to the Minister is this: does she not think it is offensive to tell workers who have been let go from their job unfairly that they should feel grateful that she has allowed them to go back on a benefit right away? Does she not believe that that is offensive to working people or does she genuinely believe she is being generous? 
Hon TAU HENARE (National) 
: 
 I move  
That the question be now put 
. 
Hon PHIL GOFF (Leader of the Opposition) 
: 
 I raise a point of order Mr Chairperson. I raise this matter with you because you were not in the Chair at the time when I raised and enumerated eight questions with the Minister in the chair. I ask you before you consider taking any closure to give the Minister a chance to give answers to the questions which I understand she has written down. 
The CHAIRPERSON (Hon Rick Barker) 
: It is not for me to direct the Minister in the chair as to whether she will answer questions. 
Hon CLAYTON COSGROVE (Labour—Waimakariri) 
: 
 I will take a brief call to highlight an issue that was brought up on the taxation bill and in the case of the Employment Relations Amendment Bill it pertains to the adequacy statement in the explanatory note of the bill.  
What we have regarding this bill is a series of events. First it is going through under urgency even though it will not be implemented until April. So the first excuse for urgency is gone. Then there is no select committee process at all. There is no chance for any public input at all even though Mr O’Reilly from Business New Zealand who as my colleague Lianne Dalziel and other colleagues have alluded to is probably more sympathetic to the National Party way of thinking than to ours has said it is not appropriate to ram this measure through. Mr O’Reilly who is a man of principle even though I may disagree with some of what he says wanted there to be a public process so that there would be scrutiny and quality control of the bill. Under urgency there is no public input and no select committee input at all. Then we have a Minister in the chair the Hon Kate Wilkinson who since I have been in the Chamber has not answered any of the questions about the bill that have been put up by speaker after speaker.  
I want to address something to the ACT Party given that its tanned Minister from the sunset-tan paradise of Epsom is the regulatory-buster or the Minister—what is his name— 
Hon Lianne Dalziel 
: The Minister for Regulatory Reform. 
Hon CLAYTON COSGROVE 
: He is the Minister for Regulatory Reform. 
Hon Trevor Mallard 
: The cockatoo! 
Hon CLAYTON COSGROVE 
: I would not say that. 
Hon Phil Goff 
: You’re far too statesmanlike! 
Hon CLAYTON COSGROVE 
: Indeed I am far too statesmanlike as my leader says to say that.  
Last night a bill went through the House with a regulatory impact statement that was inadequate. But that slid by Rodney Hide. Today we are looking at this bill and we see the adequacy statement states this: “It has not been possible for the Regulatory Impact Analysis Team to undertake an assessment of the adequacy of the Regulatory Impact Analysis and the Regulatory Impact Statement for this proposal within the time frames.”  
One then has to say that Mr Hide being a member of the executive being well briefed on this bill and being the regulatory-busting Minister who went on  
Close Up 
 and said: “Bring me your waifs and strays”— 
Hon Parekura Horomia 
: Here he is! 
Hon CLAYTON COSGROVE 
: Here he is back from the tanning machine. He said: “Bring me all your problems. Send them care of Rodney Hide Parliament Buildings and I will fix them.” He missed the first bill that went through and I could say that I am sympathetic to Mr Hide about that because he is a new Minister and he is probably still getting the office straightened out the boxes unpacked and the infrared machine set up in the bathroom. However to miss one piece of legislation where the regulatory impact statement was inadequate is one thing but now we have the second.  
I wonder whether Mr Hide would take a call and tell us why he was asleep—maybe not at the wheel but at the tanning machine—not earning his pay grandstanding in the media and saying he is the regulatory-buster who will sort all the issues out and cut through red tape. For the benefit of Mr Hide who may not have heard me because he may have been in a different part of the Chamber I will read again the adequacy statement for which he is the regulatory-buster. The statement which he will be more familiar with than I am says this on this bill: “It has not been possible for the Regulatory Impact Analysis Team to undertake an assessment of the adequacy”—I know there are a few big words in there for Rodney Hide to understand but we will give it a go—“of the Regulatory Impact Analysis and the Regulatory Impact Statement for this proposal within the time frames.”  
Hon Phil Goff 
: It’s rushed legislation. 
Hon CLAYTON COSGROVE 
: My leader is right; this is rushed legislation. Presumably Mr Hide was in the loop—in the bathroom or somewhere. But presumably he was briefed as the regulatory-buster in the executive—the man who will cut through red tape and dispose of regulation. He will turbo-boost regulation out the door.  
This is the second bill that has passed Mr Hide by. I have not yet looked at the other bills but I suspect they are all the same. I would like Mr Hide to tell us why he is not doing his job. He is now paid a big fat salary he now has the cars and the office and he has pontificated for years about what he would do if he made it into the executive and how he would slash red tape. Yet either he was too lazy or too silly—I could use another word but I will not—or he was asleep at the wheel not in the building or not doing his job because this bill is rushed legislation. By Mr Hide’s own standard of regulatory performance he has not even had the decency the professionalism or the fortitude to stand up and say: “Hang on the ACT Party believes in getting rid of regulation or having quality regulation.” We now have our second piece of inadequate legislation in 24 hours and he is asleep at the wheel.  
Well we will hold Mr Hide the great perk-buster scam-buster and now regulatory-buster to account for that. Mr Hide is asleep either at the tanning machine or at the wheel. 
DARIEN FENTON (Labour) 
: 
 I want to return to some of the questions I asked earlier on of the Minister in the chair the Hon Kate Wilkinson because when she responded no answers were forthcoming. I would like to put those questions to her again in terms of the purpose of the bill because she has not answered those questions and I have some additional questions. I asked how the number of staff in a workplace will be calculated. Are we talking about full-time equivalents casuals—including contractors and external contractors—or temporary workers? How will the calculation happen? That will be an important point when a worker or an employer comes to decide whether he or she has to comply with this proposed legislation.  
Also how will the Minister ensure that separate businesses are not created within larger workplaces for the purposes of exploiting the provisions of this bill? The Minister will say that that will not happen but it did happen under the Employment Contracts Act when large workplaces created small subsections of their workplaces so that they did not have to have one department on an employment contract. So it has happened in the past and I ask the Minister how she will ensure that this bill is not abused in that way.  
I have another question about the youth qualifying period for the minimum wage. Will the bill have any impact on the 200 hours involved in that? If a worker is sacked under the provisions of this bill will it have any impact on the youth qualifying period? There is also another very important question related to that. If someone is sacked under this legislation and there is no statement of cause and no requirement to give any reason what will be the status of that person’s employment record? Is that person sacked? What is he or she required to tell the next employer? If the next employer rings up for a reference what is the original employer supposed to tell the next employer? Will the employer say: “Oh well they got sacked but we don’t have to tell you the reason because there wasn’t really a reason we just didn’t like them.” or will the employer say that it was because of the 90-day probation bill? This legislation actually puts workers in a very precarious position because when they go to their next job the next employer will always ask about their previous employment. What is the status of those workers and how do they clear their name?  
I know that the tax bill that was passed yesterday included the provision in relation to KiwiSaver. The explanatory note states that the provisions in the Employment Relations Act were no longer needed because the problem had been fixed but I do not think that the legislation that was passed yesterday does fix the problem. What it does is provide that when a worker signs up for KiwiSaver the contribution has to be on top of a worker’s existing wages which does not prevent future wage rises being offset against KiwiSaver contributions. So although the explanatory note states that the provision is no longer necessary because it has been fixed I want to know how the Minister will make sure that that does not continue to happen in the future so that the next time there is a wage rise one lot of workers will get 2 or 3 percent because they are not in KiwiSaver whereas the workers in KiwiSaver get nothing. That was the purpose of the amendment in the name of Trevor Mallard last year.  
The other question I want to ask is what the objective of mediation is. Can mediation happen only within the 3-month or 90-day period? My colleague Trevor Mallard has brought up the issue of whether those people are still employees. If they are not employees under the definition of the bill are they therefore not entitled to mediation? What is the point of mediation and where does it go? Will it be just a nice talkfest whereby employers can say: “Oh we’ve got some problems.”? Will they still have the right to sack people? Will employers go along and have a chat about it but it will not mean anything? What is the objective if there cannot be any means of independent resolution? I would like to have those questions answered. 
In addition my colleague Sue Bradford in her second reading speech brought up some very important issues about the stand-down and about what happens. Again it goes back to what the status of the workers is if they are sacked under these provisions. Are they sacked for the purposes of the Social Security Act then stood down? How does Work and Income find out what their status is because they actually do not have a status they are just no one they are just nothing and they are just gone. How will Work and Income know? Will they have to make inquiries? Is it the Government’s intention to try to provide some change in that? 
DAVID BENNETT (National—Hamilton East) 
: 
 I move  
That the question be now put 
. 
Hon PAREKURA HOROMIA (Labour—Ikaroa-Rawhiti) 
: 
 We are in the second day of urgency debating one of the most outrageous attacks on the working class of this country. It is one of the worst instances of a Government not caring not sharing and prattling on about cruel unfair un-discussed legislation. I want to pick up a few bits. 
Maori and Pacific Island people will be hugely affected. I mihi to Hone Harawira after getting into his ears yesterday; I recognise that even though he did not have the full sanction of his party he had the gumption to vote against this measure. That is an interesting partnership between an employer and supposed employees and we have been only 2 days in urgency! I do not think it is going to last. 
You know there are some very very pointed statements in the explanatory note of this legislation. My colleague Clayton Cosgrove pointed out the adequacy statement and I want to repeat it: “It has not been possible for the Regulatory Impact Analysis Team to undertake an assessment of the adequacy of the Regulatory Impact Analysis and the Regulatory Impact Statement for this proposal within the time frames.” That is what the yellow-jacket-wearing perk-buster let slip past him. The partners involved with the Government—supposedly a coalition Government—do not know where they are going and do not know why this bill is coming in but the rest of the nation which is complaining bitterly tonight can see that it is a jack-up. 
Why do I say it is a jack-up? The explanatory notes states: “The introduction of such a trial period would encourage more businesses especially small businesses that can find it difficult to absorb such costs”—and that is understandable—“to take a risk on potential employees.” The Government is assuming that every employee who is taken on is a risk. What sort of mindset is that? 
The bar is set at businesses with 20 employees and under. Have all those employees been a risk to take on? I ask the Minister in the chair Kate Wilkinson how she came to decide that the bar should be set at 20 employees. Some of us who have had businesses and who have had employees know that there has to be more than good faith; there has to be an understanding of the rights that are fundamental to this great nation which was built by the workforce. The arrogance of the Government that has pervaded this discussion is unbelievable. 
The explanatory note states under the heading “Objectives”: “In considering changes to the ERA the key objectives are that the changes—should not create undue compliance …”. The explanatory notes also states that a trial period “will lessen compliance for instance where small business employers may face claims on grounds of unjustified dismissal:”. An assumption has been made by whoever has decided to introduce this cranky legislation—the Minister in charge of it—that every dismissal is justified. Is that why this legislation is here? 
In relation to the impact of it the explanatory notes states that the bill “will allow trial periods only by mutual agreement”. I can just imagine little Gerry 18 years old lining up at the gate of a business and the employer saying: “Hello little Gerry. Come into my business. I am going to employ you for 90 days or I might bop you out after 80 days. By the way Gerry we have to have a mutual agreement—you have to agree with me.” Gerry is standing there at the gate and he wants the job so he says “Yes bwana I’ll come in the gate.” What sort of mutual agreement is that? Of course the job applicants are going to agree with the employer. Right from the outset the poor old worker is more than penalised. 
Members opposite have huffed and puffed about rights today but they have really damaged 73 percent of the workers in the Maori electorates around this country—in the regions. Those people will get nothing out of the tax cuts. This bill is worse still; they will never get job surety or an opportunity to pay tax. What a great Christmas present! I can just imagine Gerry who looks like he could be Santa Claus roaming around with his bag and dishing out nothing. 
