Employment Relations Amendment Bill — In CommitteeText is incorporated into the Bound VolumeEmployment Relations Amendment Bill — In Committee[Sitting date: 23 October 2014. Volume:701;Page:235. Text is incorporated into the Bound Volume.]Employment Relations Amendment BillIn CommitteeDebate resumed from 22 October.Part 2 Application savings transitional and consequential provisions (continued)SUE MORONEY (Labour):In beginning my contribution on Part 2 of this bill I say I was very remiss yesterday. I was quite excited about getting the call from you Mr Chairperson Mallard in your capacity as the Chair for the first time and I failed to congratulate you on your election to that position. So I take the opportunity now to do that and I look forward to taking many calls under your chairpersonship and your speakership in fact.We are on Part 2 of this ugly—I have to say—bill which is the first act of this Government under its new term. And of course yes the Government is on the attack against workers. Part 2 is the part that really bothers me. Although much of the destruction is done in Part 1 actually Part 2 is about the way in which all of this destruction is going to be brought about in the workplace.As Iain Lees-Galloway was saying in his contribution yesterday it is unusually retrospective. We hardly ever deal with retrospective pieces of legislation in this House but when it comes to attacking the rights of workers that National Government has no shame. It has no shame. Part 2 is where it makes this retrospective. What Part 2 says is that there is no need to conclude collective bargaining—that there will be no obligation on parties to actually conclude and come to a collective agreement with each other about wages and conditions. And the Government in its hurry to do that wants to make sure that collective employment agreement negotiations that are already under way are going to be captured by this legislation.But in order to understand why the Government has done it this way I think we need to backtrack a little. The history is this. The previous National Government really wanted to pass this piece of legislation about 4 or 5 months ago but there was one big problem: it lost the numbers. It lost the numbers to pass this legislation because John Banks had to leave Parliament because he is on his way to jail. That is what has actually happened here. The Government wanted to pass this legislation at that point in time but when Mr Banks had to relinquish his seat in this Parliament the Government no longer had a majority with which to pass this piece of legislation. That is how bad it is.The Government’s other support partners at the time would not support it. They would not support it because they know the damage this is going to do to the New Zealand workplace. And they know the damage this is going to do to workers and their families. At a time when we face increasing child poverty in this country what is the current Government doing? It is moving to ensure that wages will be lowered—that wages will not be able to increase with the cost of living—because there will be no pressure no legislative requirement on employers to conclude bargaining and to actually have bargaining result in a collective agreement.Part 2 quite specifically says that it applies to all bargaining whether the bargaining commenced before on or after the commencement of this piece of legislation. So workers who are currently engaged in collective bargaining with their employer are going to suddenly find on the passing of this bill that their employer will not be required to conclude an agreement with them. As we sit here in New Zealand today workers are undertaking bargaining. A lot of those workers are in the health sector interestingly enough. A lot of workers in the health sector are undertaking bargaining at the moment. It is those workers whom this Government is after. There are a lot of expired employment agreements happening in the health sector. So right now as we sit they are engaged in a bargaining process.What the law currently says is that there is a requirement to conclude bargaining and for it to result in a collective employment agreement. That is a very rational and sensible thing which has actually seen New Zealand though quite an interesting period of time. The economy has been in recession yet there have not been extraordinary outbreaks of workers making unreasonable demands and using this part of the legislation to hold their employers to ransom. We have seen none of that. We have seen absolutely none of it.I asked a question yesterday and still have not had an answer from anyone opposite about where they can cite the example of employees of workers making unreasonable demands and getting unreasonable wage increases because of this duty.The CHAIRPERSON (Hon Trevor Mallard):Order! I am just now going to advise the member to come back to Part 2 of the bill which could not possibly involve questions that were asked yesterday.SUE MORONEY: The duty to conclude bargaining is what Part 2 actually says can start happening before the Act is even passed through this Parliament. That is the point that I making—that actually it is unusual that it is done in this way. Many of those workers are engaging in collective bargaining