Franks Stephen: Holidays Bill — Instruction to CommitteeCWH In Committee 
Franks Stephen: Holidays Bill — Instruction to CommitteeCWH In Committee 
[Volume:614;Page:10548] 
STEPHEN FRANKS (ACT) 
: 
 I rise on behalf of the ACT party to speak on Part 3 of the Holidays Bill. This is the bill that was supposed to make the calculation of holiday pay and the arrangements between employers and employees simple easy to understand and what they would have expected if asked—in other words intuitive. 
Part 3 deals with penalties and enforcement. I will go quickly though the points that I see there. I did not sit through the select committee process for which I am thankful when I read that report but I will look at it as I imagine an employer an accounts clerk a wages clerk or human resources coach—as they are now called—would in trying to work out what it is they must do. First clause 66 is yet another imposition of pain-in-the-neck explanation that the diligent employer will have to make. Subclause (2) states that when “an employee enters into an employment agreement with an employer the employer must inform the employee—(a) about his or her entitlements under this Act;” We do not know how much has to be done there. 
If this legislation was really just recording the standard assumptions and the general knowledge that everyone has—the folklore as it were—about holiday pay it would be superfluous. If this legislation was really trying to facilitate employment and trying to help the marginal employers—the ones who could well provide a job as long as it is not too much trouble for them—it would be trying to avoid the formalities accompanying employment. It would be trying to ensure that employers who are not all that sophisticated do not worry about the pitfalls—about what they had not done. When I look at the penalty provision I see that that was maybe recognised by the select committee because it has omitted as far as I can see a penalty for a breach of clause 66. What kind of obligation is it when there is no penalty? Is the provision there just to be educative? Is that what its purpose is? Is it more of this law that is not really law—more of just slogans? I cannot tell. 
 As I look also at the arrangement clause 66 reminds me of just how much complication destroys employment. The emergence of labour contractors and human resource managers and the outsourcing of consultants is probably a reflection of what the Hon Margaret Wilson has done to employment law. People who would otherwise have a direct relationship with employees will have to employ middlemen to control and deal with their employees because they simply cannot run the record-keeping that is required. Just the holiday record-keeping clause—just the amount that has to be kept by the employer for holiday and leave records—has subclauses (a) (b) (ba) (c) (ca) (d) (e) right through to (ga) and (gb) and right through to (m). That is the number of particulars that must be kept just about holidays bereavement and sick leave. What do we find that the penalties are? They are $5000 for an employer who is an individual and $10000 for a corporate that fails to comply with these provisions. 
I have noticed something possibly more significant for which there seems to be no penalty. No penalty is provided for breaches of clauses 28 to 33 and those are the clauses that deal with these complicated arrangements for statutory holidays. There seems to be no expectation of enforcement. I can hardly believe it—there must be general enforcement powers somewhere else and perhaps the Minister can explain it. This detailed prescription of when a company can close down and require everyone to take annual leave at one time of the year seems to have no parallel enforcement provisions. That might be material. It might be that this is the saving loophole that employers are looking for. It seems that the Minister the Hon Margaret Wilson decided that it was not appropriate for example for an employer to keep a skeleton staff going at a plant. Clause 28 which I thought would have an enforcement provision in Part 3 states that one can have a closedown period.