Hon KATE WILKINSON (Minister of Labour) 
: 
 I want to answer a couple of the questions raised before by the member Darien Fenton—and I think she made some very good points. Not in any particular order she referred to the 200 hours’ experience and asked whether if the trial period does not work out for a young person those hours would then be included in the 200 hours’ experience. I think that is a valid point because the definition of that 200 hours’ work in the minimum wage legislation is loosely defined and it should be made more certain. It is of course not within the parameters of this bill to do that. But having said that because 200 hours’ experience is loosely defined whether it is in a trial period or otherwise I say it would still be intended for that time to be countable.  
The second question related to the definition of “employee” and whether that included a full-time equivalent a casual etc.—what that definition included. We had discussions on that and we have stayed with the definition of “employee” that is in the principal Act. That is consistent also with the definition used in many of the employment agreements.  
The other point that was raised—and I think very seriously raised by the member—was about what happens if an employer deliberately forms and I am rephrasing the words a new entity in order to try to defeat the purposes and objectives of the Act. I think that was the intention of the question. My response to that is to say it could happen at any time during an employment agreement whether or not there is a trial period. There are specific provisions in the principal Act—in Part 6A—that apply in certain circumstances in relation to restructuring with regard to vulnerable workers. But the other issue would be that the matter would possibly be challengeable under the good-faith provisions of the principal Act. The matter is covered under the principal Act as much as it can be and again I say it is not within the ambit of this bill.  
Hon TREVOR MALLARD (Labour—Hutt South) 
: 
 I thank the Minister in the chair the Hon Kate Wilkinson. I think we now have had an attempt to answer five of the 37 questions that have been put to her. I think it is progress and if we can keep going down that approach then that will be useful and we will make some progress. I must say that her answers were not particularly convincing. Could she refer me to section 6A of the Act that she referred to in this particular case? I am sorry I am struggling a little bit because this legislation has the Citizenship Act in front of it. Section 6A of the Act is unfortunately one that is heavily annotated in the copy of the Act that is in the lobby and it is taking a little bit of time because of the areas that are struck out in this particular area. I therefore ask the Minister a very serious question because we have Part 6A around continuity. It is part not section; I ask whether the member meant part not section. 
Hon Kate Wilkinson 
: Part 6A. 
Hon TREVOR MALLARD 
: I have got to that. That is “Continuity of employment if employees’ work affected restructuring”. It does not go to the definition of employee as such. I think that was the question that was being asked of the Minister in the chair. It was a question that went to the definition of “employee” as it applies more generally in the Employment Relations Act and in particular as it applies in clauses 4 and 5 of Part 1 of the bill.  
I am looking quite carefully at this section of the Act and this deals with restructuring contracting out and contracting in. It does not involve the sale of shares of a particular company or that sort of contract agreement and it does not go to the question that was being asked of the Minister about whether the definition of “employer” in this bill is being effectively deliberately changed in order to avoid the provisions of this Act. That was the question that was being asked.  
We now know we are on Part 6A of the Act and if the Minister has a specific subsection that she can point to that addresses that question I would be obliged.  
While I have been talking I have been reading pretty rapidly through the legislation and I have not been able to find any reference. I would be inclined to say the specific subsection to which she alluded is not in here. If it is there I am sure she can get assistance from the officials who will pass her a note and that will give us the indication of the subsection. In a lot of cases especially in the interpretation section this law gives quite a lot of rights to vulnerable workers. It appears to me that this bill is heading in exactly the opposite direction from sections 69OK 69OH and the other employees section; in working my way through I see there is no definition of “employee” in this particular part. There are definitions of “vulnerable employee”. Of course I would like to ask the Minister whether she would be supportive of an amendment from us that used the current definition of “vulnerable employee” to exclude them from the provisions of this bill. The people whom the Parliament had already agreed were vulnerable might be protected in the same way that Anne Tolley promised that teachers would be protected from this bill. She said that employees in schools would be protected.  
AMY ADAMS (National—Selwyn) 
: 
 I move  
That the question be now put 
. 
The CHAIRPERSON (Hon Rick Barker) 
: It is normal after the Minister has spoken to give a right of reply on similar occasions. In this case I will give the call to the Hon Lianne Dalziel. 
Hon LIANNE DALZIEL (Labour—Christchurch East) 
: 
 There are some follow-up points that I want to make because I really think that the Minister in the chair the Hon Kate Wilkinson has not addressed the fundamental issue which is about process. The process in relation to this bill has been nothing short of appalling; it is so bad that even Business New Zealand does not want this bill to go through all stages under urgency without the opportunity to scrutinise it in a public setting at a select committee.  
I have heard various members of the National Government make the point that this bill had to be rushed through under urgency because of the need to get the legislation in place. It was kind of like saying they wanted to have people employed by Christmas and gone by Easter; that was the methodology that they really were talking about. But actually this bill does not come into effect until 1 April—after Easter. So why is this an April Fool’s Day bill? Why is it being dealt with under urgency and passed through all of its stages without the degree of scrutiny that one would expect from a good-quality regulatory process? 
Hon Trevor Mallard 
: I raise a point of order Mr Chairperson. It has been brought to my attention that pressure has been applied to the Minister in the chair from the Leader of the House not to take further calls. He has indicated to her that she is not— 
Hon Kate Wilkinson 
: Ha ha! 
Hon Trevor Mallard 
: Members may well laugh but one of the absolute privileges that members of the House have is to speak in the Chamber and it is very very clear going back hundreds of years in the Westminster system that it is a breach of privilege to pressure a member not to speak in the Chamber. It is a matter that we have to have clarification on. I want an assurance from the Leader of the House that he made no such comment—although it would be a breach of privilege I think if he gave that assurance. I want an assurance that no further pressure will be put on the Minister not to take a call. As you are aware this concerns the very thing that only yesterday in parliamentary terms—or 3 days ago in terms of the outside world—the Speaker went to the Governor-General and sought assurances on: that members’ privileges to speak would not be hampered in the House. Yet now a Minister is doing exactly that. 
The CHAIRPERSON (Hon Rick Barker) 
: Thank you for that. The allegation the member is making is very serious. The matter cannot be dealt with on a point of order; there are other processes to deal with it. It seemed to me that the Minister in the chair having spoken on several occasions in the debate did not appear to be particularly constrained. But if the member has evidence to that effect he should write to the Speaker taking that up with him as a breach of the privilege of the House. 
Hon LIANNE DALZIEL 
: The purpose clause in Part 1 states: “The purpose of this Act is … to provide when an employment agreement may specify a trial period of 90 days or less during which an employee can be dismissed and cannot bring a personal grievance or other legal proceedings in respect of the dismissal subject to certain exceptions;”. We will deal with the exceptions in much more detail when we get to the next part. But the point I want to make is this. The Government has made the point that it wants this legislation to protect vulnerable workers in terms of their ability to get jobs yet this measure gives no protection to the most vulnerable workers.  
I know that I used an example of an extreme case in my first reading address on this bill but I think it is a very important example which the Minister should think about very carefully. When young people are going into their first job they need considerable support. If their employer does not have to tell them what the expectations are and can just let them go at any old time in the first 90 days of employment how is that employee going to be any good in terms of his or her future career prospects having been treated in such a frivolous offhand way? The consequences in the case that I mentioned were extreme. They were the worst circumstances but they were real. That is actually what happened and the reason the mother came to the select committee was that she felt that young people should not be able to be disciplined by their employer without an adult being with them to support them in those circumstances. She pleaded with the committee regarding the Employment Contracts Bill. I know that Gerry Brownlee thinks there were no hearings on the Employment Contracts Bill but there were many— 
Hon Member 
: He wasn’t here then. 
Hon LIANNE DALZIEL 
: He was not here then. The point is that that woman came to Parliament because she seriously wanted us to think about the consequences of exposing young people to the sorts of individuals who may not have their best interests at heart.  
I am not someone who thinks that every employer is a bad employer. I worked in the trade union movement for a number of years and I dealt with very very good employers. In most instances employers were good to deal with. But because we represented our union members we represented the people who had not been sacked as well as the people who had been sacked and often we had to take that into account as well. We provided I think a good service to the industry as a whole. We took the industry’s needs into account and we certainly would not let young people be sacked like that without any sort of support surrounding them.  
This bill takes away the most fundamental rights of workers who need the most support from the State. Those people cannot negotiate away their conditions of employment around a 90-day probationary period. It is a joke to say that that is done by agreement. We know that the agreement they are offered is a “take it or leave it” one. The only choice that a lot of the most vulnerable workers will ever get is to “take it or leave it”. That is the choice they are offered—nothing more nothing less—and this measure is not good enough for the people that the Minister says she wants to protect under this legislation. It takes away rights.  
Yesterday was international Human Rights Day. 
AMY ADAMS (National—Selwyn) 
: 
 I move  
That the question be now put 
. 
The CHAIRPERSON (Hon Rick Barker) 
: The member cannot put the closure motion twice. 
DARIEN FENTON (Labour) 
: 
 Mr Chair— 
The CHAIRPERSON (Hon Rick Barker) 
: Excuse me members. I think I have made a mistake. When I was first here the rules were that one could not move a closure motion twice. The Clerk has now advised me that one can. Having said that I have given Darien Fenton the call and I feel obligated to allow Darien to complete her call. 
DARIEN FENTON 
: I thank the Minister of Labour for her answers although there were a number of questions she did not answer. [ 
Interruption 
] Mr Chair could I speak without that stuff? I have some serious questions I would like to address to the Minister. Her answers before about Part 6A of the principal Act just opened up a whole lot more questions actually. 
First of all the question about the ability to reduce the size of entities in order to exploit the law is not covered by Part 6A. It is about restructuring contracting out and so on. I would still like to know what the Minister intends to do to prevent deliberate avoidance of the requirements of her bill. 
Anther thing about Part 6A is that it deals with contracting out and a change of employer. I am very very familiar with this matter. I have worked really really hard on it with the Labour Party and with my former union. It is a very very important issue for low-paid vulnerable workers. What happens when a group of fewer than 20 workers is contracted out? Are they covered by the 90-day provision of this bill? That very very important question needs to be answered. 
The other thing is about the definition of “employee”. I did not quite get the Minister’s answer about that. She said that she went with the definition in the Employment Relations Act. I ask the Minister whether I am right. Was that her answer? Well actually it does not answer the question I had about how one calculates 20 employees. The Minister is really saying that an employee could be a casual worker working 2 hours a week. An employer could have 20 workers on 1 2 3 or 4 hours a week and none of them doing a full-time job. The employer could quite deliberately set up the workplace like that—so that he or she has 20 people instead of four people working full-time. That is another way to avoid the provisions of this bill. 
The other thing that came to my attention when I was looking up the definition of “employee” was the definition of “homeworker”. The Act states that homeworkers are people who work in dwelling houses—who provide a service within dwelling houses. I presume that they will be covered by this 90-day provision. Surely the Minister is not expecting people providing a service to an old lady or to somebody who is receiving accident compensation treatment to be able to make a decision about sacking someone and to go through the consequences including going to mediation including all the protections that the Minister says are there for these workers—whether they have been sacked for discrimination whether they have been disadvantaged and so on. Surely the Minister is not expecting somebody in that situation to be able to make a decision. Or is the Minister actually saying that homeworkers because they are covered by the definition of “employee” are also covered by the provisions of this bill? There are some serious questions there. 
I am genuinely concerned about the situation of people who are contracted out. One of the members opposite talked about contracting out and said that it was a consequence of not having the 90-day probationary period which I thought was quite ridiculous. Contracting out has been going on for years and years. Part 6A is there specifically to protect workers in that situation. I am deeply concerned that we might be opening up a whole new series of problems not just for teachers in schools but also for cleaners and caretakers in schools who are almost always contracted out—the majority of them are contracted out. There are definitely schools that have fewer than 20 workers. What happens when the employer changes when Spotless Services stops doing the cleaning and some other contractor comes in? Are those workers covered by the 90-day probationary period? It is a serious question and I would like an answer. 
