Employment Relations (Secret Ballot for Strikes) Amendment Bill — In Committee 
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Employment Relations (Secret Ballot for Strikes) Amendment Bill — In Committee 
[Volume:676;Page:21552] 
Employment Relations (Secret Ballot for Strikes) Amendment Bill 
In Committee 
Debate resumed from 7 September. 
Clause 3 Principal Act amended 
 (continued) 
DARIEN FENTON (Labour) 
: 
 Here we are on another bill again debating that a principal Act be amended. The principal Act being amended by the Employment Relations (Secret Ballot for Strikes) Amendment Bill is the Employment Relations Act 2000 and is being done so that the Hon Tau Henare can get his way by imposing on union members the right for secret ballots for strikes. I find that very very interesting having just heard the previous debate which was fascinating and where we talked about freedom of association democratic rights and the people’s right to choose yet this member’s bill is from a National Party member who wants to impose decisions on the democratic decision-making of union members. 
We have talked before about whether this bill is necessary. I want to be fair to the member Tau Henare and acknowledge that he probably had a genuine belief when he brought this bill to the House— 
Carol Beaumont 
: That’s fair! 
DARIEN FENTON 
: I am a very fair person and I am generous. I was interested to go to the Transport and Industrial Relations Committee to find out whether there really was a problem on this issue. Guess what? We found out there was no problem. Not a single worker came to the select committee to say there was a problem and that workers were being forced into strike action because there was no secret ballot for strikes. We also found out that most unions already have this process and carry it out where practical. But it is not always practical and we have to remember that we live in a world that is way way different from 1980 when the Hon Tau Henare was the worst union organiser in the world. He worked for the— 
Hon Tau Henare 
: Not very generous. 
DARIEN FENTON 
: Not so generous and I am sorry but I just could not help myself. We were talking about a time when we had compulsory trade unionism and times were different then. That is Tau Henare’s experience and he used to go into workplaces and say: “Pull the pin. Everyone out! Tell those clerical workers”—those very militant clerical workers for whom he was the union organiser—“they have to pull the pin and take strike action.” I am sure there was the odd clerical worker who rang up Syd Jackson who was the secretary of the clerical workers union at that time and said: “Tau Henare came in and told us that we have to go on strike today and we don’t agree with that.” That was like 30 years ago but times have changed. 
The House finished a very interesting debate tonight about freedom of association and the rights of people to freely associate. I say to the ACT members who asserted in their comments about freedom of association that the right was just as strong on the other side of the argument which is freedom not to associate. Actually when it comes to workers’ rights and International Labour Organization conventions the right is much stronger in terms of freedom of association; absolutely much stronger. 
We are talking about amending this principal Act and wasting a lot of time on a members’ day at the eleventh hour of Parliament when there are a lot of other priorities or other things that we could be doing. For example I was contacted tonight by someone in Christchurch and she said to me that she was not complaining but was only just surviving. She said she was a bit low at the moment. The car had blown up and she had to take a day off work to get the car organised to be fixed. She did not know where the money was coming from. There were no groceries this pay—or next no doubt—but she did need a car to get to work. She wondered how she was going to cope with this. This bill would not be a priority for that person and it would not be a priority for many many people. 
In fact as I said no one came to the select committee to say that Parliament needed to make this amendment to the Employment Relations Act. We have amended this principal Act on a number of occasions during this Parliament all of them very unfortunate and very unnecessary amendments. They are unfortunate and unnecessary and what we are now seeing and what I hear every day through my email in-box are the consequences of the amendments that this Government has made to the Employment Relations Act. 
First of all we had the 90-day trial period for workplaces of fewer than 20 employees. That amendment was deemed to be a success and the Minister of Labour has gone around trumpeting that somehow that created 13000 jobs. That is just rubbish. The research is so flawed. It is just rubbish to look at a time period of 3 months after that legislation was passed and say: “Oh well people employed in small workplaces have not lost as many jobs as people employed in larger workplaces and somehow that has created a whole lot of jobs.” On that basis both the Minister and the Prime Minister went out and said they were going to extend the legislation. They have extended it now to all workplaces. 
Of course they have amended the principal Act around a whole lot of other things including the access of workers to their union organisers. I think this bill raises a really interesting question. In fact it is the subject of a Supplementary Order Paper that I have introduced which is about access to workplaces. This Government has restricted the right of workers to talk to their union organisers at work. What is more it has restricted the right of workers to talk to their union organisers even when there is a health and safety matter involved. So one of the Supplementary Order Papers I will be introducing to amend the principal Act will state that where there is a requirement to hold a secret ballot for strikes union organisers will not be prevented from coming into the workplace. Can members imagine it? We have a law on the one hand that says there has to be a secret ballot for strikes then on the other hand we have a restriction whereby union organisers cannot come in and conduct that ballot. How ridiculous is that! I am really looking forward to the member in the chair supporting that Supplementary Order Paper when we get to that part of the bill a little bit further along. 
As I said on going back to the priorities I thought it was an interesting day in Parliament today and not only in the general debate where we heard some silly stuff. I do want to respond if I may to the Hon Jonathan Coleman who made some allegations about things that I allegedly have been saying. He talked about his own electorate but actually I work in the Northcote electorate and I know there are people coming through my office door every day who are sick and tired of this Government amending the Employment Relations Act and who are concerned about this silly bill—this unnecessary bill this waste of time—when we have all of the other problems that are going on in the country. 