right now. They are already in that process and yet this part Part 2 says that it does not matter that they have already initiated the process or that when they initiated it there was a whole set of different laws in place. This part says that despite that if they have initiated bargaining before the commencement of this Act the rules are going to change. The rules are simply going to change midway through their bargaining process on them.Why would that Government be so bloody-minded about having retrospective legislation? Well I think the answer is the number of employment negotiations that are under way in the State sector—the sheer number of them. I think health is going to be one of its major targets. We have got the resident medical officers’ multi-employer collective agreement that is being negotiated at the moment. We have got the radiation technologists who are negotiating their collective agreement at the moment. We have got the stenographers. We have got the clerical and administrative workers in the health sector who are negotiating. We have got the clinical physiologists. Importantly we have got the nursing one. That is the big one that is coming up. That is where the big dollars are to be saved by this Government and that is what it is after. It wants to suppress the wages and conditions of nurses working in our public hospitals.Then we go on to the education sector and we find that there are a few coming up in that regard as well. I think this is what it is about. The secondary teachers’ collective agreement expires on 30 June 2015 and Government cannot wait to make sure that those teachers are going to face a situation where the cards are all on the employer’s side because there is no duty to actually conclude collective bargaining. It is the teachers the nurses the police the firefighters and all of the other important public servants whom we rely on for our social services in this country whom that Government is after and it is absolutely plain in Part 2. The Government is making sure that the nurses’ employment agreement which is up for negotiation at the moment will be captured by this removal of the duty to conclude bargaining.So it is absolutely clear in Part 2. As I said before it is really unusual for there to be retrospective legislation passed in this Parliament. Why is it that this Government would be so keen that this legislation applies to bargaining already under way? Well it is clear that it is because of the type of work where that is existing at the moment. I have listened carefully to those Ministers as they have argued about containing the cost of public services. Well when it comes to our education and health services that can really mean only one thing. That can mean only that they are after wages.I am thinking about the wages of the nurses who are going to be affected by Part 2 because Part 2 is going to apply to them even though they have already initiated collective bargaining. Thinking about their wage movements they have had virtually no wage movements under the National Government. They have had over the course of the last 6 years about a 6 percent increase in their national collective employment agreement. That is less than the rate of inflation so the nurses have already been paying for the savings that the National Government has been making in its surplus in its bid to make its Budget balance.DENISE ROCHE (Green):Like the previous speaker Sue Moroney I too have not had the opportunity yet to congratulate you Mr Chairperson on your promotion—I think it is a promotion—to assistant speakership.I am going to restrict my comments to schedule 2 which is under discussion in this part of the debate in Committee of the whole House. Schedule 2 looks at the consequential amendments to other Acts. In particular I want to address my comments to the changes to the Wages Protection Act 1983 which are about ensuring that employers can make deductions from the pay of workers who are taking partial strike action. Rather sneakily this amendment to the parent Act the Wages Protection Act actually reduces the amount of notice that an employer has to give to an employee that they have made an overpayment. In the existing Act it says that it should be 5 days’ notice but this amendment also makes quite a major adjustment—it says that it will be 1 day’s notice. This is quite aside from the whole discourse around what a partial strike is or how much an overpayment is. That is dealt with in the previous part but I must make the point that it is absolutely unclear as to how much workers will be losing when they take partial strike action.What is a partial strike? Lots of people are not clear about it and certainly it is not tested very well in Part 1 of the Act but of course we are talking about schedule 2 and Part 2 of it. My understanding from my experience as a former union official has been that partial strikes have not only been around refusing to work parts of an employment agreement or parts of your normal work but they have also been around things like bending some of the rules and those rules include things like not wearing the proper uniform wearing a badge and wearing different colours from what is described in your employment agreement. Workers have been able to be very creative