Hon SIMON POWER (Deputy Leader of the House) 
: 
 I move  
That the question be now put 
. 
A party vote was called for on the question  
That the question be now put. 
Ayes 63 
New Zealand National 57; ACT New Zealand 5; United Future 1. 
Noes 55 
New Zealand Labour 43; Green Party 7; Maori Party 4; Progressive 1. 
Motion agreed to. 
A party vote was called for on the question  
That Part 1 be agreed to. 
Ayes 63 
New Zealand National 57; ACT New Zealand 5; United Future 1. 
Noes 55 
New Zealand Labour 43; Green Party 7; Maori Party 4; Progressive 1. 
Part 1 agreed to. 
The CHAIRPERSON (Hon Rick Barker) 
: Before I got on to Part 2 I draw members’ attention to Speaker’s ruling 60/6 where Speaker Hunt said that “a member has the right to speak more than once to a question [but] there is nothing to stop a member on his or her second or subsequent call from moving the closure motion.” A former leader of the Labour Party Mr Norman Kirk exhorted members to read a page a day of the  
Speakers’ Rulings 
 and as I have not been in the job 60 days I have not got up to ruling 60/6. I hope members will bear with me. 
Part 2 Amendments to principal Act 
Hon TREVOR MALLARD (Labour—Hutt South) 
: 
 Given that Part 2 is the substantive part of the bill—we have got past the minor procedural part and I expect the debate on this part to be proportional—I want to start running through some of the many amendments that Labour members are moving in order to clarify the bill and in fact to hold the Minister of Labour to account. 
We have canvassed substantially already in the debate on Part 1—and I thank the Chair for his generosity in letting us do that—the question of mediation. We had one explanation from the Minister but it was not adequate. It is clear that this bill uses the term “employee” for someone whose employment has been terminated. Clearly at the point that people’s employment has been terminated they are no longer employees. The substantive Act in the mediation section refers to a person in an “employment relationship”. Clearly an “employment relationship” can be a relationship that has broken down—the person is not an employee. The other important point is that that person then has the right to take a case through further stages whereas someone on one of these trial periods does not have the ability to do that. 
Another amendment in my name makes it clear that an employer cannot make a trial period provision a condition of employment. Basically if employers try to say “take it or leave it” they will fail. That was the problem with the Employment Contracts Act. Many employers had a “take it or leave it” contract. My amendment makes it clear that an employer cannot make a trial period provision a condition of employment. 
Another amendment makes it clear that the notice of termination has to be in writing. There is no requirement under the legislation at the moment to give the notice of termination in writing; it can be given verbally. This amendment makes it clear that it must be written. 
Another amendment makes it clear that there are some very limited requirements on employers before the personal grievance rights apply. There are a couple of things. The first is that if employers have a problem with employees they have to give them a note that says so and they have to give them some time to sort out the problem. If someone is on a trial period and it is clear that an issue is developing with the quality of that person’s work or within the employment relationship the employee is given a note that says so and is given a few days to sort the issue out. Again I think that is pretty minor and pretty reasonable. 
The next one requires that employees whose employment is terminated under the probationary period provisions are informed in writing of the reasons for that termination. That again is something that is fair. Assuming that the employees could go to mediation—and our argument is that at the moment under this bill they cannot—it gives them something to consider when deciding whether they should do that. 
Another of the amendments which my colleague Chris Carter will speak to fairly extensively later might be referred to as the “Anne Tolley amendment”. It is the one that makes it clear that people working within schools will be exempted from the probationary period provisions. I want to say as a former Minister of Education that I think about a third of schools have 20 or fewer employees and they are most often the schools that struggle to find teachers. They are often in remote areas they are often smaller schools and they are more likely to have boards of trustees that are involved in what might be described as parish issues or local dissent. Sometimes generations of dissent can be played out within the board of trustees. People sometimes can have a down on teachers. I think there will be a very real recruitment problem. There is already a recruitment problem in many of our smaller schools but this bill will add to the problems and it will drive down the quality of education within those schools. 
The effect of the amendment is to make sure that what Anne Tolley has committed to is incorporated— 
Hon Chris Carter 
: Promised at least twice. 
Hon TREVOR MALLARD 
: Promise commitment—she made it clear that people within schools would not be affected by this legislation; that there would be an exemption. We are trying to make sure that her promises are kept. 
The next amendment proposed is to ensure that the probation period applies to a position rather than a particular individual. This means that the trial period must be fully disclosed in the provision description and in the material given to applicants seeking the position. It also means that it cannot subsequently be added in. It also cannot be added into the employment description later in the process or into any subsequent employment agreement. This amendment makes the situation very very clear to people deciding whether they should apply for a position because it makes clear the intent of the employer—the employer’s choice I think it is fair to say—on this matter right from the beginning. 
I think it is fair to say that we have reasonable expectations of a reasonable Minister saying “Yes that’s what I promised.” All of those amendments are what the Minister promised and what she committed to and it is our expectation that she will look carefully at them and that there will be reasoned discussion. I say to the Minister that if she thinks that we have not quite got those amendments right if she thinks that they could be improved in the drafting that Mr Iles or his successors in these matters could give us a hand in order to make sure that this bill works better—that her intent and our intent are better reflected—then I am quite willing to have a discussion and to have amendments made to my amendments. In fact I would be happy for the Government to take over the amendments. It is not a matter of my getting credit for improving the bill; it is a matter of making sure that the bill is improved. 
There is an amendment that I think is relatively unlikely to be picked up by the Government but it is worth a crack anyway. The amendment is to change the wording in the heading of new section 67A inserted by clause 7 from “90 days” to “1 day” and within section 67A(2)(a) to delete the specified period of “90 days” and to substitute “1 day”. 
That is the first set of amendments to this bill. The proposal we have is that as an Opposition between now and about lunchtime tomorrow we will work our way through this set of amendments and then we will work through the second set which are focused on the latter part of Part 2. But I reiterate to the Minister through you Mr Chair that this part is the operative part of the bill. I think that is something that Mr Mapp accepts. This is the guts of the legislation. This is the only opportunity given the lack of select committee consideration for careful examination of the bill. It is the intention of Her Majesty’s loyal Opposition to be very very thorough as we work through it. 
Having said all of that again I want to make it clear that even if the Government accepts every single one of these amendments including the one that switches the trial period from 90 days to 1 day the Opposition— 
Hon Ruth Dyson 
: I don’t think so. 
Hon TREVOR MALLARD 
: The member does not think it is likely? Even if the Government accepts every single one of the amendments this legislation is wrong in principle and it is wrong in process and the Opposition will continue to vote against it right through all further stages. I want to make it clear that it is my understanding that so far 27 members of the Opposition would like to speak on this part. 
Hon Clayton Cosgrove 
: At least—at least. 
Hon TREVOR MALLARD 
: I am not saying they will speak only once—not 27 speeches but 27 separate members who would like to take a call on this bill. And by the time that we have finished with this part three more Labour members will have made their maiden speeches. 
Hon PHIL GOFF (Leader of the Opposition) 
: 
 This is the major part of the bill. This is a bill that of course quite unusually will not be going to a select committee. It is almost unheard of that a bill that would deprive people of fundamental rights would not go to a select committee. I therefore expect that the Minister in the chair the Hon Kate Wilkinson will this time answer the questions that were put to her repeatedly in Part 1 but that she failed to answer. If she does not answer them it means effectively that the Government accepts no accountability for what it is ramming through the House maybe by midnight tonight— 
Hon Chris Carter 
: No no—midnight tomorrow night.  
Hon PHIL GOFF 
: —or maybe tomorrow night if the Chair is fair and gives everybody on this side who wants to speak the chance. I am sure the Chair is fair Mr Chairman.  
The first question I want to put to the Minister is whether she sustains her argument that this bill benefits employees and does not in any way detract from their rights when we see in the new section 67A that an employee is precluded from taking a personal grievance or bringing legal proceedings in respect of a dismissal. I ask the Minister whether this means that a person who may have been dismissed absolutely unfairly without justice without any due cause therefore has no effective redress for that dismissal. Is that effectively what the bill does? If so how does she justify that in light of the fact that one of the most important things for any individual is his or her job and the ability to make a living? That is why we have employment relations legislation because the general principle is that nobody should be deprived of his or job other than for good cause and through following due process.  
Is the Minister saying that in the first 3 months of an employee’s employment he or she is to be denied that right? Is the Minister telling everyday New Zealanders that they can be sacked without good cause and they have no come-back? Is this really what the bill is about? If this is what the bill is about I ask the Minister how she can go around this House saying that this bill does not deny people of their rights.  
Secondly I ask the Minister whether she agrees with the Human Rights Commission that rushed legislation is potentially risky legislation and to answer the question of whether this legislation is rushed. If her answer is no I ask the Minister to explain to me why when the regulatory impact analysis team was asked to undertake an assessment of the adequacy of this legislation they said they could not do so because of the time frame. Can we assume from that that this is indeed rushed legislation? Can we assume that from the fact that this legislation was not mentioned in the Speech from the Throne and that this legislation was explicitly ruled out as being within the 100-day programme of the Government?  
If this legislation was not foreshadowed in this way—it was done at the last moment it was rushed and members did not see this legislation until 15 minutes to midnight last night—does the Minister therefore accept that the Human Rights Commission does have a very valid point that this legislation should go to a select committee for scrutiny? If the Minister’s argument is that there has been a bill already that looks like this a bill that went to a select committee last year can she explain that there is no difference then between a Government bill and a member’s bill that nobody expected to pass and indeed did not pass and was opposed by 80 percent of those making submissions and that therefore the stakeholders who have a vital interest in this legislation should be given the right to have a say on it?  
For example should not the Human Rights Commission which has expressed concern that this legislation would impact negatively on school leavers seeking their first job would have a negative impact on other vulnerable and disadvantaged groups wanting and needing employment have the right to make a submission? The Human Rights Commission is a serious agency in this country. It says that it believes that it should have the right to have its voice heard on this legislation. Why is the Minister therefore denying that body the right to make submissions? If the answer is that this legislation is so important that we need it as soon as possible given the fact that it does not come into effect until 1 April 2009 what is the Government losing by putting this to a select committee and still getting it through within the same time frame? Is the Minister not putting it to a select committee because the Government understands that its arguments in favour of this legislation are utterly unsustainable? Is that the real reason this legislation is not going to a select committee? 
I think it is only fair that serious questions asked genuinely be addressed by the Minister. Eight questions were put by me to the Minister on Part 1. Some of those questions have been repeated. The Minister might not be able to answer adequately because frankly we would not expect there to be legitimate answers to those questions but she should when she has to answer questions in the House at least make an attempt to answer those questions.  
On this side of the House our argument is that this clause denies fundamental rights to everyday New Zealand workers in their first 3 months of employment. I ask whether the Minister is really serious in saying that the potential employee has to agree to it first. Is the Minister telling the House that the bargaining power of the single individual employee desperate for a job will be the equal of the employer who says: “If you want this job you sign this agreement.” Is the Minister seriously telling the House that that is what she believes or will she own up to the House that there is no equity in the bargaining position between a single person desperately seeking employment—and one suspects that under this Government unemployment will get much worse—and the employer who can pick and choose? I think that that is a red herring; that is no safeguard. The Minister raises the question that the safeguard exists that a person does not forgo these rights if he or she works in a company that employs more than 20 people. But the Minister would have to admit that 97 percent of New Zealand businesses employ fewer than 20 people.  
I ask why it is good enough for a person in a big firm to have the protection but not good enough for the majority of workers in this country who work for small firms. Will the Minister acknowledge that none of the safeguards she says exist to protect workers’ rights have any substance at all? This Opposition is utterly opposed to people losing the fundamental right to have redress if they are treated unfairly. This Opposition is utterly opposed to the arrogance of a Government that for no good cause pushes this bill through under urgency without the scrutiny of a select committee and without New Zealanders having their normal democratic right to comment on something that will adversely affect them. 