We have just spent a lot of time debating a bill about voluntary student membership but nobody wants it—nobody wants it. It is Heather’s last hurrah and thank goodness for that. Maybe this bill is Tau’s last hurrah although of course he will not get it through in this Parliament. Thank goodness for that! Just look at the member in the chair; he does not care. He is going “Oh oh we don’t care!” and that shows the commitment he has to the bill. I have not picked up any—any—real passion from the member since we went through the select committee process where he found out that no one supported the amendment of the principal Act. No one supported it; it was some mad idea that he got from the 1980s when he was the worst union organiser in the world. That is some mad idea some residue; that party has not been able to produce a single worker who has said there is a problem. 
The fact is that we have unions today that are grown-up responsible and modern and that deal with their members in a democratic way. They have rules that deal with these things. Times have changed; things are different to the time when Tau Henare was rampaging around as a union organiser for the clerical workers union on the payroll of low-paid clerical workers and trying to pretend he was important. 
On the back of that he has become the most famous waka-jumper in the world as well as the worst union organiser in the world. He went of course from the New Zealand First Party and I remember—because I live out at Waitakere—the signs I tell Tau Henare: “New Zealand First will not go with National” which of course meant that those members would not amend the principal Act but away he went. 
Hon TAU HENARE (National) 
: 
 I will take just a very quick call. Never once did I tell anyone in the clerical workers union to go on strike. If there ever was a time when there was a need to withdraw the labour of those workers it was certainly done by secret ballot. My question asks why that is not allowed to happen for everybody. 
Darien Fenton 
: It does happen. You don’t need rules to say it should. 
Hon TAU HENARE 
: That member over there just happens to dislike Sir Peter Leitch so much she calls him the “Mad Butcher” but tonight there is no doubt that Darien Fenton is now known as just plain mad. 
But let us get serious about this. They said something here that I need to respond to and that is— 
Hon Steve Chadwick 
: Raise it up; pick it up. 
Hon TAU HENARE 
:—where did this—well I will pick it up. I will pick it up. 
Darien Fenton 
: Lift your game. Lift your game. 
Hon TAU HENARE 
: I will pick it up. Well actually it is not me who needs to lift their game. If I was on 28 percent yeah—OK I would. But we are not. We are on 50-odd percent. It was a miner’s wife—a miner’s wife—who asked the question: why could her husband not have a secret ballot when the miners withdrew their labour? Why could they not have a secret ballot? 
Darien Fenton 
: One person in 20 years. 
Hon TAU HENARE 
: Oh OK. So it is all right for everybody else but it is not all right when one person says “Actually I’d like a secret ballot because I want to be able to have the same rights and privileges as electors in this country. They go behind closed doors or behind a screen and they freely make their choice whether it is yes or no.” 
Darien Fenton 
: Where’s the evidence? Which strike was that? When was it? 
Hon TAU HENARE 
: If that is what that member over there dislikes well then that is fine. She should go and live in 1930s Germany. But the fact of the matter is that everybody should have the right to vote without that sort of encumbrance on them. That is all I have to say and most probably all I have to say for the rest of these proceedings. 
CAROL BEAUMONT (Labour) 
: 
 I rise to speak to clause 3 of the Employment Relations (Secret Ballot for Strikes) Amendment Bill which is one of the worst pieces of legislation I have seen come into this House. It is bad because it is so completely unnecessary and because it is probably the worst bill I have ever seen in terms of drafting. I was on the Transport and Industrial Relations Committee which dealt with this bill and when it came through it was so poorly drafted that its meaning was that there had to be a ballot. It did not matter what the conclusion of the ballot was; there just had to be a ballot. There could be a ballot and the vote could be lost but the union would still comply. 
Anyway going to the principles of the Act— 
Jo Goodhew 
: I raise a point of order Mr Chairperson. I seek your reassurance that we are talking about clause 3 or am I mistaken? 
The CHAIRPERSON (Lindsay Tisch) 
: We are talking about clause 3. I indicated to a previous speaker to come back into line. The member in charge of the bill did some rebuttal and that was acceptable. I have allowed some leeway. But we are on clause 3 and I do ask that we focus on that from now on. 
CAROL BEAUMONT 
: Thank you very much. That is entirely what I was going to do as I said when I stood up I say to the whip opposite. Let us talk about the principal Act shall we? Clause 3 of course is “Principal Act amended”. I will make sure that I do a very thorough analysis of the principal Act for the whip opposite. 
The principal Act that is being amended is the Employment Relations Act. It is very important legislation because it was a fundamental shift from what was one of the worst pieces of legislation this country has seen. That legislation caused genuine grief and trouble and led to a low-wage economy. It was of course the Employment Contracts Act. 
The Employment Relations Act 2000 which is the principal Act this bill seeks to amend is a substantial Act of Parliament. I thought I would just talk a little about the objects of that Act then link to how this bill relates to those objects I guess and talk about the implications of those objects for this bill. The object of the Employment Relations Act under section 3 is to “build productive employment relationships through the promotion of good faith in all aspects of the employment environment and of the employment relationship—”. That is done by certain things such as “by recognising that employment relationships must be built not only on the implied mutual obligations of trust and confidence but also on a legislative requirement for good faith behaviour;”. This is relevant to strikes so I will link these two things together. 