about their partial strike action. We must remember that strike action occurs only after a vote and it occurs only as a measure of last resort when the negotiations between workers and employers have got to a point where there needs to be a bit of force applied to the relationship with the employer to get it to agree to decent pay increases.I have seen some really remarkable and interesting partial strikes in my experience as a union organiser. Perhaps the most notable one was when a bunch of workers refused to wear pants—this was about the uniform allowance not being paid. They agreed that because the employer had breached the employment contract by not paying the uniform allowance they would wear only half the uniform so they did not wear pants. Fortunately they all worked behind booths just like this. It was not a problem for any members of the public but it was certainly embarrassing for the union organiser anyway.The CHAIRPERSON (Hon Trevor Mallard): Order! I am now going to ask the member to come to not just mentioning Part 2 but actually debating Part 2. It is a really good story but not relevant.DENISE ROCHE: I was mindful Mr Chairperson that yesterday you asked for novelty.The CHAIRPERSON (Hon Trevor Mallard): Novel and relevant.DENISE ROCHE: OK. Thank you very much for that. Part 2 and schedule 2 of the amendment bill talks about these changes to the Wages Protection Act. If we look at what the Wages Protection Act was enacted to do it is actually about protecting wages. I believe that it is a sneaky and sinister attempt to amend the Act by reducing the amount of notice that goes to workers when they are classifying an overpayment when someone takes a partial strike and that that is an unfair way to do it because there has not been any kind of discussion in the public arena. There have been no submissions on this part of the bill about changing the Wages Protection Act as a consequence of the amendments to the Employment Relations Act. That strikes me as incredibly unfair and as a mockery of the democratic tradition.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.Hon MICHAEL WOODHOUSE (Minister for Workplace Relations and Safety):I appreciate the honourable member’s intervention and some very good technical questions around the transitional provisions. Can I start with the first matter—the double negative. I have very carefully considered it and I have checked with my legal experts that the references to this Act and the 2013 Act are actually correct and it does not create a double negative. That is probably for reasons that are a little bit above my small legal brain but I am reassured that there is no tension around making the clause redundant.The member also raised a very good question in respect of the timing of the new provisions on contracting. “Restructuring” is actually the generic term that is used for contracting out and it is more likely now because many of the people who are affected by these provisions are now in organisations—very few large organisations now conduct their own cleaning. I can think of one. It was a hospital that I ran. It still does it. But generally speaking what we talk about is restructuring and generically that term is used. It is actually the retendering of a contract that is already contracted out. For example if I was to retender the contract and Mr Hipkins was to win it and Mr Nash was to lose it the timing of that in law would be the awarding of the new contract. Therefore if that did not occur until after the law became effective then the new provisions would apply. But if the contract was started and was awarded before the new transitional provision became effective then it would not.It is a question of the facts of each individual case so it is hard to say in all circumstances what would happen but I am satisfied that the definition of restructuring as is contained in section 69 is clear enough to make employers—outgoing and incoming—pretty clear about what their obligations are. But thank you for raising it.Dr DAVID CLARK (Labour—Dunedin North):I again have a question that I hope the Minister in the chair Michael Woodhouse can provide some clarification on. The Minister might like to follow the logic and explain to me whether I have understood it correctly or not. Part 2 refers to the new schedule 1AA that will be inserted into the Act and that schedule contains new section 8 which states that “Despite section 95B of this Act (as inserted by section 56 of the 2013 Act) an employer must not make a specified deduction of pay in relation to—(a) any partial strike that ended before the commencement of the 2013 Act; or (b) any period of a partial strike that occurred before the commencement of the 2013 Act.” The effect of that new section is that it means that although the proposed strike tax in clause 56 in Part 1 cannot be applied to partial strike action that has already occurred it can apply to partial strikes already under way from the date of the Act’s coming into effect which effectively means that workers who have already committed to strike action with no expectation of pay deductions could find themselves penalised.For me natural justice is at issue here. If the workers are already engaged in partial strike action and it is of an ongoing