Hon LIANNE DALZIEL (Labour—Christchurch East) 
: 
 I have in front of me the National Party policy on employment 
and workplace relations. I remind the Committee of what the Government said it would do before the election because I think the public have been led to believe in the debate tonight that the National Party made it perfectly plain what it was intending to do. Of course this measure is not on the 100-day post-election action plan. It is not mentioned on there at all.  
But let me look at the employment and workplace relations policy document. It says “National believes employment law should treat all parties fairly. It should: … Protect employees and employers. … Expand job opportunities for those having difficulty getting work—like young inexperienced people or new immigrants. … Increase flexibility. … Let businesses grow.” The policy goes on to talk about the “90-day trial period for new employees by agreement between the employer and the employee for businesses with fewer than 20 staff. During the trial period either party may terminate the employment relationship for performance without a personal grievance claim being brought.” That was what the Government said it would do before the election. But let me read the next line of National’s policy under that heading. It says “Good-faith provisions will still apply”. 
Let us look at the good-faith provisions of the Employment Relations Act. Section 4 of the Act states: “(1) The parties to an employment relationship … must deal with each other in good faith; and … must not whether directly or indirectly do anything—(i) to mislead or deceive each other; or (ii) that is likely to mislead or deceive each other. (1A) The duty of good faith … (a) is wider in scope than the implied mutual obligations of trust and confidence; and (b) requires the parties”—and I think this is the issue that the Minister should respond to—“to an employment relationship to be active and constructive in establishing and maintaining a productive employment relationship in which parties are among other things responsive and communicative;”.  
How on earth can taking away an employer’s obligation to have a reason for sacking somebody and to actually talk to an employee about expectations and explain to the employee what the employee needs to do to lift his or her performance as a normal probationary period would allow under the existing legislation be maintaining good-faith provisions? “Good-faith provisions will still apply”; that is what the National Party’s policy said before the election. So why is National now deciding that there should be no good faith in the first 90 days of employment? It is when the employment relationship is established that— 
Hon Member 
: Is he alive or is he dead? 
Hon LIANNE DALZIEL 
: Well somebody should wake that member up for goodness’ sake! That is a bit embarrassing but let us not mind that.  
The point I would make is this: the good-faith provisions actually require the parties to have a responsive and communicative relationship. If we are seriously talking about having a quality employment relationship then establishing expectations right from the outset is what matters the most. All that this legislation does is to encourage people not to talk to each other about what really matters to them because employees will say what they believe employers want to hear in order to get a job. They will have to agree to the 90-day period going in and we all know that that will be a “take it or leave it” option; it will not be anything more than that. And the bottom line is that National’s policy is given lie to by the bill that we have in front of the Committee tonight.  
In addition under the good-faith provisions of the Act in section 4(1A)(c) “an employer who is proposing to make a decision that will or is likely to have an adverse effect on the continuation of employment of 1 or more of his or her employees” has to give those employees “(i) access to information relevant to the continuation of the employees’ employment”. Employers do not have to do that under the 90-day bill. So I ask why did National in its policy state: “Good-faith provisions will still apply” when those members knew perfectly well that they were bringing in a 90-day period where no good faith applies at all? It is quite clear that National by including that provision in its policy document was not being up front with the electorate and that is a very good reason why this bill should go to a select committee. The public of New Zealand were told that yes the National Party would bring in a 90-day provision but that it would also retain good-faith obligations during that period. But no there are no good-faith obligations during that period at all.  
I want the Minister who as I understand it was responsible for the release of that policy to stand up and explain not only to the Committee but also to the people of New Zealand why National’s policy stated that good-faith provisions would still apply when in fact they do not apply in the 90-day period when somebody is just starting work.  
The other thing I want the Minister to respond to is the question that I raised in Part 1 and to also respond to the question that I raised in the first reading of this bill—that is if this bill is designed to get vulnerable workers into employment then what happens when it turns pear-shaped? What happens when an employer walks into an after-match function and sacks an 18-year-old for flicking a bit of ash on the floor—not that he or she would be able to smoke inside these days? But the point I am making is to ask why it is acceptable to allow that sort of thing to happen and then to allow that worker no rights—none; not one right at all. I cannot understand why the Minister believes it is important to argue a point that is so demonstrably wrong in those particular circumstances.  
It is the case that young workers who are entering their first job need to be well supported in that job in order to have the confidence to take up that particular career and continue in it in future. I believe that the Minister is quite mistaken in saying this legislation will expand job opportunities for those people who have difficulty in getting work—people like young inexperienced people or new immigrants. In fact those two groups of people will be the most disadvantaged by this legislation.  
Another question that I want the Minister to respond to is one about immigration visas. Of course an immigration visa may apply in the context of a work permit for a specific employer. If the employee has to agree to a 90-day provision in order to get the job and is then sacked then the visa no longer applies and that person has no right to work in this country at all. That is a serious problem which I think the Minister of Labour should respond to as well. As she is also the Associate Minister of Immigration she will of course have the answer at her fingertips but I say a specific work permit that applies to an individual employer cannot be transferred to another employer. That is the case unless it is an open work permit in which case the employee could move to another employer. But if the employee is on an employer-specific work permit that is relevant to one employer only then as soon as that person’s job is over so too is his or her right to work—gone. I think that is a very serious issue which the Minister should stand up and respond to. We could have dealt with that issue at a select committee hearing—but of course we are being denied the opportunity to give this bill the degree of scrutiny that it ought to have—because issues like that are important.  
National’s policy states that this measure is about helping young people and new immigrants and there is a very real question about the situation facing a new immigrant who is working under a work permit that is specific to a single employer and is not able to move on to another employer but who is forced to sign up to the 90-day agreement in order to get the job in the first place. If people think that not all migrants are in the position where they are vulnerable like that I tell them to think again because I know that many migrants will sign up to any conditions of employment just to get their foot in the door. It is the same case for young people who will agree to provisions that are not in their best interests because they have no other choice. I think the Government is prepared to say a “take it or leave it” approach is OK. 
SUE BRADFORD (Green) 
: 
 As mentioned earlier in the debate today I have tabled an amendment tonight to Part 2 introducing two new clauses—clauses 7A and 7B. These clauses are aimed at ensuring that people who are fired from their job under the provisions of this legislation cannot be subjected to the 13-week stand-down period that is provided for under section 60H of the Social Security Act 1964. The Minister has continued to assure me in the House that it is not in fact the Government’s intention to have this double jeopardy happening to people who are dismissed under the 90-day rule but I am not convinced completely by what she has said so far.  
I will summarise again the reasons why the Greens believe that the amendment we have on the Table tonight is necessary. At the moment Work and Income has the power to impose a 13-week stand-down on anyone who has been fired from his or her job for misconduct. However there is some protection for sacked workers at the moment because if a person takes a case to the Employment Relations Authority or the Employment Court a benefit can be paid until or unless the authority or the court finds against the worker in terms of stating that the misconduct allegations are proved. 
If the misconduct allegations are not proved the worker keeps the benefit; if they are proved the benefit has to be paid back and that is fair enough. Once the Employment Relations Amendment Bill comes into effect this back-up protection will no longer exist as sacked workers in enterprises with under 20 employees will have no recourse to the authority or the court during their first 90 days on the job. Therefore if workers are let go for misconduct how are they to find any justice when they report to Work and Income? Will the case manager as part of his or job then have to investigate and judge the facts of that particular employment case or grievance—whatever we call it—in the way the Employment Relations Authority would have done up until now? I do not think case officers working for the Ministry of Social Development are likely to have the training time or competence to carry out the sorts of functions that the Employment Relations Authority currently does. I believe that in fact they are far more likely to simply take the word of the employer accept the allegation of misconduct and deprive the applicant of any right to an unemployment benefit for the next 13 weeks.  
This adds a double jeopardy to this bill making it even more ill-considered and unjust for some workers than I believe the Minister of Labour originally intended. On top of this as far as I can ascertain the existing clauses of the bill we are considering tonight do not give an employee any right to be told why he or she is being dismissed. This will increase the problem for people applying for the unemployment benefit in these circumstances some of whom may well end up with no clear information whatsoever to give Work and Income when they are asked why they have lost their job. In the absence of any clarity or proof I feel that Work and Income case officers may at least sometimes apply stand-downs based on confused or no information. This is because case officers at times—not universally but at times—act in quite a prejudiced way towards beneficiaries.  
Welfare law is itself a nightmare of confusion. The consequence of this bill becoming law in its current form will be to add yet another layer to that confusion that the poor Work and Income staff have to deal with. Experience tells me that it is usually the beneficiary who misses out if there is any doubt at all in the granting or declining of benefits. This amendment from the Green Party is an attempt to address one part of the imbalance that is being created by a bill that strips new workers of their rights to contest unfair dismissal. I invite all parties in this House who believe that all workers deserve the right not to suffer twice over as a result of the implementation of this legislation to vote for the Green Party amendment. 
SUE MORONEY (Labour) 
: 
 In rising to debate Part 2 of the Employment Relations Amendment Bill I must say that it feels like being in a bit of a time warp because the last time a new National Government came into power one of the very first things it did was to strip away workers’ rights and it is happening again. Last time the National Government did it with the Employment Contracts Act but even then its members stopped and paused to listen to what the public had to say. Even back in the bad old days of the Employment Contracts Act at least there was a select committee process. This time workers’ rights are being stripped away without any recourse for the public to say what they think about it. It is just like being in a time warp and Part 2 is the mechanics of how exactly workers’ rights are being stripped away once again by an incoming National Government in its first 100 days.  
Did National members ever warn us that it was going to happen in the first 100 days? No we did not learn that it was not on the list that was published before the election when John Key said—and I will just double-check and I may table this copy of the 100-day action plan later because it is definitely not on the list.  
I start with clause 6 because this actually amends the current provision for probationary periods. That is right ladies and gentlemen. In the current Act of Parliament there is already a provision for probationary periods. That is why clause 6 in Part 2 of this bill amends the probationary period that is already in the Employment Relations Act. The bill amends it by taking the words “or trial” out of it. Suddenly it is not a trial it is just a probationary period. I ask how that changes anything. I would like the Minister to tell us exactly how taking the phrase “or trial” out of the current Act actually changes things. I suspect that this is a further stripping away of workers’ rights but I do not understand what the implications are. I would like the Minister to answer that question addressing clause 6 in Part 2.  
I move on to clause 7 because this is where it really starts to get down and dirty. This is where workers’ rights are actually stripped away and I can understand this part. First of all it talks about the trial period being for 90 days or less. I wonder whether it is any coincidence that the Employment Relations Act also has another time frame in it that fits inside of this. It is the ability for workers to decide to join a union and thereby stay on the collective agreement within the first 30 days of their employment. I think this is an important time frame to think about because when employees are first employed under the Employment Relations Act they automatically go on to a collective employment agreement if one exists in their workplace. If they want to stay on that collective employment agreement they must join the union within the first 30 days of their employment.  
Perhaps I am being a little suspicious but it seems to me that the reason 90 days is the probationary period is that it fits outside of the 30-day period so that employers can use this bill to discriminate against workers who decide to join a union. We will never know the answer to that I say to the Minister because under this bill employers do not have to give a reason at all. They just have to say: “Sorry don’t turn up tomorrow. Don’t come Monday—DCM.” That is what this bill should be called the “Don’t Come Monday Bill” because in fact that is all that employers have to tell them—to not turn up to work again. They do not have to give workers a reason they do not have to say: “It’s not because you weren’t performing properly; it’s because you joined the union and I didn’t like that.” There are a whole range of reasons that employers will be able to use to discriminate against employees and those are just some of them off the top of my head.  
