Garrett David: Employment Relations Amendment Bill — First Reading Second Reading 
Garrett David: Employment Relations Amendment Bill — First Reading Second Reading 
[Volume:651;Page:354] 
DAVID GARRETT (ACT) 
: 
 I rise to make a short contribution on the second reading of the Employment Relations Amendment Bill. The picture being painted particularly by Ms Bradford and others on the Labour side is of most if not all employers. I notice that the only one who did not paint that picture was Mr Anderton who has been an employer himself. But the story from the Opposition side has been almost universally about the horrid horrid employer and the poor victimised employee. Yes that does happen but we have heard no horror stories from the other side. Ms Bradford noted I think correctly that at the hiring stage there is an imbalance of power between employer and employee and it is on the employer’s side. 
Darien Fenton 
: Oh! 
DAVID GARRETT 
: No no—I said that the balance of power is in favour of the employer. The employer until he or she makes that magic decision and says “You’re hired.” he or she for whatever reason in his or her own head can refuse to make the offer. The employer at that point—up to when that hiring decision is made—does indeed hold the balance of power. But once that decision is made the balance of power shifts hugely. 
As I said earlier in my first contribution I have practised employment law for 15 years—since it became a speciality—mostly in fact representing employees successfully very successfully. It was often a case of shooting fish in a barrel because of hapless employers who got one little detail of the process wrong. That is all that was needed. For an aggressive employment lawyer as I was who knew my stuff that is all that was needed. If the guy did not give 3 hours or a day to get legal advice—bang he was gone. If he made a decision too quickly went and had a cup of tea out the back and did not leave it overnight—bang he was gone. We heard a story from Ms Dalziel and who but a most hard-hearted person could not feel sympathy for the young fellow who went and took his life—I am trusting that those facts are as stated—of course that is terrible. Who would wish that to happen?  
But there are horror stories on the other side. I dealt with several of them and I know of many many more. One that sticks in my mind is from a few years ago and if I have got the facts not completely right I hope the House will forgive me but this is largely correct. The owner and employer of a small rest home arrived late one night to check on the residents and found one of the nurses badly affected by cannabis and residents lying in their own faeces and urine in their beds. The employer to use the vernacular went off her head and sacked the nurse on the spot. She the employee was gone right there. In the Employment Tribunal as I think it was in those days the referee had no difficulty at all saying that this was a substantively justified dismissal. In other words there was every good reason to sack this person without notice. But process was not followed. The referee went further: the referee bent over backwards to try to be fair and said that although this was an unjustified dismissal because of lack of process the employee had contributed 75 percent I think from memory to her own misfortune. So whatever remedy was to be granted to her was reduced by 75 percent. But the employer still lost because the employer I think a company had to pay 25 percent of $10000 or $15000—I cannot remember—plus 25 percent of the employee’s legal costs plus 100 percent of the company’s own legal costs. 
I am not saying for one second that every employee is like this. Of course they are not. I have brought many personal grievance cases for employees that were entirely justified and they got paid well out of them. But often it would be a case where frankly the employer had simply made one little mistake and that weighs very heavily on employers when making a decision to employ as I said in my first contribution. 
This bill is in fact a very moderate bill. It protects employees for 90 days. As I said at the start of this contribution Mr Anderton was the only speaker who acknowledged that there were bad employers and good employers. There are also bad employees and good employees. It is not difficult for a slacker to put on a good show for 90 days and then suddenly on the 91st day—bang. I acted for some—I should be ashamed I suppose—“serial PGers” as we used to call them. They knew more about employment law than I did and were intelligent people and well read. They would even tell me the latest case. I am not making this up. OK they are a minority but they happen and any employer who is properly advised is aware of that when he is thinking of hiring a new person. So the situation is not one-sided. It is not the poor hapless powerless employee and the horrid lord of the manor situation entirely. Like everything in life it is not quite that simple. 
Trial periods as another speaker in the Government noted are now common throughout the Western World. The media reported yesterday—and I am not certain whether it is correct—that only two countries in the OECD do not have trial periods where personal grievance procedures are precluded: Denmark and New Zealand. So we join the majority if this bill is passed in its present form. I understand that until 1998 all new public servants were required to serve trial periods with no redress for a minimum of 6 months and up to 2 years. Well that would have saved a lot of money would it not on some of the bad decisions? 
The other side said quite rightly in my view that a select committee process is desirable in most situations. But this bill effectively has already been there. It is a version of an earlier bill—Dr Mapp’s bill—and incorporates I understand some of the several hundred submissions that were made to the select committee at that time. Effectively the bill has already been scrutinised by a select committee; submissions were received. I understand that employers at that time were unanimous that this was a good idea in terms of promoting employment. In comparing the two bills I can see they are quite clearly different. But they do not need to have much difference to make quite a significant difference. It is like those words “shall” and “may” in law. They are only single words but they make a world of difference. This bill effectively has already been scrutinised by a select committee. 
Employing someone is a major decision for any business. It seems to me a bit as if the work expands to fit the time available in large firms and the employing process can last 3 weeks but for small businesses it is a major commitment. They do not have human resources departments normally in my experience. Firms with nothing fewer than about 100 employees have human resources departments but the human resources managers in small businesses are the owners. They have to set aside time to interview people try to make an assessment try to check references make a judgment and hope to hell they get it right because if they do not they pay the penalty. 
As I said at the start of this contribution I am quite firm in the view that after the hiring decision has been made the power and balance shifts very much to the employee’s side. The speakers on the other side said something like “All the employer needs to do is be fair.” That is not so—it takes only one small mistake of process. I think in 60 perhaps 70 percent of employment disputes where money is paid out through the Employment Relations Authority the reason is process. The answer is generally that the decision is substantively justified but procedurally unfair and that unfairness can be tiny. 
This is not an unreasonable bill. It is a bill that will promote employment and I would have thought that every member of the House would be inclined to support it. 
Debate interrupted.