nature the Act comes into effect. They have already committed to that course of action and they can then be penalised for a decision that was made before the Act was even thought of or at least certainly before it was being considered by this Parliament. That to me raises an issue of natural justice and I am wanting to know whether the Minister is trying to create a precedent here that suggests that natural justice should no longer apply.I personally see some parallels in a local case in Dunedin North where we had some school buses that were taking students to their nearest State school and not much further but delivering them to other schools in the area. A rule was interpreted differently by the Government that was in the last Parliament which took away the right of students to travel on that bus unless they were going to the nearest State school. It was an interpretation of the rules that was different from that which had applied before. I am sure that the Minister in the chair is familiar with this example because he had a transport portfolio at the time and I did petition him at some length to consider the natural justice aspects of taking away the right previously enjoyed by students to travel to any school in the city on the school bus provided it took them only as far as the local State schools.Effectively once the rule was reinterpreted the students were then allowed to travel on the bus if they had the right uniform on and were not allowed to travel on the bus if they did not have the right uniform on. Despite the fact that they had signed up for that school despite the fact that their parents had invested in the uniforms for that school and despite the fact that they were engaged in the sports teams at that school those parents and those children who had invested in that particular school were then told that natural justice did not apply and effectively that they were no longer entitled to travel on that bus—The CHAIRPERSON (Hon Trevor Mallard): I am now going to interrupt the member and ask him to stop the novel and get back to the relevant. Thank you.Dr DAVID CLARK: I will come back to the point that I am trying to make which is one of natural justice. Where there is an expectation of one course of action when an action was initiated and there is a change of understanding—in this case a change in the law—that can have a very different effect. So in clause 8 the worker who is already committed to strike action with no expectation of pay deductions finds himself penalised. I am wanting to ask the Minister if this was the intention when this was drafted. Was this drafted specifically to punish those workers who had already committed to strike action in order to curtail their existing strike action or is this an unintended consequence?CHRIS BISHOP (National):I move That the question be now put.STUART NASH (Labour—Napier):I have the same sort of confusion that Mr Hipkins and Mr Clark had. Again I am just a simple boy from the Bay but I am wondering whether the Minister for Workplace Relations and Safety can clarify this. This is about new schedule 1AA. We are looking at clause 2(5) “Amendments to Part 6A (Continuity of employment if employees’ work affected by restructuring)”. What it actually says in clause 2(5) of this schedule is: “Subclause (6) applies to restructurings … for which the agreements are concluded before the commencement of the 2013 Act even if the restructurings they relate to are to take effect after the commencement of the 2013 Act.” For me I am not too sure what the definition of “concluded” is here. Part 6A of the Employment Relations Act as you know is a wide-ranging section and this covers exempt employers and it talks about contractors and contracting out.The reason why I am focusing on this is that it could have major ramifications because this relates to section 69C of the Act. Depending on what figures you use between 97 percent and 85 percent of New Zealand companies are actually small to medium sized companies so the employers are exempt from this. That is about 60 percent of all workers. So what is the definition of “concluded”? Does this actually relate to all restructurings that are concluded going way back when or does it relate to restructurings that were actually concluded or had started under the 2013 Act? Just a little bit of clarification there would be good.I would also like to talk about clause 2(7) of new schedule 1AA because again it says: “Sections 80 86 90 91 93 and 94 … apply in relation to strikes and lockouts that commenced before and continue on or after the commencement of the 2013 Act …”. I suppose the concern I have about this schedule 1AA is that there is a mixture of retrospectivity and clauses that relate to once the Act had been passed. The inconsistency is I think going to make it very difficult for both employers and employees to get their heads round the meaning of this. What I do fear is that in a lot of the cases that are going to go before the Employment Court these clauses are going to be interpreted through jurisprudence rather than through this legislation and I think it could be a little bit clearer.Let me talk about something else as well. Clause 2(1) of new schedule 1AA is called “Amendments to section 4 (Parties to employment