The other thing covered by this part of the bill is mediation. I know that the Minister has made some deal about mediation being put into this bill. Those of us who have been practitioners in this area know a little bit about mediation and we know why mediation works. It does work. It is extremely effective. Mediation is effective because all of the parties to mediation know that there is another part of the process that if they do not commit to coming out with a good-faith process of mediation there is potentially a personal grievance procedure they can go on to and other remedies that can be sought under the Employment Relations Authority. That is why mediation can be very effective in sorting out these issues because both parties know that if they cannot sort it out at mediation there are other legal remedies and further steps where those things can be resolved—but not under this bill.  
This is the really important part because this in my humble view is where the rights of workers get completely stripped away in the first 90 days if they work for an employer with 20 or fewer employees. It is in clause 7 which inserts new section 67B in the current Act. I will read out new section 67B(3) for anyone who is listening to this debate and who may be in any doubt whatsoever that the rights of workers are being stripped away by this bill and I ask them to contemplate subsection (3) of new section 67B. This is the actual wording: “Neither this section nor a trial provision prevents any employee from bringing a personal grievance or legal proceedings on any of the grounds specified in section 103(1)(b) to (g).” What it does tell us is that employees employed in a small workplace will in the first 90 days of employment lose the right that every other worker in this country has to bring a personal grievance or to go to the Employment Relations Authority. That is what they actually lose and that is taking workers’ rights away.  
I think the timing of bringing this in—[ 
Interruption 
] ACT Party members might find that very very funny. They may actually think that the situation of workers at their most vulnerable time is funny—the first 90 days of their employment when they are trying to learn the culture of the workplace understand their job and come to grips with all the health and safety provisions and all the regimes that happen in those first 90 days. They may think that it is incredibly funny that they will not have their full rights in place but that period is the very time when people do need to have their full rights in place.  
I particularly want to argue the case for young workers and those experiencing their very first job. Of course I want no one to be fooled into thinking that this bill applies only to people experiencing their very first job because it does not. It affects anyone who changes job and it applies for the first 90 days of that employment where his or her employer has 20 or fewer workers. But it is young workers primarily for whom this will be the most difficult. As a parent of young children I do not want my children to be exposed to this because I know that when they are very very nervous and new to the workplace they will want the opportunity that every other worker has which is to have properly explained to them what they may be doing wrong and let them understand what the culture of the workplace is; this bill actually stops those conversations from taking place. 
The other point I would like to mention quickly—because I think it does need serious consideration by the Committee—is the very good proposed amendment that has been put forward in the name of the Hon Trevor Mallard to ensure that teachers be exempted from the probationary period provisions. I know that members of the Government have argued that they are not employees in places of 20 or fewer employees but that is not the view of the New Zealand Educational Institute. The institute which actually negotiates the employment agreement for teachers says that they will have this bill applied to them. I want to ensure that the Employment Relations Amendment Bill does contain this very very good amendment that has been put forward in the name of the Hon Trevor Mallard to insert new section 67C “Teachers to be exempted from probationary period provisions”. I would also like the Committee to consider other groups of workers that may need that protection as well. I had not thought previously of teachers as being particularly vulnerable groups but clearly they are. It has been in the debate. 
Hon Trevor Mallard 
: Anne Tolley said they were. 
SUE MORONEY 
: Perhaps they will be under a National Government. Perhaps that is what she meant. Perhaps Anne Tolley was making a prediction that teachers will become vulnerable under a National Government. 
Hon CHRIS CARTER (Labour—Te Atatu) 
: 
 I rise firstly to ask the Minister in the chair Kate Wilkinson why she would not support my colleague Trevor Mallard’s amendment that exempts teachers from the probationary period and inserts a new section 67C in clause 7. 
As many members of this Committee will know until a month or so ago I was privileged to be New Zealand’s Minister of Education. During the election campaign I also was privileged to be Labour’s education spokesperson and I occasionally had the opportunity to debate with Mrs Tolley National’s new Minister of Education. Sadly she would never appear on television or on Radio New Zealand National with me. I am not sure why. Perhaps she was a little bit nervous about it. But she did come to the occasional New Zealand Educational Institute meeting. 
One of the meetings was held in Rotorua where I was ably represented by my colleague Steve Chadwick. We saw on the Television One programme  
Tonight 
 the hapless Mrs Tolley saying at that Rotorua meeting that teachers would be exempt from the 90-day trial period. I understand that Mrs Tolley came into the Chamber earlier this evening and denied saying what all of New Zealand had seen her say on the Television One programme  
Tonight 
. I can also say unequivocally that when Mrs Tolley and I attended a New Zealand Educational Institute meeting in the Epsom electorate she said when asked a question about support staff in schools—not teachers; the people who do invaluable work supporting students and teachers in their quality teaching and learning— 
Hon Gerry Brownlee 
: I raise a point of order Mr Chairperson. I wonder whether you would consider whether the contribution from the member addresses Part 2. 
Hon Trevor Mallard 
: Mr Chairperson an amendment that certainly has not been ruled out by you or by anyone else in the Chair goes to the very question of whether teachers should be covered. It is known on this side of the Chamber as the “Tolley amendment” because it attempts to ensure that she is not made a liar by her colleagues on the other side of the Chamber. 
The CHAIRPERSON (Eric Roy) 
: At this point the member who has the call has not contravened any of the institutional expectations of Parliament. The member who just spoke to the point of order did I believe in a roundabout way—[ 
Interruption 
] I am ruling on this. You can shake your head but we are not going to get into any usage of words that are not accepted in this Chamber. I am not going to rule out the direction the member is going in as long as he ties it to the amendments that he mentioned. But he should be very cautious of what words he might use in that regard. 
Hon CHRIS CARTER 
: I am just reinforcing the rationale behind why I believe the Minister should support Mr Mallard’s amendments. I will continue. Mr Brownlee may have intervened to protect Mrs Tolley’s reputation. He should save that for question time where I will look forward to questioning and exploring this issue further. 
I can say unequivocally that when I was present at a New Zealand Educational Institute meeting in the Epsom electorate Mrs Tolley in response to a question on whether support staff would be included in the 90-day period said they would not. Today as we look at this legislation we can see that they and teachers and other staff working at schools are included. We were told by the National Party during the election that it was time for a change. Well this is not a change that the education sector was expecting. In fact it is a change that the sector was told by Mrs Tolley would not happen. 
Earlier tonight while working in my room but listening to the debate—as I am sure all members throughout this building are doing—I heard John Hayes the National MP for the Wairarapa area say that this trial period could not possibly apply to teachers because teachers are employed by the Ministry of Education. That is the level of ignorance of in his case a quite experienced and senior National Party MP! I have to say to him that teachers are employed by boards of trustees. Boards of trustees will now have the right to sack a teacher in the first 90 days of his or her employment. That is not something that schoolteachers were expecting thanks to Mrs Tolley. 
Indeed my colleague Sue Moroney read out earlier this evening—and in a few minutes I might reinforce what she was talking about—the release put out by the New Zealand Educational Institute expressing its deep concerns about its inability to discuss this legislation. All New Zealanders who are listening to the debate or who have any interest in what is happening in their Parliament are seeing this legislation being rammed through Parliament with no chance for teachers workers employers or anybody else who has an interest in the legislation to have an input. I have to say that every New Zealander should be passionately interested in this legislation because it will touch the lives ultimately of every one of them. Nobody in our country has the chance to have an input into it least of all teachers who when this legislation is passed will be trapped into having a period of insecurity. 
My colleague Mr Mallard who like me was privileged at one time to be a Labour Minister of Education talked about the impact of this legislation on our schools and early childhood centres. We have about 2600 schools in this country of which about 30 percent—about 800—have fewer than 20 employees. 
HEKIA PARATA (National) 
: 
 I move  
That the question be now put 
. 
Hon PETE HODGSON (Labour—Dunedin North) 
: 
 I would like to associate myself with the comments made by all my colleagues on this side of the Chamber in the debate thus far. I do not think this legislation is in any way good. I do however want to constrain my own remarks to some things that are a little bit technical and I would like to engage the assistance of the Minister in the chair Kate Wilkinson if I could. I have previously given the Minister an indication that I want to raise these matters. 
They come to the issue of what happens where the employer changes in the course of the 90-day trial period. What happens if the employer changes in the course of the 90 days? There are several threads to it. The first thread is covered somewhat by the legislation. The Minister would probably point out to me that new section 67A(4) in clause 7 states: “ ‘Employer’ means an employer who at the beginning of the day on which the employment agreement is entered into” and in a sense begins to cover the issues that I would raise. Further if one goes to Part 6A of the principal Act as I am sure the Minister has done one sees that it is about contracting out contracting on beyond that flexible working provisions continuity of employment and so on. I have recently refamiliarised myself with that part of the legislation. 
But I note that section 69J if the Minister would be good enough to turn to it states: “(1) The employment of an employee who elects to transfer to a new employee where that employment is to be treated as continuous”. Subsection (1) is a grab-all and it says that everything is held safe—including the ticking of the 90-day clock one assumes. But in subsection (2) there is a series of avoidances of doubt. One of them is all to do with holidays. One of them—by now we are up to section 69J(2)(b)—is all to do with Parental Leave and Employment Protection Act 1987 stuff. I wonder whether any harm would be done by adding a subsection that saved the provisions of this bill; that made it explicit beyond any doubt that new sections 67A and 67B were saved in section 69J of the principal Act. I hope that I am making some sense. 
Hon Member 
: You are to me. 
Hon PETE HODGSON 
: Well we must avoid the possibility and I am sure the Minister would want to avoid the possibility of the clock starting to tick in any unforeseen circumstances. Notwithstanding the wording of clause 4 I wonder whether the Minister would contemplate adding a saving clause to section 69J. 
That leads me to another point. I think it is covered but I am not sure. In the course of the 90 days the employer might change in a variety of ways. The partnership might change the business might be put up for sale lock stock and barrel there might be changes in the shareholding that are substantial enough to create what might be called a new business or the business might be split in a manner in which the resulting businesses or one of them has fewer than 20 employees. I am not an expert on the Employment Relations Act. I held the portfolio some long time ago. My understanding is that the architecture of the Employment Relations Act is such that it is not size-specific. The size of the company is not a feature of any of the sections or parts of the Employment Relations Act. Therefore when the original Act was being put together no consideration had to be given to what would happen if a company became a smaller company a larger company or whatever. The people who were drawing up the legislation did not have to consider that. 
My proposition is that this bill for the first time creates a size difference: employers who employ more than 20 and employers who employ fewer. Mr Chair I will sit down in just 30 seconds— 
Hon Parekura Horomia 
: No don’t! 
Hon PETE HODGSON 
: Well I think the Minister wants to take the floor. I think that because this is the first time that the size of a business has been added to the legislation we ought to be very careful that there are no unintended consequences. I for one am not sure that we have got that covered. I wonder whether the Minister would be prepared to offer her remarks. 
Hon KATE WILKINSON (Minister of Labour) 
: 
 Just to answer the member Pete Hodgson’s question—and I thank him for his question—if one looks at new section 67A(4) in clause 7 one sees that it triggers the employment relationship. It states: “ ‘Employer’ means an employer who at the beginning of the day on which the employment agreement is entered into employs fewer than 20 employees.” That is the triggering date. In relation to Part 6A of the principal Act because a transferring employee if one likes must transfer on the same terms and conditions it would not be possible for the new employer to impose or ask for a new condition—namely a trial period. I trust that that answers or addresses some of the Minister’s queries. 
Hon PETE HODGSON (Labour—Dunedin North) 
: 
 I raise a point of order Mr Chairperson. I am sorry to disturb the Committee’s progress but I just want to ask whether the advice of the Minister will be read into  
Hansard 
. I cannot remember whether the proceedings of the Committee of the whole House under urgency are recorded in  
Hansard 
. 
The CHAIRPERSON (Eric Roy) 
: Yes. 
Hon PETE HODGSON 
: Thank you. 
MELISSA LEE (National) 
: 
 I move  
That the question be now put 
. 