Let me finish by talking about the other objects of the principal Act that we are amending. Secondly it achieves its object “by acknowledging and addressing the inherent inequality of power in employment relationships;”. I do not think that members on the other side of the Chamber quite grasp that: there is actually an inherent power imbalance in employment relationships. 
Thirdly the bill serves to promote collective bargaining. The strike question is absolutely linked to collective bargaining because the right to strike under the Employment Relations Act is really constrained to two main areas. The first is around collective bargaining. When one is in the bargaining period one has the legal right to strike under New Zealand law. The second main occasion when one has the legal right to strike in New Zealand is over a health and safety matter. The objects of the Act also include “protecting the integrity of individual choice” which might be relevant. Members opposite might say that that is what this bill is about so we will come back to that as well. Further objects are “promoting mediation as the primary problem-solving mechanism; and … reducing the need for judicial intervention;”. Those are very interesting and I will come back to those. 
The other main object is to “promote observance in New Zealand of the principles underlying International Labour Organisation Convention 87 on Freedom of Association and Convention 98 on the Right to Organise and Bargain Collectively.” As I have said strikes are related to the question of bargaining collectively. 
Let us look at what those objects mean in relation to this bill which serves to amend the principal Act the Employment Relations Act. I know for a fact that the good-faith relationships that are referred to in the object of this Act apply in multiple ways. For example a union has a good-faith relationship with its members a union has a good-faith relationship with the employer and so on. An employer has a good-faith relationship with employers’ organisations. It is kind of balanced; all parties have good-faith obligations to each other. 
The reason I point that out is that unions do have a good-faith obligation to their members. For argument’s sake let us say that a union official was to force a member to take strike action. I do not believe that that is actually possible and I have been a union organiser myself but let us say that it is possible. In fact that member has the absolute right under the Employment Relations Act to say that their union is not acting in good faith towards them because it was forcing them to do something they did not want to do. The member would actually have a legal remedy for breach of good faith. That exists already. 
The other thing that is particularly interesting is the issue of reducing the need for judicial intervention. Because the Employment Relations Act is about relationships—the wording of the bill was quite deliberate—the idea was that the employment relationship would be based on good faith and parties would try to deal with any problems at the lowest possible level. That was part of the underpinning basis of this legislation. That meant that the problem was ideally dealt with on the shop floor by having a conversation and if it could not be sorted that way both parties would go into mediation or get some assistance like that as opposed to getting into a legal situation. 
One of the real concerns that many of us had is that the bill that Tau Henare is putting up will actually give employers the right to take legal challenges against a union’s strike ballot. There have been some quite heavily contested collective bargaining situations in New Zealand’s history where workers are well organised they are in a union and they are trying to improve their lot but unfortunately the employer is not coming to the party. They are not making progress and the workers decide to take strike action to put a bit of pressure on. That is one of the two main reasons as I said earlier that someone can legally take strike action in New Zealand. Under this legislation they would conduct their ballot. Actually as my colleague and friend Darien Fenton has said that would be the case anyway because that is what unions already do. Under this legislation they would conduct their ballot. This amendment bill will give the employer the right to then intervene and have a legal argument about whether that ballot was conducted correctly. We know—and this was drawn to the select committee’s attention; I am not making this up—that in a number of quite significant cases overseas that is precisely what has happened. Employers have used that sort of process to intervene judicially to go through a very long and costly legal challenge around the strike ballot and to actually undermine the workers’ ability to organise and collectively bargain. That is one of the genuine worries that people have about this bill. 
The Employment Relations (Secret Ballot for Strikes) Amendment Bill amends the principal Act the Employment Relations Act but in my opinion it is fundamentally at odds with the objects of the Act it is amending. I do not know—I am no expert on these things—but it seems pretty odd to amend an Act in a way that is completely counter to the objects of that Act. 
Just to reinforce that point it explicitly says in section 3(a)(vi) of the principal Act the Employment Relations Act that the object of the Act is to reduce the need for judicial intervention. My contention is that this bill potentially undermines that section in the Employment Relations Act. Certainly it is unnecessary given the provisions in section 3(a)(i) about employment relationships being based on good faith and the requirement for a union to act in good faith towards its members. Arguably and quite compellingly there is a clear requirement on unions to have a democratic process by which to make a decision around taking strike action. Funnily enough that is what they do. Anybody who is involved in employment relations will know that in collective bargaining when the issue of strike action comes up there will be a secret ballot. So this bill is unnecessary. 
I think it is very interesting that none of the members opposite—ACT or National—have thought about the other side of the equation. As I said the Act itself is quite balanced. It puts these requirements on unions and workers but also on employers. Yet this bill fails to put any requirements on employers. 
TIM MACINDOE (National—Hamilton West) 
: 
 I move  
That the question be now put 
. 
LYNNE PILLAY (Labour) 
: 
 Along with my colleagues I rise to take a call on the Employment Relations (Secret Ballot for Strikes) Amendment Bill. As Carol Beaumont was saying just before me the whole purpose of the bill is at odds with the principal Act. This bill amends the Employment Relations Act. For those of us who were union officials or workers in 1991 we remember the Employment Contracts Act and the havoc that caused. In fact if I am really honest it was the Employment Contracts Act that inspired me or drove me to become interested in politics and to stand for Parliament. 
