Mallard Trevor: Employment Relations Amendment Bill — Second Reading In Committee 
Mallard Trevor: Employment Relations Amendment Bill — Second Reading In Committee 
[Volume:651;Page:395] 
Hon TREVOR MALLARD (Labour—Hutt South) 
: 
 I ask the Committee for a little tolerance and leeway during the initial speech on Part 1 to indicate the overall thrust of the Opposition in the Committee stage in order to draw the attention of the Committee to some amendments. Some are in Part 2 but in order to make sure that people are aware of them they are on the Table; we have done that as quickly as we can.  
The first amendment which is in my name makes it clear that mediation will be available even to people who are no longer employees—people who have been dismissed—because as the bill is drafted it applies only to people who are employees. Of course once one has got the sack one is no longer an employee and the mediation promised by the Minister would not apply. The second amendment is the one supported by Anne Tolley on YouTube—it was widely circulated—which makes it clear that people within schools are exempted from this. 
Hon Anne Tolley 
: Stop making it up. 
Hon TREVOR MALLARD 
: The member should look at herself on video and just continue to tell the truth.  
The third amendment makes it clear—again picking up the commitment given by the Minister of Labour—that employers are not allowed to dictate that people are to have these trial periods; it has to be a matter of agreement. So if it is a requirement of employment by an employer it will void that clause. That will provide new subsection (4A) for new section 67A which makes it clear that a trial provision as a requirement is something that will be voided and will cause it not to take effect.  
Another amendment is a requirement to put notice of termination in writing. That is relatively simple and something I think any reasonable person would support.  
The next proposal puts some pretty limited requirements on employers before the removal of personal grievance rights applies. That one requires the employer to set out in writing any concerns that could result in the employment being terminated and the behaviour required by the employee to address those concerns and provides a reasonable time for people to perform according to that written notice.  
The last amendment makes it clear that the probation period applies to a position rather than a particular individual. That makes it clear that the trial provision must be fully disclosed in any position description or material seeking applicants for the position and it cannot be subsequently added to the employment description or any subsequent employment agreement.  
With this series of amendments we have attempted to encapsulate the commitments that have been made by the National Party in their description of this bill. I think the amendments could well be described as the “keep Kate honest” clauses for six of them; the seventh one is the “keep the Minister of Education honest” clause. Here we are attempting to be helpful to the Government to make sure that it has good legislation—it will never be good but at least it will be designed to do what it said it would. We think that these are minimal changes that would have occurred if in fact the bill had gone to select committee.  
I am obliged to tell the Minister of Labour that we will be opposing the bill and every clause in it at every opportunity we have between here and Saturday or next week if we have the opportunity. 
Hon Member 
: Make it next Saturday! 
Hon TREVOR MALLARD 
: We are not going to be here Saturday? Oh I thank the member! When are we leaving? Can we get our flights booked? When will National throw in the towel? Friday—it will throw in the towel on Friday. That is good; we will all change our bookings. I will get the taxi booked for Friday and not for Saturday as would otherwise have been the case.  
I go now to Part 1 in more specific detail—and I thank you Mr Chairman for your tolerance of me working slightly outside Part 1 in the first 5 minutes but I think now we should come back to the bill and in particular Part 1 of the bill. I should say next that National indicated during the campaign and before the campaign—and I remember Kate Wilkinson at the Backbencher the day she earned the “KiwiSaver Kate” moniker indicating this—that National would keep the Employment Relations Act but it would make significant changes to it. She is right. This is one of the very significant changes that has been proposed and I am wondering whether it would in fact be appropriate to rename the Act as a result of the approach she has taken.  
It is certainly not an Employment Relations Act; it is an “Employment Relations Destruction Act” or something similar as a result of this change. The purpose of the Act is “to provide when an employment agreement may specify a trial period of 90 days or less” but we all know that this can already happen. We all know that it does happen. We had pleas from National on behalf of the ex-prisoner population of New Zealand—which I thought was interesting from National—for trial periods. I think just about everyone on this side of the Chamber knows that lots and lots of former prisoners have trial periods. Often when employers want to take on or look at ex-prisoners they will agree to have a trial period. Some of those trial periods actually occur while they are still prisoners. That is an interesting arrangement. It happens quite often in the Hutt Valley and the Hutt Valley is better off for it because in an area of labour shortage—at least up until recently rural labour shortage—it means that people come out have their trial periods and at the end of their prison sentence they quite often go into full-time employment having already had what is effectively a probation period. They often still have a probation period from the other perspective as well; I think that is important.  
The other part addressed in the “Purpose” clause is the changes to the Employment Relations (Breaks Infant Feeding and Other Matters) Amendment Act 2008 relating to KiwiSaver. I want to make it clear that this is the companion measure to the shocking thing that occurred yesterday where as workers get a wage increase employers are allowed to take the employer’s contribution to KiwiSaver out of the wage increase that is going to the worker. 
Hon Parekura Horomia 
: Unbelievable! 
Hon TREVOR MALLARD 
: Well it is just unfair and it is unreasonable. When I had discussions with some of the very big employers in New Zealand who were contemplating doing this in the period before the election and before we passed the legislation when they looked at the question every single one of them backed off. Every single one of them accepted that it was not fair. Every single one of them saw that it was wrong. But a lot of them saw that if they took that negative backward approach what would happen in the future—and I think it is almost inevitable now—is an approach that looks more like an Australian one where the 9 percent is a strict employer contribution and there can be no question of trade-off at all. I think if National goes down this route—and from yesterday it is clear it wants to go down that route—we will end up with something that is not a shared responsibility between the taxpayer the employer and the employee; it will go on to the employer completely. I think that would be regrettable because I think the current cooperative arrangement—although I note that “cooperative” is something that is now on the proscribed list for Cabinet papers! National has put out a list of words that are not allowed in—