relationship to deal with each other in good faith)”. We recognise this is part of the overarching principle under which industrial relations are undertaken. We talk about natural justice and the right of people to actually have the ability to defend themselves and have a fair trial. What this subclause says is: “Despite the amendments made to section 4 of this Act by section 4 of the 2013 Act section 4 … continues to apply in relation to proposed decisions … (a) if the proposed decision was notified to the employee before the commencement of the 2013 Act; and (b) whether the final decision on that proposal was made before on or after the commencement of the 2013 Act.”So how I am reading this is that if there is a case before the Employment Court at this point in time or when this bill passes into legislation then you use the old piece of legislation. This is again where the confusion arises for me because what we have here is whole lot of law around disclosure. To me that sort of cuts to the heart of natural justice. What the new provisions in this legislation say is that an employer does not have to disclose information to an employee around any restructuring if the employer thinks that that may be privileged or may breach the privacy of the person who has applied for that information. So this is where this gets a little bit confusing for me. There are some parts to this schedule that are retrospective and some parts that are not retrospective but—[Bell rung] Can I just elaborate on this a little bit further because I think it is quite important? Thank you for giving me the right to continue for another 5 minutes because I think it is important.Hon Simon Bridges: That’s by definition. You don’t need to say that.STUART NASH: I think that that Minister over there Simon Bridges who was a Minister of Labour has actually got off quite easily with his interjections. The reason that that former Minister is interjecting is that I have no doubt he felt the heat and he needed to get out and jump into the positions of Minister of Energy and Resources and Minister of Transport.The CHAIRPERSON (Hon Trevor Mallard): Order! Back—thank you.STUART NASH: Sorry I just had to respond to the former Minister.The CHAIRPERSON (Hon Trevor Mallard): Do not respond to irrelevant interjections.STUART NASH: I am sorry—sorry. I know the Minister is irrelevant.Chris Hipkins: I raise a point of order Mr Chairperson. I think you will find that there are in fact Speakers’ rulings that entitle a member to reply to interjections from another member regardless of whether they are relevant to the topic of the bill. I want an indication from you as to whether in fact you are changing those.The CHAIRPERSON (Hon Trevor Mallard): The member is right but the fact that one member is disorderly and frivolous does not give another member the right to do the same so it is a warning to both members.STUART NASH: Sorry I apologise for that. I should have known better and I should not respond to that member.The thing that concerns me about what we have got here is that the reason that the Minister gave for the change in this legislation is that it created a whole lot of confusion. That was the reason for this change. There was one case in particular and it was Vice-Chancellor of Massey University v Wrigley and another in 2010—in fact one of the Chair’s former colleagues. There is a whole lot of case law around this. The reason why the Government said it needs to change the legislation is that it created a whole lot of confusion. The way I am reading this is that it does not get rid of the confusion; it just adds to the confusion. One thing that the regulatory impact statement did actually say is that the ministry was unsure of the impact of the old law which will continue until new cases come on. So the ministry was basically putting up its hands and saying that there was no impact. I just think that this creates a whole lot of confusion because there is a lot of case law around this. I am just really concerned that what we are going to end up with is the courts determining what is relevant and what is not.I would just like to mention one other point and again this is about clause 2(7) in new schedule 1AA. I talked about this subclause earlier and I should have elaborated a little bit further. We have got paragraphs (a) and (b) of clause 2(7) and they contradict each other. One sublcause (7)(a) is actually saying: “the union or the employer (as the case may be) must give notice in accordance with this Act (as amended … ) on the commencement of the 2013 Act:”. Subclause (7)(b) says: “however if a notice given by the union or the employer before the commencement of the 2013 Act—(i) complies fully with the notice … no further notice is required:”. Then subparagraph (ii) says that if the notice “complies [only] partly with the notice requirements of this Act … [then] those notice requirements are satisfied by the union or employer providing notice of the additional matters …” and then the legislation does come into play.So even one subparagraph above the other we get a whole lot of contradictory statements. My major concern about this is that it is going to provide a whole lot of confusion for the people who need to interpret this legislation whether they are