But I will go back to clause 3 because I know you would like me to do that Mr Chairperson. It amends the principal Act. The very purpose of the change to the Employment Contracts Act—to change the name in itself—says a lot. It changed from a contract which is a business deal effectively into a relationship. Calling it the Employment Relations Act was actually recognising that that is what employment relationships are about. I keep saying “relationship” but between employers and workers it is really important that it is based on a meaningful relationship where there is mutual trust mutual respect and fair treatment. 
The very purpose of this amendment bill is to amend an Act based on relationships where there is transparency and honesty and to go instead to a Draconian old-fashioned way— 
Darien Fenton 
: Very old-fashioned. 
LYNNE PILLAY 
: A very old-fashioned way of requiring— 
Darien Fenton 
: No idea. 
LYNNE PILLAY 
: —no idea whatsoever—a rather long undulated process for doing what unions already do. It is also a costly process. The reality is that frankly workers on the rare time—well it is not so rare now that the National Government is in—did go on strike and union officials like me treated it very seriously. One is asking workers to cut a day’s or whatever’s pay. That is not something that any union official takes lightly in these harsh economic times. So of course there is a secret ballot. 
This presumption from Tau Henare—who is actually without being too mean about it a little teensy bit of a bully—is that that is the way union officials operate as well. 
Todd McClay 
: I raise a point of order Mr Chairperson. I take offence at that. He is not a little bit of a bully. 
The CHAIRPERSON (Lindsay Tisch) 
: No look the member whom that was a reflection against had the opportunity and he did not take it. But I did tell the member to come back. We are on clause 3. I would like her to focus the rest of the time on clause 3. 
LYNNE PILLAY 
: Thank you Mr Chair. I actually will focus on clause 3. I thought that was what I was really doing. 
I was talking about amending the Employment Relations Act which is based on relationships and bringing in a Draconian old-fashioned—I am sure that is acceptable to the member—way of dealing with the relationships. That is at odds with the principles of the Act. It is interesting because if we look at the amendments to the Employment Relations Act I feel quite a bit of pride that the amendments that were made under Labour actually improved the Act—they improved it. Then we saw something like the “90-Day Fire at Will Act” which was actually an amendment to the Employment Relations Act—am I right there? 
Darien Fenton 
: Yes it was. 
LYNNE PILLAY 
: So I am still on track here. That amendment is at odds with the very principal Act that is being amended. That is my point. 
I am very interested for the member who has put this bill before the House to take a call on this and perhaps reassure the Committee or try to convince us in some way or another just what it is all about. It just does not make sense. If the member is willing to take a call I think we could go into much more detail about the Act that is being amended. Perhaps the member would like to take a call and explain what the Employment Relations Act means to him. Perhaps members on the other side of the House instead of flippantly taking closure motions will actually stand up and take a call. 
JO GOODHEW (Junior Whip—National) 
: 
 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 57 
New Zealand Labour 42; Green Party 9; Maori Party 3; Progressive 1; Mana 1; Independent: Carter C. 
Motion agreed to. 
A party vote was called for on the question  
That clause 3 be agreed to. 
Ayes 63 
New Zealand National 57; ACT New Zealand 5; United Future 1. 
Noes 57 
New Zealand Labour 42; Green Party 9; Maori Party 3; Progressive 1; Mana 1; Independent: Carter C. 
Clause 3 agreed to. 
Clause 4 Purpose 
The CHAIRPERSON (Lindsay Tisch) 
: This is a very narrow debate. 
DARIEN FENTON (Labour) 
: 
 Clause 4 is about the purpose of the Employment Relations (Secret Ballot for Strikes) Amendment Bill. I raise a point of order Mr Chairperson. I just seek your advice on that. You said it was a narrow debate. Can I get an explanation about why it is a narrow debate given that it is about the purpose? 
The CHAIRPERSON (Lindsay Tisch) 
: Well just look at it: it requires unions to hold a secret ballot of its members. You cannot talk about things other than what clause 4 says. 
DARIEN FENTON 
: Thank you Mr Chair for that explanation. Let us talk about the purpose of the bill. I am happy to do that. The purpose of the bill is to require unions to hold a secret ballot of their members to approve a strike before undertaking any strike action. I want to understand why this purpose clause is necessary. What is the mischief that we are trying to cure? We heard from various parties in the Transport and Industrial Relations Committee that there was no mischief to cure and that the bill crushes a gnat with an anvil. There is no problem. 
The purpose clause apparently prevents union members from pressuring other union members into striking. Tau Henare said it came from his time as a union organiser in the 1980s. I do not want to keep repeating our allegations about his time in the 1980s but he said he stood in front of workers before a “show of hands” vote with a presence that would have made them think twice about voting “no”. I say again that that was the 1980s. But is that really— 
Lynne Pillay 
: That was Tau Henare. 
DARIEN FENTON 
: That was Tau Henare too. Is that really a problem in 21st century New Zealand? Is it really a problem in 21st century New Zealand unions? The member in the chair the Hon Tau Henare talked about a miner’s wife. There was a press release from a miner’s wife. An anecdotal report as I understand it behind the purpose of this bill was that a West Coast miner’s wife was blasting the union because it failed to hold a secret ballot. But I also understand that the union involved was the Amalgamated Engineering Printing and Manufacturing Union. As a matter of interest that is the union that represents the miners in mines like Pike River. Dreadful consequences have gone on there. If only there been a strike over health and safety in Pike River we may not perhaps have had to have an amendment to the Act in which the member is saying that unions should hold a secret ballot for strikes. 