Hon PAREKURA HOROMIA (Labour—Ikaroa-Rawhiti) 
: 
 We can be thankful that Minister Tolley has gone public in suggesting that teachers will be not involved in this legislation. It certainly shows like the Maori Party’s move to vote against this legislation that people are making a strong effort to do the right thing. I suggest to the Minister that her starting to adjust this heavy-handed legislation is one of the most outstanding things that she will do in her career. 
What is certainly interesting is the issue of doubt in that it is one-sided and that side is the employer’s. The two provisions are section 67A(2)(b) and (c) in clause 7. Paragraph (b) states: “during that period the employer may dismiss the employee;”’. I am not too sure about the talk about adjusting by amendment or by one of our amendments in relation to this issue. 
The removal of personal grievance rights and any legal proceedings within the 90 day trial period is quite staggering—quite staggering. Thousands of young New Zealanders this week—today and tomorrow I think—are on the cusp of getting on the highway of employment. It is fascinating that Minister Tolley has focused on teachers. I have heard our very learned past Minister of Education Chris Carter suggest that he does not think that what she said is true. I think somebody should put a lot of effort right now into talking to a whole lot of the students who are about to go into employment. Somebody needs immediately to spend a lot of time telling them that if they are about to be employed by an employer with 20 or fewer employees they had better understand that for the first 3 months they cannot be sure and neither can their employer be sure that they have job security for the future. It is a new addition to the career choices of a lot of our students. That is the nonsensicalness of this adjustment. One does not have to be a rocket scientist to understand that it is an attack on the collective and certainly tries to disengage people from their right to union support and to the support of anybody else. 
We have heard continually today that organisations including Business New Zealand do not think this bill is a good idea. What I have struggled with in listening to the discussions tonight is the idea that it is to the benefit of employees in that it will mean that more employees are taken on. In the sense of the current recessionary tensions how can that be so? I look across at Mr Lindsay Tisch and think about when he and I dared to work together on things like Be Your Own Boss—“Be Your Own Future” be whatever. Lindsay would charge around in his car advising people in communities how not to get put out of work. We created things like Company Rebuilders for businesses that had started to collapse. That was a lesser situation compared with the recessionary impact of global activity at this period of time. 
New section 67A(2)(c) states: “if the employer does so the employee is not entitled to bring personal grievance or other legal proceedings in respect of the dismissal.” That is incredible given this country’s history. That is just outrageous. Simon Power would not agree with it. It is more than stripping away people’s rights; it is an addendum and an addition to all those things that National including Simon Power voted against. What did National vote against? There has been a lot of waffle about mana enhancement. 
John Hayes 
: There is a lot of waffle right now! 
Hon PAREKURA HOROMIA 
: I tell Mr Hayes that there has been a lot of waffle in relation to the enhancement of employers. 
AMY ADAMS (National—Selwyn) 
: 
 I move  
That the question be now put 
. 
Hon CLAYTON COSGROVE (Labour—Waimakariri) 
: 
 I want to raise two points. The Minister in the chair the Hon Kate Wilkinson is bereft of any ability to answer questions for some reason. 
My colleague Lianne Dalziel who is a former Minister of Immigration as I am raised a very important point as to what the immigration status would be of migrants on an employer-specific work permit who are sacked and have no right to work. The Minister of Labour is also the Associate Minister of Immigration. She has very learned officials—I know that because they worked with my colleague and me—sitting around her. They are very professional learned legal officials. If she does not know the answer she has the ability to turn to her right and ask them. 
This issue will affect many thousands of migrants in New Zealand and it will determine the choices and decisions of migrants who are thinking of coming to New Zealand. A genius on the other side of the Chamber earlier in the day rubbished the point made by one of my colleagues—I think it was Lianne Dalziel—that there are migrants for whom this bill will determine their decision whether to come to New Zealand because if they are on an employer-specific permit their permit will be negated or in jeopardy if they are sacked. I would have thought that given that there is no select committee process the bill is being rammed through the House and there is an inadequate regulatory impact statement it was reasonable of the Opposition to ask a question about something that is incredibly important to the economy of this country and that is what happens to the status of migrants. I would have thought that was a reasonable question. A colleague put it forward and I put it forward again. 
The other question I ask goes back to the points made by Mr Carter and other people about teachers. We know that Anne Tolley made a commitment that this bill does not apply to teachers. I remember during the election campaign raising the same issue in my own electorate at the Rangiora War Memorial Hall with this Minister—or member as she was then. I think Mr Carter or Mr Mallard outed Ms Tolley and then outed Ms Wilkinson in respect of their responses on this issue. We got a lot of waffle from Ms Wilkinson as a candidate then; we never got an answer. If we look at the background we see that Ms Tolley the Minister of Education said that the bill would not apply to teachers we had an election campaign where Ms Wilkinson said it would apply and the bill itself makes no exemption for teachers. Then we read new section 67A(4)—in clause 7—which simply states: “ ‘Employer’ means an employer who at the beginning of the day on which the employment agreement is entered into employs fewer than 20 employees.” 
Well there is a school in my electorate called View Hill School. It is a two to three teacher school. I will have to go to that school next week and tell the board and the staff that this legislation will apply when they employ a new teacher. From time to time Ms Wilkinson resides in the same patch that I do. I would like to know whether she went to View Hill School and told them that. I am going to tell them and I am sure they will be shocked about it. I would have thought she would have a skerrick of decency and would get on her feet and answer that question. There are thousands of teachers trainee teachers and boards of trustees waiting for an answer—I think Mr Mallard said a third of schools have fewer than twenty employees—and I would have thought she would exercise her professional responsibility to get to her feet and clarify the situation. If she will not do that then she has answered the question and we know what to do on Monday morning before schools break up for the holidays. 
If it is the case that the bill applies to teachers it was never signalled. That is a broken promise made by this Government because the former spokesperson on education now the Minister— 
Hon David Parker 
: Add it to the list. 
Hon CLAYTON COSGROVE 
: —“Add it to the list.” my colleague says—made an absolute commitment on tape on YouTube or on whatever it was—[ 
Interruption 
] It was on Television One tonight? I did not see the news. If that is the case should not that Minister be exercising her professional duty to get off her backside get on her feet and actually clarify the situation? 
John Hayes 
: Come on have some decorum! 
Hon CLAYTON COSGROVE 
: I am sure Mr Hayes would like to go to his schools. I am sure he will have his teachers— 
Hon Parekura Horomia 
: They don’t know him over there! 
Hon CLAYTON COSGROVE 
: Oh they do not know him—OK. I would have thought those members would say that it was fair enough to put that question—and the immigration question—to the Minister. They have been put and put and put by Opposition members and we see the arrogance of the Minister who after only a couple of weeks in the job will not get up and answer those simple questions. There is no politics in them; these are questions that we need answers to. 
KANWALJIT SINGH BAKSHI (National) 
: 
 I move  
That the question be now put 
. 
Hon DAVID PARKER (Labour) 
: 
 This part of the legislation is being presented as being for the benefit of employees. The Minister in the chair the Hon Kate Wilkinson has said that this part is in the interests of employees and that it is being done for their benefit. I want to discuss that proposition because it seems to me to be a ludicrous suggestion that is mere cant designed to hide the agenda of the National Government. This is truly for the benefit of employers and for those whom National does not want to offend. It hits not all employees but only the least powerful ones. This is like the National Government saying that a lower minimum wage is better for low-paid workers. It is the same sort of logic—[ 
Interruption 
] I did not hear that I am sorry Dr Cullen. It is like the idea of lower minimum wages for the benefit of low-paid workers. It is that same sort of nonsense being visited again on the least able to advocate for their own interests.  
If National thought this was for the benefit of employees why has it not made it compulsory for high-paid employees? It is effectively compulsory for low-paid workers because they are not in a position to contract out of this; they effectively have to take what they are given because they are not powerful people. They are not highly skilled; they do not have the ability to go to their employer and say: “There’s only a few of me around. You’ve got to employ me. I’m not going to put up with that condition.” Low-skilled workers do not have that same power; they are forced to take the conditions that are being offered by the employer and that includes the ability now to sack them within 90 days.  
If that is good for low-paid workers effectively on a compulsory basis because they do not have the ability to contract out of it why is it not compulsory for high-paid people? This is clearly for the benefit of employers. We should take away this nonsense that it is somehow for the benefit of the vulnerable. It is not for the benefit of the vulnerable; it is for the benefit of employers. It is not even for the benefit of all employers; it is effectively for the benefit of bad employers. But National is happy to scratch that itch. It is happy to try to keep those people happy but it is not willing to be honest about what this is which is that it is compulsory for the most vulnerable workers. National is not willing to visit that compulsion on the people who would vote for the National Party. I am talking about higher-paid people who are in a position to contract out of it and will contract out of it. No it is not forced upon them; it is forced only upon the vulnerable.  
To hear the Minister trying to dress this up as being for the benefit of the people who are being abused by this change to the legislation is detestable. I really do think that in terms of logic it does stand up there in the same way as the old National habit of never increasing the minimum wage. How often did National increase the minimum wage during 1990s? Once. 
Hon Lianne Dalziel 
: By 87c. 
Hon DAVID PARKER 
: Yes. It increased it by 87c over that long period and low-paid workers went back in real terms. 
Hon Trevor Mallard 
: We did it by $5 over 9 years. 
Hon DAVID PARKER 
: Yes. There was a $5 increase in the minimum wage during the tenure of the Labour-led Government. That is the difference between the National Party and the Labour Party. Under Labour all people went forward. Their terms and conditions of employment were improved and that included the vulnerable and also the better-off. Under this legislation which the Minister has the temerity to pretend is for the benefit of low-paid workers the low-paid workers are the ones who suffer. It is not for their benefit. National is not willing to admit that it is effectively compulsory for low-paid workers who are not able to advocate their position. National is not willing to follow through on that same principle and make it compulsory for higher-paid workers—which would also be wrong. But the reason National members are not willing to make that principle clear is that those people are National voters they think. They do not want to offend them but they are willing to offend and undermine the interests of the most vulnerable in our society—the lowest paid. 
JOHN HAYES (National—Wairarapa) 
: 
 I move that the motion be now put. 
The CHAIRPERSON (Lindsay Tisch) 
: That was not— 
Hon Trevor Mallard 
: I raise a point of order Mr Chairperson. In case you were inclined to accept the closure motion I point out that it was of course put in the incorrect manner. 
The CHAIRPERSON (Lindsay Tisch) 
: I thank you. I heard what the member said. 
Hon CHRIS CARTER (Labour—Te Atatu) 
: 
 I rise again to reinforce to the Minister in the chair the Hon Kate Wilkinson that Mr Mallard’s exemption is on the Table at the moment. It seeks an exemption for teachers from the 90-day clause and this is really important. 
As I said earlier some 30 percent of our schools have 20 employees or fewer. When Labour came into Government in 1999 60 percent of our schools had 20 employees of fewer but thanks to our wonderful staffing endowment of 1:18 then 1:15 and extra staff for learning support we have seen the number of small schools drop. Nevertheless 30 percent of our schools—about 800 schools—have 20 employees or fewer. Finding staff for these schools has been a very difficult issue which the National Party has often raised in question time: how difficult it is to find quality teachers for rural remote and small urban schools. But how will this legislation impact on that? It will impact in a very negative way. 
In addition to these 800 or so small schools we have about 5000 early childhood education centres or ECEs. These have also expanded enormously with our 20 free hours’ policy and with over a billion dollars in investment in new capacity in early childhood learning. As every member here knows and supports getting children into early childhood education is the best and most effective thing we can do to set them on a successful learning path. It avoids all of those other issues we are so exercised about such as crime underachievement unemployment and so on. What happens to these early childhood education centres? At the moment there is a chronic shortage of staff. Yes we have invested in capacity. Yes we have invested in salaries. We are rapidly trying to train young people to go into the early childhood education sector. 