the employers or the employers’ lawyers or the employees or the unions or the delegates or whoever takes the cases. There is a lot of confusion. That confusion will disappear over the space of 2 or 3 years once the legislation beds in. I think what will happen—Sue Moroney: They won’t get it right now though.STUART NASH: I agree with that member who was actually one of the architects of this. What is going to happen I think is that we are going to have cases in the Employment Court running in parallel. We are going to have cases in the Employment Court that are supposed to look at the old law and interpret it as per the conditions of the 2013 Act and then we are going to have cases running in the Employment Court where they are having to look at the new law and they are going to have to develop case law around that. So not only is the judiciary going to end up with a little bit of confusion—with all due respect to them because they are intelligent people—but I just see a lot of confusion here.The other more important thing is that I see a lot of cost as well. The cost of taking one of these cases to the Employment Court is actually quite substantial. Often the only people who end up taking these cases to the Employment Court are unions because the workers cannot afford the cost of it. Before this came in the legal precedents had taken away a lot of the ambiguity. What this does now especially with the retrospective and current parts is to add that ambiguity back. That makes the ability of the employee to take a grievance to court just that much more costly when the uncertainty arises and I think it may just be a greater deterrent. So what I would like to see is actually a definitive answer around: is it going to be retrospective or once this law is passed will it just all happen?SARAH DOWIE (National—Invercargill):I move That the question be now put.The CHAIRPERSON (Hon Trevor Mallard):I have no reluctance at all to accept the question. I do want to make a comment and that is that what we had earlier was I think a very good example of some specific questions being asked and answers. If that occurs and no new matters are brought up then I am not at all reluctant to take the closure.A party votewas called for on the questionThat the question be now put.Ayes64New Zealand National 60; Māori Party 2; ACT New Zealand 1; United Future 1.Noes55New Zealand Labour 30; Green Party 14; New Zealand First 11.Motion agreed to.A party votewas called for on the questionThat Part 2 be agreed to.Ayes62New Zealand National 60; ACT New Zealand 1; United Future 1.Noes57New Zealand Labour 30; Green Party 14; New Zealand First 11; Māori Party 2.Part 2 agreed to.Schedule 1The question was put that the amendment set out on Supplementary Order Paper 1 in the name of the Hon Michael Woodhouse to schedule 1 and the following amendment in his name to schedule 1 be agreed to:in the schedule 1 heading replace “s 64” with “s 65”.A party votewas called for on the questionThat the amendments be agreed to.Ayes62New Zealand National 60; ACT New Zealand 1; United Future 1.Noes57New Zealand Labour 30; Green Party 14; New Zealand First 11; Māori Party 2.Amendments agreed to.A party votewas called for on the questionThat schedule 1 as amended be agreed to.Ayes62New Zealand National 60; ACT New Zealand 1; United Future 1.Noes57New Zealand Labour 30; Green Party 14; New Zealand First 11; Māori Party 2.Schedule 1 as amended agreed to.Schedule 2A party votewas called for on the questionThat schedule 2 be agreed to.Ayes62New Zealand National 60; ACT New Zealand 1; United Future 1.Noes57New Zealand Labour 30; Green Party 14; New Zealand First 11; Māori Party 2.Schedule 2 agreed to.Clauses 1 to 3SUE MORONEY (Labour):The debate now moves to the “Title” “Commencement” and “Principal Act” clauses. I want to point out at the start that normally during this part of the debate people are inclined to come up with witty titles that they think that the bill should be called but this is such a serious issue and such a serious attack on workers’ rights in this country that I am not inclined to go anywhere near coming up with humorous titles for a bill that has no humour in it whatsoever. It is called the Employment Relations Amendment Act and to suggest that this is about improving employment relations I think is completely and utterly incorrect.I noted in the Speech from the Throne earlier this week that the Prime Minister characterised this legislation as improving collective bargaining. Nothing could be further from the truth unless of course the people for whom it is improving bargaining happen to be some of the Prime Minister’s mates and the employers or perhaps improving some of the Government’s interests in this because it is going to be those people who have been paid wages from the Government who are going to be under the most attack most immediately. But of course after they have been attacked and after their wages and conditions have been suppressed the Government is going to move on to many other groups of workers as well. Anyone in fact who has a collective employment agreement in place will be feeling the effects of this.So there is that group of people but then there is also the group of people who are not covered by a collective agreement at all—the