I say on that point though—if I may while we are talking about this—that I am pleased that during the select committee process the member did listen to the submissions where people talked about the restrictions the purpose would place on secret ballots for health and safety and what a concern that was. I am pleased that he has taken that on board and that that has been included in the bill. The select committee said that that amendment was good. 
But even if under this bill there had been no secret ballot the member under the purpose of this bill would have had a valid complaint against the union. The union has it in its rules. Its rules as do the rules of many unions already require there to be a secret ballot. For example the rules of my own union the Service and Food Workers Union say that any member can call for a secret ballot on anything—not just strike action but any action at all whether it is election of officers expenditure or anything else—provided 10 percent of the members sign a petition. Many rules already cover what the purpose of this bill which is in clause 4 purports to do so there is no need to have this legislation. There is no need. No union organiser that I know in this day and age would attempt to organise a strike without a secret ballot. 
I think clause 4 assumes that workers are really stupid and that they do not have a mind of their own. When workers go on strike we are talking about people walking off the job and forfeiting their salary or their wages for the day. That is a big call that they make. I think it is actually quite insulting to say in the 21st century that workers are so stupid and so pathetic that they cannot even stand up for themselves. We hear that from National members all the time do we not? Is that not what we hear from the Minister of Labour? We hear that the Labour market is very flexible that people know their rights and so on. With clause 4 the purpose clause this bill is imposing a 1980s solution in the 21st century. 
We heard an interesting thing in the select committee and I know it from my own experience. The only accusations that I can recall are of union organisers attempting to dissuade workers from going on strike. It is very ironical that it is one of the accusations that we hear. One of the things I think the member in the chair does not understand is how much things have changed. Unions in workplaces bring a kind of discipline that we did not see in the Hon Tau Henare’s time in the 1980s. It is different. Far from the situation where a union organiser goes out and says: “We should all go on strike. Pull the pin and let’s go.” we often see union organisers meeting with the members and trying to work through the offer in a reasonable way because it is mostly about collective bargaining. The biggest problem unions have is trying to persuade the odd disaffected member who wants to take a more militant approach. 
Currently the Employment Relations Act does not require unions to hold secret ballots before striking but this is the usual practice in most unions. As we heard in the select committee most unions already have that practice in their rules. Requiring unions to hold a secret ballot vote is not unusual but there are some practical difficulties with it. I think the biggest objection to the purpose clause is the imposition of a requirement of unions to hold secret ballots when unions are democratic organisations. They have rules that are bound by the Employment Relations Act and they have to demonstrate through the Employment Relations Act that those rules are democratic. They have a whole range of things. 
The purpose of this bill would have been easily amended easily fixed and perhaps would have met the objectives of the member in the chair if we had simply said that every union must have rules for determining the process when there is going to be a strike or industrial action. A strike under the Employment Relations Act is much more than just stopping or withdrawing labour; it is often going slow or a whole range of things. There are a whole lot of different ways of taking strike action under the Employment Relations Act. 
The other part about this purpose of course is that it picks on one side of the employment relationship; it completely ignores the other side of the employment relationship. The other part of the Employment Relations Act is that employers can lock out workers. They can make a decision to take industrial action. They can take industrial action and lock out workers. In fact I have been involved in some of those lockouts. They are pretty vicious. But there is no corresponding duty under the purpose of this bill to require either employers or shareholders to ballot their members about imposing lockout action. 
That is one of the amendments I am proposing. It seems fair enough to me. If we have to live with this why should it not be an equal duty? Why should there not be a balanced approach to the purpose of this bill? If unions are required to hold secret ballots shareholders should be required to hold secret ballots if they are proposing to lock out their workers. The consequences of a lockout are just as devastating as the consequences of a strike. As I said unions take this very very seriously. There have been some pretty vicious lockouts in recent times. There is no requirement on employers to take the views of their shareholders and investors into consideration. I think that is wrong and I would like to see the purpose of this bill changed. If we are going to require secret ballots of workers why not require secret ballots of shareholders to approve a lockout? It is a corresponding action. 
We are talking about fairness and balance. I know that the Government likes to talk about balanced employment relationships. Let us do the right thing by changing this purpose clause. Thank you. 
CAROL BEAUMONT (Labour) 
: 
 I also rise to speak on clause 4 of the Employment Relations (Secret Ballot for Strikes) Amendment Bill. As has been mentioned it states that “The purpose of this Act is to require unions”—just unions—“to hold a secret ballot vote of their members to approve a strike before undertaking any strike action.” I will come back to the question of members. One would think that the purpose of legislation should be something that is actually needed; that if we have a bill with a particular purpose it is because there is a need for a bill to meet that purpose. Having listened to the submissions to the Transport and Industrial Relations Committee I know that there was no evidence supplied that there was a need to require unions “to hold a secret ballot vote of their members to approve a strike before undertaking any strike action” because they do that. They already do it. So why would anyone bring to Parliament a bill that has a purpose that is something that is already done? It seems nonsensical to me. 
