Nash Stuart: Employment Relations Amendment Bill — In CommitteeText is incorporated into the Bound VolumeNash Stuart: Employment Relations Amendment Bill — In Committee[Sitting date: 23 October 2014. Volume:701;Page:242. Text is incorporated into the Bound Volume.]STUART NASH (Labour—Napier):I have the same sort of confusion that Mr Hipkins and Mr Clark had. Again I am just a simple boy from the Bay but I am wondering whether the Minister for Workplace Relations and Safety can clarify this. This is about new schedule 1AA. We are looking at clause 2(5) “Amendments to Part 6A (Continuity of employment if employees’ work affected by restructuring)”. What it actually says in clause 2(5) of this schedule is: “Subclause (6) applies to restructurings … for which the agreements are concluded before the commencement of the 2013 Act even if the restructurings they relate to are to take effect after the commencement of the 2013 Act.” For me I am not too sure what the definition of “concluded” is here. Part 6A of the Employment Relations Act as you know is a wide-ranging section and this covers exempt employers and it talks about contractors and contracting out.The reason why I am focusing on this is that it could have major ramifications because this relates to section 69C of the Act. Depending on what figures you use between 97 percent and 85 percent of New Zealand companies are actually small to medium sized companies so the employers are exempt from this. That is about 60 percent of all workers. So what is the definition of “concluded”? Does this actually relate to all restructurings that are concluded going way back when or does it relate to restructurings that were actually concluded or had started under the 2013 Act? Just a little bit of clarification there would be good.I would also like to talk about clause 2(7) of new schedule 1AA because again it says: “Sections 80 86 90 91 93 and 94 … apply in relation to strikes and lockouts that commenced before and continue on or after the commencement of the 2013 Act …”. I suppose the concern I have about this schedule 1AA is that there is a mixture of retrospectivity and clauses that relate to once the Act had been passed. The inconsistency is I think going to make it very difficult for both employers and employees to get their heads round the meaning of this. What I do fear is that in a lot of the cases that are going to go before the Employment Court these clauses are going to be interpreted through jurisprudence rather than through this legislation and I think it could be a little bit clearer.Let me talk about something else as well. Clause 2(1) of new schedule 1AA is called “Amendments to section 4 (Parties to employment relationship to deal with each other in good faith)”. We recognise this is part of the overarching principle under which industrial relations are undertaken. We talk about natural justice and the right of people to actually have the ability to defend themselves and have a fair trial. What this subclause says is: “Despite the amendments made to section 4 of this Act by section 4 of the 2013 Act section 4 … continues to apply in relation to proposed decisions … (a) if the proposed decision was notified to the employee before the commencement of the 2013 Act; and (b) whether the final decision on that proposal was made before on or after the commencement of the 2013 Act.”So how I am reading this is that if there is a case before the Employment Court at this point in time or when this bill passes into legislation then you use the old piece of legislation. This is again where the confusion arises for me because what we have here is whole lot of law around disclosure. To me that sort of cuts to the heart of natural justice. What the new provisions in this legislation say is that an employer does not have to disclose information to an employee around any restructuring if the employer thinks that that may be privileged or may breach the privacy of the person who has applied for that information. So this is where this gets a little bit confusing for me. There are some parts to this schedule that are retrospective and some parts that are not retrospective but—[Bell rung] Can I just elaborate on this a little bit further because I think it is quite important? Thank you for giving me the right to continue for another 5 minutes because I think it is important.Hon Simon Bridges: That’s by definition. You don’t need to say that.STUART NASH: I think that that Minister over there Simon Bridges who was a Minister of Labour has actually got off quite easily with his interjections. The reason that that former Minister is interjecting is that I have no doubt he felt the heat and he needed to get out and jump into the positions of Minister of Energy and Resources and Minister of Transport.The CHAIRPERSON (Hon Trevor Mallard): Order! Back—thank you.STUART NASH: Sorry I just had to respond to the former Minister.The CHAIRPERSON (Hon Trevor Mallard): Do not respond to irrelevant interjections.STUART NASH: I am sorry—sorry. I know the Minister is irrelevant.Chris Hipkins: I raise a point of order Mr Chairperson. I think you will find that there are in fact Speakers’ rulings that entitle a member to reply to interjections from another member regardless of whether they are relevant to the topic of the bill. I want an indication from you as to whether in fact you are changing those.The CHAIRPERSON (Hon Trevor Mallard): The member is right but the fact that one member is disorderly and frivolous does not give another member the right to do the same so it is a warning to both members.STUART NASH: Sorry I apologise for that. I should have known better and I should not respond to that member.The thing that concerns me about what we have got here is that the reason that the Minister gave for the change in this legislation is that it created a whole lot of confusion. That was the reason for this change. There was one case in particular and it was Vice-Chancellor of Massey University v Wrigley and another in 2010—in fact one of the Chair’s former colleagues. There is a whole lot of case law around this. The reason why the Government said it needs to change the legislation is that it created a whole lot of confusion. The way I am reading this is that it does not get rid of the confusion; it just adds to the confusion. One thing that the regulatory impact statement did actually say is that the ministry was unsure of the impact of the old law which will continue until new cases come on. So the ministry was basically putting up its hands and saying that there was no impact. I just think that this creates a whole lot of confusion because there is a lot of case law around this. I am just really concerned that what we are going to end up with is the courts determining what is relevant and what is not.I would just like to mention one other point and again this is about clause 2(7) in new schedule 1AA. I talked about this subclause earlier and I should have elaborated a little bit further. We have got paragraphs (a) and (b) of clause 2(7) and they contradict each other. One sublcause (7)(a) is actually saying: “the union or the employer (as the case may be) must give notice in accordance with this Act (as amended … ) on the commencement of the 2013 Act:”. Subclause (7)(b) says: “however if a notice given by the union or the employer before the commencement of the 2013 Act—(i) complies fully with the notice … no further notice is required:”. Then subparagraph (ii) says that if the notice “complies [only] partly with the notice requirements of this Act … [then] those notice requirements are satisfied by the union or employer providing notice of the additional matters …” and then the legislation does come into play.So even one subparagraph above the other we get a whole lot of contradictory statements. My major concern about this is that it is going to provide a whole lot of confusion for the people who need to interpret this legislation whether they are the employers or the employers’ lawyers or the employees or the unions or the delegates or whoever takes the cases. There is a lot of confusion. That confusion will disappear over the space of 2 or 3 years once the legislation beds in. I think what will happen—Sue Moroney: They won’t get it right now though.STUART NASH: I agree with that member who was actually one of the architects of this. What is going to happen I think is that we are going to have cases in the Employment Court running in parallel. We are going to have cases in the Employment Court that are supposed to look at the old law and interpret it as per the conditions of the 2013 Act and then we are going to have cases running in the Employment Court where they are having to look at the new law and they are going to have to develop case law around that. So not only is the judiciary going to end up with a little bit of confusion—with all due respect to them because they are intelligent people—but I just see a lot of confusion here.The other more important thing is that I see a lot of cost as well. The cost of taking one of these cases to the Employment Court is actually quite substantial. Often the only people who end up taking these cases to the Employment Court are unions because the workers cannot afford the cost of it. Before this came in the legal precedents had taken away a lot of the ambiguity. What this does now especially with the retrospective and current parts is to add that ambiguity back. That makes the ability of the employee to take a grievance to court just that much more costly when the uncertainty arises and I think it may just be a greater deterrent. So what I would like to see is actually a definitive answer around: is it going to be retrospective or once this law is passed will it just all happen?