people who probably do not belong to a union. They have much to fear from employment relations under this legislation because those people are the ones who will start missing out on their tea breaks their lunch breaks and their rest periods and therefore will have a much less safe workplace because of it.The commencement date in clause 2 is interesting because what it says is that the Act comes into force 4 months after the date on which it receives the Royal assent. For those people who follow parliamentary debates they will know that that is quite unusual. Normally an Act will come into force the day after it receives the Royal assent or shortly thereafter and I would be interested to know from the Minister in the chair Michael Woodhouse why the period of 4 months has been named in this clause. As we have just finished discussing in the debate on Part 2 of the bill actually the really dangerous insidious parts of this bill start before now—before we have even been debating it. That is if people are engaged in collective bargaining already—it does not matter when they have initiated it—that very dangerous ability to not even have to come near concluding a collective bargaining agreement will start already. It has started now. The clock is already ticking on that very dangerous provision.In that context I am very much perplexed about why the commencement date is specifically 4 months after the date on which this legislation will receive the Royal assent because as I say the most damaging part of this Act will already be in place and in fact is already in place before we have even concluded the debate. Four months after the date of the Royal assent—I have no idea when the Royal assent is going to be but let us think about some of the collective agreements that are going to be affected by that. As I said before we have got a number of them happening in the health sector. I note in particular that the primary health care one is coming up shortly. The primary health multi-employer collective agreement expired on 31 August 2014. This collective agreement covers about 3000 health workers. They are people who—Tim Macindoe: I raise a point of order Mr Chairperson. The member is straying far away from the title and commencement clauses and I ask that she either be brought back to the very narrow focus of these clauses or that we shut it down.The CHAIRPERSON (Hon Trevor Mallard): I think that is a fair point of order. The member will come back.SUE MORONEY: Speaking to the point of order—The CHAIRPERSON (Hon Trevor Mallard): No it has been ruled on.SUE MORONEY: OK it has been ruled on. Just so people can understand what the point is the point is that this bargaining is actually already under way. This is about the commencement of this bill. The commencement title says it is going to come into force 4 months after the date. What I am pointing out here is that there is a whole lot of bargaining that is all under way that covers large numbers of workers. There are 3000 under just this one multi-employer collective agreement. That bargaining commenced in September. The collective agreement expired on 31 August 2014. The commencement clause clause 2 says that “This Act comes into force 4 months after the date on which it receives the Royal assent.” but it is too bad really for those 3000 workers. These are practice nurses actually and receptionists in doctors’ practices. It is too bad for them. The commencement date means nothing to them because Part 2 which we have already debated means that they are going to be captured by it anyway irrespective of the fact that there has been a 4-month lag time after the date of the Royal assent.I would be very interested under that set of circumstances to know from the Minister why it is that there is a 4-month period. That is quite a specific amount of time that has been set aside. Are there transitional provisions that the Minister had in mind that the parties—the parties being employers employees and sometimes unions—would need to undertake in that 4 months before this Act kicks in? What was the thinking about the 4-month period? I would be very interested to know that.The good thing though is that it does mean that there is going to be at least 4 months before anyone can have their right to a tea break or a lunch break taken away from them. So it will be at least 4 months when people if they want to uplift their legal right to be safe at work can do so. You have to go back to the days of Dickens to think about the idea that people might not get the right to have a tea break. The only thing that the 4-month period really saves now in this legislation is the right for all New Zealand workers—no matter what sort of workplace they work in—to actually have the right to a break.I know that it is too late for some workers. I know that that period will be far too late. I heard yesterday after my speech in the House about the death of a forestry worker. It was reported to me that when the wage and time records of that forestry worker were looked at they had gone days and days and days without a break. Is it any wonder working in a dangerous environment like that—Tim Macindoe: I raise a point of order Mr Chairperson. The member is again addressing neither the title nor the commencement