Furthermore the purpose of this bill is already in my opinion well and truly covered off by the requirements of the principal Act the Employment Relations Act whereby that Act requires unions to operate in good faith to their members and acting in good faith to their members must apply in the circumstance of something as serious as a strike because after all a strike is something that is not entered into lightly. As my colleagues have said workers lose money by taking strike action. That is not something anybody relishes. In the economic climate we have now where workers and their families are struggling to make ends meet because of ever-rising prices and because of the actions of this Government it would be even harder to do it one would think except that employers have certainly hardened up as well so workers are trying to get improved income through collective bargaining. They are not making progress so strikes have increased. None the less it is a hard ask to take strike action. 
There must be a ballot of the union’s members. That is what the purpose clause says. Of course membership of unions is voluntary so the other thing that makes me think the purpose is somewhat nonsensical is that in this strange weird world that Mr Henare lives in where union officials stand over workers to make them go on strike those workers do not have to belong to that union. They can say: “I’m not going to be a member any more. I don’t like you. I’m going to stop being a member.” There is no requirement for workers to be members of unions. So again the purpose seems to be somewhat redundant. If there was a union official standing over a worker in the way that has been referred to that worker could either take action under the good-faith provisions of the Employment Relations Act the principal Act or leave the union and have nothing further to do with it. Why would someone want to belong to an organisation where somebody stands over them? 
Those things make me think that the purpose outlined in clause 4 is completely redundant unnecessary and a waste of Parliament’s time. There are many many other things in the Employment Relations Act that I can think of that it would be more worthwhile amending—but that is probably to go wider than clause 4 so I will not go there. 
It interests me also—and my colleague Darien Fenton has talked about this—that it is quite narrow because it applies only to one party in the employment relationship. The principal Act as I said earlier talks about all of the parties. It talks about workers their unions employers and their employer organisations. But this amendment to the Act has a purpose of dealing with only one of the parties in the employment relationship—actually two the members and their union; I guess it is two. It does not deal with the other side of the coin. If some of the members opposite feel that this is about democracy and making good decisions and avoiding the possibility that people are making a decision that is not well-thought-through then we wonder why they are not looking at requiring employers to take a secret ballot of their shareholders for example before they lock out their workers. 
LYNNE PILLAY (Labour) 
: 
 I will probably repeat some of what has been said by other members in the hope that the member in the chair Tau Henare will get it. As others have said the purpose of requiring unions to hold a secret ballot when membership of the union is voluntary is in itself absolutely bizarre. As my colleague Carol Beaumont has said if members do not like the outcome then quite frankly they do not need to belong to the union. I think the member in the chair is going back back back in time to when union membership was compulsory. I would like him to take a call and explain to the Committee whether membership was compulsory or voluntary when he was a union official. He seems to have no comprehension at all about the secret ballot process. 
If people do not feel compelled to take a strike vote then they do not need to be members of the union. But frankly if they do not approve of the process then they have the option of not withdrawing their labour. The very point of having a strike vote is that the members have to have faith in the democratic process they have to have that sense of unity and they have to think: “We are taking this step which we treat very seriously because we are withdrawing our labour and we are therefore not getting paid for the day.” Before they do that they give it very careful consideration. If they do take that strike vote then they need to know that it is transparent and that they are supported by their fellow union members. The whole point about this Employment Relations (Secret Ballot for Strikes) Amendment Bill is that it contradicts itself in so many ways. 
I think the member did indicate that he would take a call and if that is the case—yes I see a little smile as though he is going to get to his feet next—he can enlighten the Committee on the points that have been raised. I think that is the respectful thing to do for members who are genuinely perplexed about what this bill intends to do. 
As Carol Beaumont and Darien Fenton have said if there is this Draconian approach—this is what the union has to do—then how will that be enforced? What will not be acceptable is some naughty employer saying: “Look I want to sit in on your union meeting because I want to make sure that those members there are having a secret ballot.” I am not saying that this is every employer by any stretch of the imagination but I tell this Committee that if there is any intimidation or stand-over tactics it is when bad employers not good employers try to interfere with the democratic process of unions. 
I am worried and I would like the member when he addresses all the other issues that have been raised to explain how this will be enforced. Who will police it? Who will make sure it is policed? There will be employers out there who think: “I had better go in and in the interests of those workers just make sure that it is a secret ballot.” If that member thinks it is not intimidating to have an employer sitting there when employees are discussing the terms and conditions in their collective agreement then he is quite clearly dreaming. 
I am looking at the submission from the Council of Trade Unions and I compliment it on its very measured submission. Like us the Council of Trade Unions does not fundamentally oppose the principle of a secret ballot. In fact it supports it. But what it is saying is that on balance if that is the case then before the employer makes decisions like locking out workers there should be a secret ballot. As Darien Fenton said it seems a very very unbalanced and unfair principle which is exactly what I said before. 
PHIL TWYFORD (Labour) 
: 
 I first came across the Hon Tau Henare in the late 1980s when he was an organiser with the Clerical Workers Union and I was an organiser with the Service and Food Workers Union. We jointly addressed— 
Hon Dr Nick Smith 
: He’s come a lot further than you. 