But what sort of message will this legislation send out to those young potential teachers wanting to go in? They are being told that sure they will have to do their 3 years’ training and be assessed professionally but if the principal or the board of trustees do not like them and if in some way they do not fit in then they are out. When Mr Mallard spoke earlier he talked about how often in isolated communities issues that might not exercise us very much become very divisive. Often a board of trustees is dominated by one family or one group. I have had to deal over my desk as Minister of Education with some very unpleasant and unhappy situations in schools where we have had to put in statutory intervention. If there was an extra capacity for a board of trustees or a principal to sack teachers for no reason whatsoever—remember under this legislation it is not required to give a reason—then that sort of abuse could easily happen. 
This legislation will be a barrier to recruiting staff particularly principals and as we all know the principal is the key to a successful school. It is getting harder to attract principals into rural areas and small failing schools. Every member here can probably think of his or her own electorate where there is a school that is perceived by the community as not being successful. The way of turning those schools around is to get the best type of principal possible but this legislation gives a board of trustees the ability to sack a principal. 
Earlier we heard the rationale from National speakers that this was a new opportunity to get people into employment and that employers would take new migrants and young people who are currently unemployed. I have to say to the Minister that the process of a person becoming a teacher is a rigorous process. There is a training period. There is a 2-year probationary period. Teachers are required—and Mrs Tolley probably does not know this—to have a yearly assessment against professional standards. There is a standard for beginning teachers a different standard for fully registered teachers and another one for experienced teachers. There are lots of mechanisms in place to make sure that the teachers in our schools are professional competent and doing their jobs and if they are not there are mechanisms to remove them.  
I was a teacher for many years. I was privileged to be the Minister of Education and my partner is a school principal so this is a sector I know very well. I say to the Minister that I cannot see how this legislation will positively impact on employment in schools. 
Hon SIMON POWER (Deputy Leader of the House) 
: 
 I move  
That the question be now put 
. 
A party vote was called for on the question  
That the question be now put. 
Ayes 63 
New Zealand National 57; ACT New Zealand 5; United Future 1. 
Noes 54 
New Zealand Labour 43; Green Party 6; Maori Party 4; Progressive 1. 
Motion agreed to. 
Hon TREVOR MALLARD (Labour—Hutt South) 
: 
 I raise a point of order Mr Chairperson. I am sorry to interrupt but we cannot tell which of the amendments you are referring to. I think you need to refer to the italics in order to make it clear. 
The CHAIRPERSON (Lindsay Tisch) 
: There is only one amendment to the heading of new section 67A and that is what I have referred to. 
The question was put that the following amendment in the name of the Hon Trevor Mallard to clause 7 be agreed to: 
to omit from the heading to section 67A “90 days” and substitute “1 day”. 
A party vote was called for on the question  
That the amendment be agreed to. 
Ayes 54 
New Zealand Labour 43; Green Party 6; Maori Party 4; Progressive 1. 
Noes 63 
New Zealand National 57; ACT New Zealand 5; United Future 1. 
Amendment not agreed to. 
Hon TREVOR MALLARD (Labour—Hutt South) 
: 
 I raise a point of order Mr Chairperson. Could you now inform us which of the two amendments that refer to new section 67A we have voted on? Is it the one that makes it clear that an employer cannot make a trial provision a condition of employment or is it the one that changes the maximum trial period to 1 day? 
The CHAIRPERSON (Lindsay Tisch) 
: It is the amendment in the member’s name to the heading of new section 67A.  
Hon TREVOR MALLARD 
: So that is the maximum trial period one? Thank you. 
The CHAIRPERSON (Lindsay Tisch) 
: The next amendment in the name of the Hon Trevor Mallard is to new section 67A(1). 
Hon TREVOR MALLARD (Labour—Hutt South) 
: 
 I raise a point of order Mr Chairperson. Are you putting the vote on the Supplementary Order Paper or the amendment to the clause? You called it on the amendment to the clause but not on the Supplementary Order Paper. Are you doing the full thing as one or will we have a clause by clause new section by new section vote as part of the amendments that are before the Committee? I am happy of course to do it section by section but normally we do it Supplementary Order Paper by Supplementary Order Paper. 
The CHAIRPERSON (Lindsay Tisch) 
: This is an amendment to new section 67A(1) in clause 7. 
The question was put that the following amendment in the name of the Hon Trevor Mallard to clause 7 be agreed to: 
to insert in section 67A(1) after “as defined in subsection 4” “(subject to the process in section 67AA.” 
A party vote was called for on the question  
That the amendment be agreed to. 
Ayes 54 
New Zealand Labour 43; Green Party 6; Maori Party 4; Progressive 1. 
Noes 63 
New Zealand National 57; 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 7 be agreed to: 
to omit from section 67A(2)(a) “for a specified period (not exceeding 90 days)” and substitute “for one day”. 
A party vote  was called for on the question  
That the amendment be agreed to. 
Ayes 54 
New Zealand Labour 43; Green Party 6; Maori Party 4; Progressive 1. 
Noes 63 
New Zealand National 57; 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 7 be agreed to: 
to insert in section 67A(2)(c) after “in respect of the dismissal” “(subject to the process in section 67AA”. 
A party vote  was called for on the question  
That the amendment be agreed to. 
Ayes 54 
New Zealand Labour 43; Green Party 6; Maori Party 4; Progressive 1. 
Noes 63 
New Zealand National 57; 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 7 be agreed to. 
to insert in section 67A the following subsection: 
(4A)A trial provision under subsection (2) does not apply if the employer makes it a requirement of employment. 
A party vote  was called for on the question  
That the amendment be agreed to. 
Ayes 54 
New Zealand Labour 43; Green Party 6; Maori Party 4; Progressive 1. 
Noes 63 
New Zealand National 57; 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 7 be agreed to: 
to add to section 67A the following subsection: 
(6)A trial provision under subsection (2) can apply only to a position of employment where the trial provision has been specified as being part of the employment agreement for that position and as such: 
(a)The trial provision must be fully disclosed in any position description or material seeking applicants for the employment position; and 
(b)Cannot be subsequently added to either the employment description or any subsequent employment agreement. 
A party vote  was called for on the question  
That the amendment be agreed to. 
Ayes 54 
New Zealand Labour 43; Green Party 6; Maori Party 4; Progressive 1. 
Noes 63 
New Zealand National 57; 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 7 be agreed to: 
to insert the following section: 
67AA Actions by employer in cases of employee non-performance 
Prior to giving an employee on a trial provision notice of termination the employer needs to have carried out the following actions: 
(a)Set out for the employee in writing any concerns that could result in the employee’s employment being terminated and any behaviour required by the employee to address these concerns; and 
(b)Provided a reasonable period of time for the concerns referred to in subsection (1)(a) to be addressed; and 
(c)Provided after the period referred to in subsection (1)(b) written notice of dismissal setting out in which way the concerns were not addressed. 
A party vote was called for on the question  
That the amendment be agreed to. 
Ayes 54 
New Zealand Labour 43; Green Party 6; Maori Party 4; Progressive 1. 
Noes 63 
New Zealand National 57; 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 7 be agreed to: 
to insert in section 67B(1) before “notice of the termination” “written”. 
A party vote was called for on the question  
That the amendment be agreed to. 
Ayes 54 
New Zealand Labour 43; Green Party 6; Maori Party 4; Progressive 1. 
Noes 63 
New Zealand National 57; ACT New Zealand 5; United Future 1. 
Amendment not agreed to. 
The CHAIRPERSON (Lindsay Tisch) 
: The next amendment is in the name of the Hon Trevor Mallard to insert words in new section 67B(2) in clause 7. The question is that this amendment— 
Hon Trevor Mallard 
: I raise a point of order Mr Chairperson. I would have thought that you would have ruled this out now given the earlier decision on the part to which this refers. Clearly this amendment refers to actions set out in my proposed amendment to insert new section 67AA. That amendment was not agreed to by the Committee and in those circumstances I think the Chair would normally rule out a subsequent amendment to it. One cannot amend a clause that the Committee has already declined to pass. 
The CHAIRPERSON (Lindsay Tisch) 
: Does the member wish to withdraw this amendment? 
Hon Trevor Mallard 
: I am asking for your ruling Mr Chairperson. 
The CHAIRPERSON (Lindsay Tisch) 
: I have already called it so we will put it to the vote. 
The question was put that the following amendment in the name of the Hon Trevor Mallard to clause 7 be agreed to: 
to insert in section 67B(2) after “in respect of the dismissal” “provided that the employer has undertaken the actions set out in section 67AA”. 
A party vote was called for on the question  
That the amendment be agreed to. 
Ayes 10 
Green Party 6; Maori Party 4. 
Noes 63 
New Zealand National 57; ACT New Zealand 5; United Future 1. 
Abstentions 44 
New Zealand Labour 43; Progressive 1. 
Amendment not agreed to. 
The question was put that the following amendment in the name of the Hon Trevor Mallard to clause 7 be agreed to: 
to insert in section 67B the following subsection: 
(3A)A person whose employment agreement is terminated in accordance with subsection (1) shall be able to mediate the employer’s decision not to continue the employment but there shall be no other recourse to personal grievance procedures under section 103(1)(a) of this Act. 
A vote was called for on the question  
That the amendment be agreed to. 
Ayes 54 
New Zealand Labour 43; Green Party 6; Maori Party 4; Progressive 1. 
Noes 63 
New Zealand National 57; ACT New Zealand 5; United Future 1. 
Amendment not agreed to. 
The CHAIRPERSON (Lindsay Tisch) 
: The next amendment is in the name of the Hon Trevor Mallard to insert subsection (4A) in section 67B in clause 7. The question is that this amendment be agreed to. 
Hon Trevor Mallard 
: I raise a point of order Mr Chairperson. Is this new section 67B(1) as opposed to just section 67? 
The CHAIRPERSON (Lindsay Tisch) 
: No this is an amendment to insert subsection (4A) in section 67B. 
The question was put that the following amendment in the name of the Hon Trevor Mallard to clause 7 be agreed to: 
to insert in section 67B the following subsection: 
(4A)In the event that an employer considers that an employee is unable to successfully complete the probationary employment then the employer shall advise the employee in writing of the reasons. 
A party vote was called for on the question  
That the amendment be agreed to. 
Ayes 54 
New Zealand Labour 43; Green Party 6; Maori Party 4; Progressive 1. 
Noes 63 
New Zealand National 57; 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 7 be agreed to: 
to insert the following section: 
67CTeachers to be exempted from probationary period 
Sections 67A and 67B do not apply to teaching positions at any state school as defined in section 145(1) of the Education Act 1989. 
A party vote was called for on the question  
That the amendment be agreed to. 
Ayes 54 
New Zealand Labour 43; Green Party 6; Maori Party 4; Progressive 1. 
Noes 63 
New Zealand National 57; ACT New Zealand 5; United Future 1. 
Amendment not agreed to. 
The question was put that the following amendment in the name of Sue Bradford to Part 2 be agreed to: 
to insert the following new clauses: 
7AEffect of dismissal during trial period on social security benefit entitlement 
Section 60H of the Social Security Act 1964 does not apply to any person whose employment is terminated in accordance with section 67B(1). 
7BConsequential amendment to Social Security Act 1964 
Section 60H(3)(c) of the Social Security Act 1964 is amendment by inserting the words “other than in circumstances where section 67B(1) of the Employment Relations Act 2000 applies to his or her loss of employment” after the word “employment”. 
A party vote was called for on the question  
That the amendment be agreed to. 
Ayes 54 
New Zealand Labour 43; Green Party 6; Maori Party 4; Progressive 1. 
Noes 63 
New Zealand National 57; ACT New Zealand 5; United Future 1. 
Amendment not agreed to. 