date. She has ignored your previous ruling.Chris Hipkins: Speaking to the point of order I say there are two issues that I want to raise the first of which is that the sole judge of relevancy is the Chair and it is in fact out of order to interrupt someone speaking other than if you were the Chairperson of the Committee and the second of which is that I draw your attention to Speakers’ ruling 115/1: “When debating the preliminary clauses at the end members should have some latitude to summarise and make concluding remarks about the issues they have raised during the committee’s consideration of the bill.” That is a longstanding provision in the Speakers’ rulings and in fact dates back to 2003 when it was decided by the Standing Orders Committee which is a committee made up of all members of the House and has been reinforced by two further Speakers.The CHAIRPERSON (Hon Trevor Mallard): Thank you Mr Hipkins. That is a very fair contribution. I think both members have made good contributions. I think the key word is “summarise”. I think if we can do that we will be OK. We cannot repeat.SUE MORONEY: I think that the National members are now starting to squirm in their seats about the implications of this bill because the deaths of forestry workers and other workers in the primary sectors actually are utterly dependent on their ability to have safe procedures at work and that does include the ability to have by right—not by negotiation—decent breaks at work. That is what National is going to deny them. That is actually what National is going to deny them. If workers have pressure put on them to negotiate away their right to these breaks then that is exactly what will happen. We will end up with unsafe workplaces. It will not be as the National members were trying to say before because workers are stupid. It will not be for that reason at all. It will be because of the fact that 40 percent of our children who live in poverty are in families where there are wages being earned. When a worker is forced to choose between having a break at work or having a bit more in the pay packet being able to feed the kids being able to pay the rent and being able to pay the mortgage guess what? They have no choice often in that scenario.This idea about freedom of choice that underpins this piece of legislation is utterly utterly wrong. It was proven wrong in the 1990s by Bill Birch who used exactly the same arguments. He used exactly the same arguments—freedom of choice he said. It was freedom of choice to stop getting penal rates for working Saturdays Sundays and long hours. That is the freedom of choice that happened in the 1990s. Exactly that same freedom of choice is going to happen when it comes down to people’s meal breaks and when it comes down to their ability to have a rest period at work. That is exactly what is going to happen in some workplaces. I am going to qualify that statement by saying it is only in some workplaces but that is why we have these sorts of laws.CHRIS BISHOP (National):I move That the question be now put.DENISE ROCHE (Green):I am going to talk to the title of the bill. The title of the bill is I think a misnomer. The Act is going to be called the Employment Relations Amendment Act. That is what it is going to be called—the Employment Relations Amendment Act. Actually I do not think that describes the content of this bill at all. Like the previous speaker Sue Moroney I do not think it is terribly funny either. I am going to try to make some points based on the title of this bill.I guess we could call it the “Undermining Employment Relations Bill” because that is what it does. It basically sets up a situation where employers are much more advantaged over workers where the employment relationship can and will become even more stressful. This bill does not give any signal to employers that this is the type of environment where they should be investing in their workers where they should be providing good relationships where they should be providing good conditions or where they should be ensuring that workers can speak up at work and take an active part in the planning of their work and basically have some democracy on the worksite. This bill is not going to do that so let us call it the “Undermining Employment Relations Bill”.We could also call it the “Undermining Every Piece of Health and Safety Legislation There Ever is to be Bill” because this is what the bill will do. It will undermine the legislation that this House is looking at around health and safety. It will do that in two ways. It will do that through removing the right for a worker to have a tea break or a rest break. We have heard examples from other speakers of people who have worked continuously—hour after hour after hour day after day after day—in dangerous and isolated working conditions who needed a break. They absolutely needed a break. And because they do not get breaks because they are required to work all the hours of the day and night these are the people who are being harmed at work or who are not coming home from work at all.The second way that this bill undermines all our health and safety legislation and the reason why it should be called the “Undermining Health and Safety in Legislation Bill”—Progress reported.Report adopted.