PHIL TWYFORD 
: Does Mr Smith really think so? We jointly addressed a new group of union members at a rather flash Auckland hotel. I remember Mr Henare at the hotel persuading these new workers of the benefits of the Clerical Workers Union and what a great redundancy agreement they would be entitled to if they joined the union. It strikes me as very unlikely that the Clerical Workers Union in the 1980s would have been the kind of union that bullied and bludgeoned its members into taking strike action. I invite the member to take a call draw on his personal experiences in the 1980s and tell us how the Clerical Workers Union bullied and bludgeoned its members into taking strike action. I find that very unlikely. But I am happy to be persuaded. I am happy to be contradicted on that. 
The CHAIRPERSON (Lindsay Tisch) 
: I just remind the member that we are actually in the 21st century not the last century so I ask him to focus on clause 4. 
PHIL TWYFORD 
: Thank you. We are discussing the purpose of the Employment Relations (Secret Ballot for Strikes) Amendment Bill which is to require unions to hold a secret vote of their members to approve a strike before undertaking any strike action. My point is—I do have one and it echoes comments that my colleagues have already made—that this bill is essentially a solution looking for a problem. It is a throwback. Looking at the purpose of the bill it is clear that it is a throwback to a bygone era a previous century as you Mr Chairperson said yourself. I think that the political mentality of the member who brought this bill to the House reflects a view of industrial relations that was shaped in the Mangere Bridge dispute and in the BNZ dispute. It is from a bygone age. It no longer exists. The challenges of the 1970s and 1980s are no longer the challenges that face New Zealand workers and that face New Zealand firms and workplaces. 
The bill requires unions to hold a secret ballot of their members to approve a strike and I am completely baffled as to why the member thinks this is enough of a priority to bring a bill to this House and to waste the time of this Parliament the Parliament of New Zealand. Really it is axe grinding on a huge scale. The member is basically trying to make an ideological point about industrial relations in this country. But no one—and I suspect not even the members on his side of the Chamber—has any particular enthusiasm or affection for this cause. 
It reflects a one-sided and old-fashioned view of industrial relations that we should have left behind a long time ago in this country. It plays to some kind of cartoon stereotype of unions and employers in this country that no longer has any basis in reality. But it does tap into a deep anti-union sentiment that runs through some employers in this country. Some parts of the National Party and the right of politics in this country have made it their mission over the last 20 years to drive unions out of the economy and drive them out of New Zealand society. It is all there in the purpose clause. 
The bill is completely oblivious to the real challenges facing New Zealand today. The real challenges are how we raise the productivity of our firms how we increase the skill level of our workers how we involve workers and tap into their creativity and ideas to actually improve the productivity and the innovation in New Zealand workplaces and how we tackle the appalling levels of health and safety. These are the challenges that bedevil New Zealand firms but this bill— 
JO GOODHEW (Junior Whip—National) 
: 
 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 57 
New Zealand Labour 42; Green Party 9; Maori Party 3; Progressive 1; Mana 1; Independent: Carter C. 
Motion agreed to. 
A party vote was called for on the question  
That clause 4 be agreed to. 
Ayes 63 
New Zealand National 57; ACT New Zealand 5; United Future 1. 
Noes 57 
New Zealand Labour 42; Green Party 9; Maori Party 3; Progressive 1; Mana 1; Independent: Carter C. 
Clause 4 agreed to. 
Hon TAU HENARE (National) 
: 
 I withdraw my amendment set out on Supplementary Order Paper 195 to insert clause 6A and table in its place my typescript amendment to insert new clause 4A. 
New clause 4A When society entitled to be registered as union 
The question was put that the following amendment in the name of the Hon Tau Henare be agreed to: 
to insert the following new clause: 
4AWhen society entitled to be registered as union 
Section 14(1) is amended by inserting the following after paragraph (c): 
“(ca)the society’s rules contain a provision relating to the process for holding a secret ballot for the purposes of the Act; and”. 
A party vote was called for on the question  
That new clause 4A be agreed to. 
Ayes 63 
New Zealand National 57; ACT New Zealand 5; United Future 1. 
Noes 57 
New Zealand Labour 42; Green Party 9; Maori Party 3; Progressive 1; Mana 1; Independent: Carter C. 
New clause 4A agreed to. 
Hon TAU HENARE (National) 
: 
 I seek leave of the Committee to reconsider clause 2 to replace the reference in subclause (1AA) to clause 6A with a reference to clause 4A. 
The CHAIRPERSON (Lindsay Tisch) 
: Is there any objection to that course of action being taken? 
Hon STEVE CHADWICK (Junior Whip—Labour) 
: 
 I raise a point of order Mr Chairperson. We require a little bit more of an explanation behind that proposed amendment. 
The CHAIRPERSON (Lindsay Tisch) 
: Sure I can explain that to you. What has happened is that new clause 4A has just been passed which we have just voted on. What happened is that when clause 2 was debated and passed earlier on—not today but at a previous sitting of the Committee—a mistake was made. What happens now is that the member is seeking leave to reconsider clause 2. If you give leave for this to happen you can vote for or against clause 2 again. It is up for reconsideration. The member is seeking leave of the Committee to reconsider clause 2 to replace the reference in clause (1AA) to clause 6A with a reference to clause 4A which we have just passed. So he is seeking leave to do that. Do you follow that? I just make the point that a mistake was made at a previous sitting of the Committee of the whole House. This corrects that but you have the opportunity to vote for the leave. We still come back to clause 2 again to reconsider it so you have the opportunity to vote for or against it. I am putting the leave. Leave is sought for that purpose. Is there any objection? There is objection. 
