Hodgson Pete: Employment Relations Amendment Bill — Second Reading In Committee 
Hodgson Pete: Employment Relations Amendment Bill — Second Reading In Committee 
[Volume:651;Page:432] 
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.