The CHAIRPERSON (Lindsay Tisch) 
: The question is that Part 2— 
Hon TREVOR MALLARD (Labour—Hutt South) 
: 
 I raise a point of order Mr Chairperson. I asked you during that vote whether you were putting the amendment in my name to new section 67B(1) in clause 7. You said that you were not and that you were putting an amendment to new section 67B to add subsection (4A). I checked specifically at the time to make sure it was not the amendment that I knew I had tabled because I had written it out. You assured me it was not the amendment to section 67B(1). That means we have not yet had a vote on my amendment. I am happy to supply you with another copy; it has been on the Table for some time. Given your ruling earlier that we were not voting on it then I ask that we vote on it now.  
The CHAIRPERSON (Lindsay Tisch) 
: We have already dealt with the amendment to section 67B(1) and a vote was taken.  
Hon Trevor Mallard 
: You told us you did not. 
The CHAIRPERSON (Lindsay Tisch) 
: The amendment you asked about was further down after we had already voted on that one.  
A party vote was called for on the question  
That Part 2 be agreed to. 
Ayes 63 
New Zealand National 57; ACT New Zealand 5; United Future 1. 
Noes 54 
New Zealand Labour 43; Green Party 6; Maori Party 4; Progressive 1. 
Part 2 agreed to. 
Clauses 1 and 2 
Hon TREVOR MALLARD (Labour—Hutt South) 
: 
 Generally I think these things would go through relatively smoothly but there are two issues or possibly three— 
Hon Lianne Dalziel 
: It’s a wide-ranging debate. 
Hon TREVOR MALLARD 
: It may be a wide-ranging debate but normally people accept these things although in this case there is no acceptance from members on our side of the Chamber that these provisions are appropriate. There are at least three points that I can think of in this particular area which are very specific starting points for the debate before we broaden it out more generally.  
The first point is whether it is appropriate—and maybe it is appropriate—to have this bill come into force on April Fool’s Day because it is the Government’s intention that the bill come into force on April Fool’s Day.  
Hon Lianne Dalziel 
: Then why the urgency? 
Hon TREVOR MALLARD 
: Why the urgency? There is no urgency at all; it is only that the Government is too chicken to allow the bill to be referred to a select committee and have a bit of a debate on it over the summer. The Government is too scared to let its backbenchers hear submissions on the bill and that is the reason why the Government is passing the bill now although it will not come into effect until later.  
It is unusual that the ACT Party intends to move an amendment. It is a support party to the Government generally but it is to move an amendment. ACT of course is trying to save the Government from some of its embarrassment whereby the bill is to come into force in April. ACT would like to see it commence on 1 March next year. I make it clear that the Labour Party will not be supporting the ACT amendment to bring the bill into force earlier. We think that if the bill is to come into force then possibly April Fool’s Day is appropriate.  
But there is a more substantive issue around this bill because members will be aware that a petition is circulating by email and by other means to request that the Governor-General not assent to this bill. I am sure we will have some discussion from the previous Attorney-General and the current Attorney-General on that issue and I make it clear that I am not a supporter of that petition. I think it is the right of the Government once Parliament has passed a bill—in fact some people would say there is an obligation on the part of a Government when bills have been passed—to recommend to the Governor-General that he or in the previous case she assents to the bill. It is part of the constitution that the procedure works in that way in New Zealand. It is an interesting approach when we look at what is happening in Canada. That country is having a substantial discussion on this issue— 
Hon Member 
: On this issue? 
Hon TREVOR MALLARD 
: It is an important issue. It goes to the question of whether assent is given the role of the Government in seeking it and the role of the Governor-General in reacting to recommendations that are made. I think Simon Power will have some experience of that at some stage in the future. Generally it is the Prime Minister or the Attorney-General who makes such recommendations. Every now and again for reasons that are never clear to me that responsibility is passed on to another Minister. I know that because I was the person who recommended to the Governor-General that the Prostitution Reform Bill be— 
The CHAIRPERSON (Lindsay Tisch) 
: I would ask the Minister to confine his comments to clauses 1 and 2. 
Hon TREVOR MALLARD 
: I am sorry Mr Chairman; I thought I had made it clear I was talking to clause 2(1) of this bill. I was talking about the bill receiving the Royal assent and the methodology that is required for that to occur.  
I think this is the first time I have known of a petition arising since 1977. I think at that stage there was a petition to the Governor-General as to whether he should assent to the SIS legislation that was going through the House at that time.  
Hon Dr Michael Cullen 
: “Kiwi Keith” 
Hon TREVOR MALLARD 
: “Kiwi Keith” agreed on one of the few times when he did agree with the then Prime Minister Rob Muldoon and assented to the legislation. But speaking of the not-that-much lamented late Prime Minister Rob Muldoon I tell members there was a very good example from him at least one example of legislation that he did not send to the Governor-General. I am sure the previous Attorney-General will be able to outline the other case. It was a case under the previous National Government of a bill that was passed by this House when Winston Peters was Treasurer. It concerned a bill he was promoting in the area of overseas investment and that bill never made it to the Governor-General— 
Hon Dr Michael Cullen 
: No it was assented to. 
Hon TREVOR MALLARD 
: I am told by the previous Attorney-General that in fact it was assented to. But it was not brought into force. I apologise if I misled the Committee because my understanding of the situation was incorrect. The then Government had that bill assented to but subsequently failed to send the Order in Council to the Governor-General that would have brought the bill or presumably part of the bill into force.  
These things may seem to be arcane procedures to some of the newer members but they are quite important matters constitutionally. I was indicating before that in Canada over the last week or so these issues have been— 
Hon Dr Michael Cullen 
: We could have a 90-day probation period for bills I suppose. 
Hon TREVOR MALLARD 
: I think that for some bills that would be appropriate. There would have to be some sort of override provision to the 90 days for emergencies and similar things. 
Hon Dr Michael Cullen 
: Small bills. 
Hon TREVOR MALLARD 
: No I think there should be a 90-day period for long bills— 
Hon Lianne Dalziel 
: Less than 20 clauses. 
Hon TREVOR MALLARD 
: Fewer than 20 clauses; the previous Minister of Commerce’s use of grammar is somewhat mixed at the moment.  
Hon Ruth Dyson 
: She’s been mingling with National Party billboard writers.  
Hon TREVOR MALLARD 
: She has been spending too much time with the people who have been drafting the National Party billboards and the people who were talking hard about literacy—although I am not sure that all clauses in this bill are grammatically correct either.  
I think this legislation is called the Employment Relations Amendment Act 2008 but it will be that only when it is passed. I make it clear that it is a question of debate as to whether it is appropriate to call it an Act at this stage when it is not an Act or whether that is premature. In fact it is a question of whether the Minister in the chair is misleading the Committee and asking us to agree to this legislation being described as the Employment Relations Amendment Act 2008 when clearly it is not that and cannot be that until it receives the assent of the Governor-General under subclause 2(1) of the bill.  
In fact parts of this legislation will not come into force until 1 April which I assume will be some time after it receives the Royal assent. The way that these things go in my experience is that within a week or so the legislation will be checked for errors by the Clerk. 
Hon Clayton Cosgrove 
: What sort of errors? 
Hon TREVOR MALLARD 
: Well grammatical errors spelling errors punctuation errors and clause reference errors. Those things which are regarded as minor errors are within the realm of the Clerk to correct. The assent copy which goes to the Governor-General is in fact the copy that has to be right because the courts will go to that copy later. Being generous to us they will allow the minor errors to be corrected but of course the substantive ones cannot be corrected in that way.  
Going to the Governor-General is an important process. It has a long tradition and the Crown has not always automatically assented to legislation. I think if we go back into the Westminster tradition we find bills were quite often rejected.  
The other point that we could get into is that we have a relatively simple process. Having just a unicameral system—not having an Upper House as many Parliaments do—means we do not need to work bills through to the Upper House and back again. However I understand that as part of the constitutional review the Maori Party has agreed with the National Party that there is a possibility of a two-House system being introduced. 
Hon Member 
: Richard Worth! 
Hon TREVOR MALLARD 
: We thought earlier in the evening that Richard Worth had died because he was asleep for so long. He did not move for such a long period of time that we were scared that that had occurred. 
DAVID GARRETT (ACT) 
: 
 I wish to speak to the amendment in my name. The reason it is there is very simple and it is entirely consistent with the speeches that we have made earlier in the debate. In ACT’s view the bill—and I think my learned friend Mr Mallard over there might be correct that it is indeed still a bill—is designed to promote employment and is a good idea for the economy and for workers. That being the case it seems entirely silly to delay the commencement of such a sound idea as embodied in the bill until 1 April. It is very sensible in my view to advance the commencement date to 1 March. As I have said it is entirely consistent with what we have said in our contributions to both the first and second reading debates and I commend that amendment to honourable members. Thank you. 
Hon LIANNE DALZIEL (Labour—Christchurch East) 
: 
 On that basis the member would want to bring in the bill in its entirety on the day after it receives Royal assent rather than limiting it to just clause 2. 
Hon Rodney Hide 
: The member should move an amendment. 
Hon LIANNE DALZIEL 
: I am not moving an amendment because I do not support this bill and I do not support it coming into effect on 1 April or at any other time. I think that this bill is appalling. My colleague Trevor Mallard gave us a very esoteric traverse through the whole constitutional arrangements that apply to legislation but whether or not one agrees with the petition that is being circulated at the moment in respect of asking the Governor-General not to give the Royal assent—and I am actually with my colleague on that; I do not agree with the way the petition is being presented—it is probably understandable that it is being done because there is no other way that people have any opportunity to put on record their opposition to this bill. But it does not make this process any less anti-democratic.  
It is utterly anti-democratic to bring legislation into this House that does not even match the policy that the party campaigned on and that is not included in the 100-day action plan. It is not even listed in there. It does not turbocharge the economy and it certainly does nothing to lift productivity as has been made as a point over and over again in the election campaign. It does none of those things.  
This bill is going through an absolutely anti-democratic process. In fact nothing that the ACT Party might move in terms of bringing it forward and nothing about the constitutional process that may follow its passing will make it democratic because it is actually a betrayal of everything that National said it stood for in the election campaign.  
We have already read into the record the National Party’s policy on this bill; it is not matched by the bill that has been introduced. The National Party policy said that a National Government would retain good faith but it has not retained good faith for the first 90 days of someone’s employment. 
John Hayes 
: Yes we have! 
Hon LIANNE DALZIEL 
: No we have not. The reason that the National Party has not allowed for good faith is that it is quite happy that somebody takes on a job and for no reason whatsoever has his or her employment terminated. In fact this gives carte blanche to any employer to disguise racism to disguise sexism and to disguise anything as anything that they want because they do not have to give a reason for the termination at all. What on earth makes people think that employers will be explicit about breaching the Human Rights Act when they do not need to be? All they need to do is say: “I am sorry; don’t come Monday.” That is the new name of the bill: the “Don’t Come Monday Bill”. All an employer has to do is say: “We don’t want you here.”  
I think it is an absolute sophistry for National Party members to say that they have in any way consulted the general public about this bill and I am not surprised that so many people are signing the petition because there is no other way of showing outrage at the way the National Party is treating the people of New Zealand. Even Business New Zealand does not agree with the National Party’s ramming this bill through under urgency. As for Mr Rodney Hide our new Minister for Regulatory Reform this is the second bill that we have dealt with under this new Parliament—the second bill—that has an inadequate regulatory impact assessment. That is just unacceptable and I find it absolutely extraordinary that a brand new Minister in a brand new role has not seen fit to do a proper process around something as important as this.  
What nobody has taken into account in respect of this bill is the little bit that has been included at the end of the explanatory note under the Small Business Advisory Group comment: “Consideration could be given to evaluating the outcomes of this legislative change with a view to extending it to cover all employers in the future.” That is the real plan. They have even put it into the explanatory note. So this will not even be a small employer or small business policy; the National Party plans to extend this to every employer in this country.  
The reason the National Party is doing this under urgency is that it does not want the public scrutiny. It is very very nervous of taking this out to the public and letting the public have their say because it knows perfectly well that the vast majority of people who would submit on this bill would oppose it. The reason they would oppose it is that they know the sophistry behind the argument around new migrants and around young people.