New clause 5A Requirement for society’s rules to include secret ballots for strikes 
DARIEN FENTON (Labour) 
: 
 I am speaking to my proposed amendment to insert new clause 5A which deals with the issue about when a society under the Employment Relations Act is entitled to be registered as a union. We went into this in some detail in the Transport and Industrial Relations Committee. We explored the issue as I referred to in my earlier speech of how the objective of the member the Hon Tau Henare could be reached by simply requiring an amendment to the Employment Relations Act that would say that union rules must have “a requirement that a secret ballot of its members who are employed by the same or different employers … and who would become a party to the strike be held before any strike is undertaken.” This is a very very simple approach to it. It meets as I said the objective of the member as stated in his speeches in the things he said on the introduction of the bill and in the things he said in the select committee of requiring that unions hold a secret ballot. It does meet that objective. 
What the Committee may not understand is that under the existing Employment Relations Act unions do have to be registered. They are incorporated societies but even so they have to be registered as a union. This came in with the Employment Relations Act 2000; before that they were just incorporated societies. So first of all they have to have a whole set of rules that are not unreasonable are democratic are not unfairly discriminatory or unfairly prejudicial and are not contrary to law. An important part of section 14 is that the society is independent of and is constituted and operates at arm’s length from any employer. As I said section 14 which this new clause 5A amends was inserted in the Employment Relations Act 2000 when the Act came into being. The Government has been in power now for nearly 3 years and it has not sought to change it. 
We have had a lot of lectures tonight about democracy and freedom of association. Interestingly what section 14 does is require unions to be democratic and have rules but it does not require incorporations to have a similar matching set of rules. So there is a higher test on unions under the Act than on employers and that is very interesting. However unions have accepted that. I know for a fact how it works because as members know I am a former union leader. I know what it requires. If unions want to change their rules they have to have meetings of members—annual general meetings. In my union I used to have 53 meetings to try to provide an opportunity for every employee for every union member throughout the country. We took it very very seriously. Although a statutory declaration of a union is required the Registrar of Unions can check the rules of the union. A high test came in with the Employment Relations Act in 2000 whereby unions have to meet these requirements. 
My amendment to introduce new clause 5A simply adds to that by saying that one of the things that must be in a union’s rules is a process for determining a secret ballot. It is a very democratic process. Rather than imposing it with a really heavy-handed approach as the member’s bill does it simply says the members of the union who pay their fees who are entitled to come along to meetings to determine these things must vote to determine what the process will be should there be strike action. As I have already said and as my colleagues have said most unions already have rules like this actually. This is not a new thing. But my amendment would mean that the objectives of the member in the chair Tau Henare were met by ensuring that there were provisions in a union’s rules which it is required to follow. 
As Carol Beaumont has said under the good-faith provisions of the Act unions are required to follow the rules in good faith. There is a good-faith relationship between union members and their unions and it can be enforced as well. Union members have remedies should the union not act in good faith. If we look at the Employment Relations Act as Carol Beaumont said we see that good-faith relationships are required between employers and employees between unions and employers but also between unions and their union members. So the union’s rules can be enforced if the union acts in bad faith and does not follow the rules. Union members have other remedies as well under the Act. 
The new clause 5A is a compromise amendment. Tau Henare may think he might get some votes in Te Atatu from his bill—he is holding up that nasty little blue leaflet he has got there—but I do not think it will win many votes for him. This is a very reasonable and fair amendment. I am very disappointed. We put it up at the select committee and I was very disappointed that the member did not accept it. I genuinely tried to reach out to the member to find out what he was trying to fix—what the mischief was that he was trying to fix. I genuinely tried to help him find a solution to what he thought was a problem. 
Hon Steve Chadwick 
: Too nice. 
DARIEN FENTON 
: I know; I am very very nice. But I accepted it. The member has been around a long time and I accepted it in good faith. 
Hon Member 
: What did he do? 
DARIEN FENTON 
: Well he rejected it. This amendment was put to the select committee and he rejected it. He voted it down. The National members voted it down. It was put up as a compromise. We sought advice from the officials. 
This amendment is a very easy way of fixing this issue. It will not be easy for unions because they will still have to go through a process of changing their rules. They will still have to go to their members who will vote on it but it stops all the other bureaucratic and compliance nonsense that this bill imposes not only on unions but also on employers because employers will now be checking up on this. There is a cost there. It is a silly thing. My amendment is an easy way out of the dilemma and I think Labour is being extremely reasonable in this proposed amendment. I am not sure how unions feel about it; I have talked to them a little about it. 
Lynne Pillay 
: You’ve taken a punt. 
DARIEN FENTON 
: I have taken a punt. I know that unions will have to do some work and it will cost them money because they will have to have meetings change the rules and that sort of thing. But it is a fair way out of the mischief that the member seeks to solve. Union rules under my amendment will have to have a process for conducting a secret ballot if there is to be a strike of members. As I have said for lots of unions there will not be a problem because they already have a process in their rules but it is a very very simple way out of a problem. It gets past the “hammer to crack a tiny little nut” approach that the member’s bill takes and it achieves the purpose of the bill— 
The CHAIRPERSON (Lindsay Tisch) 
: I am sorry to interrupt the honourable member. The time has come for me to report progress. 
Progress reported. 
Report adopted.