Hipkins Chris: Employment Relations Amendment Bill — In CommitteeText is incorporated into the Bound VolumeHipkins Chris: Employment Relations Amendment Bill — In Committee[Sitting date: 23 October 2014. Volume:701;Page:238. Text is incorporated into the Bound Volume.]CHRIS HIPKINS (Labour—Rimutaka):I have got a number of points I want to raise but first I would like to raise an issue around interpretation which the Minister the Hon Michael Woodhouse might be able to help me with. It might be my misunderstanding of the way the bill has been drafted and some of the drafting changes that have been made to it. If he wants to interrupt me I will happily yield some of my time for him to do so.In the first clause of schedule 1 which talks about interpretation there have been changes made since the bill was originally drafted to remove the definition of “2013 Act” and “principal Act” and simply say now that “In this schedule 2013 Act means the Employment Relations Amendment Act 2013.” If we then move—and I will pick a clause—to say clause 2(6) I think potentially the drafting changes have made this incredibly confusing. If you look at subclause (6) it now says: “Part 6A of this Act”—which I assume means this Act that we are now debating—“(as it was immediately before the commencement of the 2013 Act)”—i.e. this Act that we are now debating—“continues to apply to the restructurings as if the 2013 Act”—i.e. this Act—“had not been passed.”The question I have is how can this Act not apply to this Act if it has not been passed? It seems to me that in the changes to the drafting we have actually created quite a circular situation. You may as well remove the clause altogether potentially. There seems to be a double negative or some other issue around interpretation because previously it said that the principal Act would continue to apply effectively as if this Act had not been passed. But because of the changes to the definitions we now seem to be in this situation where that clause no longer makes any sense. If we look at the remainder of the schedule—I am happy for the Minister to explain; I may have got that wrong or I might be right and I am happy for him to explain—it seems to be that there are these clauses all the rest of the way through this particular schedule. If my interpretation of it is incorrect then he may be able to clear that up. The rest of the schedule and I think the second schedule as well does not seem to make any sense. I am happy to allow the Minister to take the floor and I will come back to the rest of my comments if that would be useful or I could just then continue with the rest of my comments.The second question that I have for the Minister and I hope he will answer this again comes back to issues of interpretation. I suspect the intention of this clause or some of these clauses—and again I am on Part 6A which relates particularly to vulnerable workers and again the Minister could correct me if I am wrong—is to ensure that where the restructuring has commenced prior to the passing of this particular piece of legislation those workers affected by that restructuring that has already commenced would continue to enjoy the same protections they would have had prior to it. My interpretation of it is that this is specifically designed to ensure that that particular part of the Act is not applied retrospectively.The question around interpretation that I have on that is how you would deem the commencement point for a restructuring. For example the contracting-out environment in Part 6A primarily I would suspect relates to contracting-out environments. If a contract has been put out for tender for example but not let at the point that this Act is passed would that provision apply? Often the restructuring occurs after the contract has been awarded but from the employee’s perspective the mere putting out of the contract to tender is the point at which the uncertainty and the vulnerability really starts to kick in. Are we looking at this from the perspective of the employer who does not get the answer until they know whether or not they have been awarded the contract or of the employee whose job is put under question the minute the contract they are subject to is put out for tender? The whole purpose of this particular provision is around providing additional certainty to employees in that vulnerable situation whether they be catering contractors cleaning contractors or whomever.To put a practical context around it if I could illustrate it by way of example if a firm currently contracts with one cleaning company to provide the cleaning of its offices and it has fewer than the number of staff who are covered by the exemption has fewer than that number of staff employed within it—Mr Chair I am just waiting for the bell to ring. I can see you reaching forward—[Bell rung] If it has fewer than that number of staff then that would therefore mean it would be covered by the exemption. That contract is put out to tender and those staff continue to do their jobs in the intervening period while the contract is put out to tender. A new contract is awarded to a different company and at that point of course the restructuring is well and truly under way.But from the staff’s perspective once they know the contract has been put out to tender in this cleaning company—for example it could even be that the company that currently does the cleaning contract does not even apply; it might not even be tendering but it might continue to do the work until the tender has been let—to all intents and purposes for those staff members concerned the uncertainty is there. The restructuring has begun they know that there is a new contract and they do not know whether they are going to be required by the new contractor. Under the Act as it currently exists my understanding is that they would be protected and they would be covered. Would that continue to apply to them once this amendment has been passed? It would seem to me that this particular clause in the first schedule clause 2(6) is intended to ensure that if the restructuring was already under way the exemptions that the bill puts in place would not be applied retrospectively. I think that that particular point of clarification would be a very useful one.I think that those are probably the two issues of interpretation that I would like further clarification on because again—just to come back to my first one around the interpretation clause—“this Act” is referred to all the way through and the striking out happens in clause 2(2) clause 2(3) clause 2(4) and clause 2(5) and basically all the way through. It seems to me—unless I have got it entirely wrong and the Minister in the chair indicated that he thought I might have and I look forward to his detailed explanation of how I might have that wrong—that we have got a bunch of double negatives in here which makes the schedules potentially seem quite redundant and certainly do not seem to make any sense. So if he could deal with that that would be good.Schedule 2 makes consequential amendments to the State Sector Act and to the Wages Protection Act. It makes changes around strikes within the State sector and the provisions around strikes within the State sector. Then there are what appear to be minor changes to the Wages Protection Act.I think I will leave my comments at that. I look forward to the Minister’s clarification of those two points if he is able to do that for us.