Boyack RachelRACHEL BOYACK (Labour—Nelson): Thank you Mr Chair for the opportunity to take a call on the new clause 6 amendment proposed by my colleague Ginny Andersen. I just want to pick up on some of the comments raised previously around the ability to take a personal grievance and just speak to a little bit of experience around that but also what this new clause would achieve which I think would be a very good addition to the bill.Section 103 of the Employment Relations Act lists a series of claims that can be used to take a personal grievance one of which is sexual harassment. There are a variety of different claims there and the Act goes on to also provide the test for that. One of the questions I've got for the Minister is whether any analysis has been provided to her by officials in particular about the risks to employers with the reintroduction of 90-day trials through to employers with 20 or more employees. The reason I raise that is that when this law was introduced under the previous National Government what we found in employment law was there were a number of employers who used the law and subsequently did end up with a personal grievance being taken. In some cases it was found for a variety of reasons for example one would be that the person—I remember a good test case we had where somebody had actually technically started their employment before the employment agreement was signed and the 90-day trial agreed and so they were allowed to therefore take a personal grievance.So I would put a proposition there that this introduction of this law actually presents a risk to employers. This is why I'm specifically speaking to this clause which is that it would be explicit that you could take a personal grievance. One of the things that we used to find a little bit when I took cases off into mediation and then sometimes a lawyer would step in and assist to the Employment Relations Authority: one of the things that would occur would be you would have this test out between process and outcome and one of the things that would occur in those cases would be that an authority member or a judge at times would say Yes this person has been unjustifiably dismissed because the process was poor but actually there's a contribution from that employee and therefore I". There have even been judgments when the contribution from the employee was considered to be at 100 percent. So ultimately while they won the personal grievance case through a process they ultimately received no financial remedy or reinstatement because they had contributed 100 percent.One of the reasons why I raise that particular example coming back to this clause is that by actually being explicit about the right to take a personal grievance it doesn't actually mean that there is going to be a remedy for that employee. That's the point I want to make here: it still allows that process to be followed. It allows the employee that's been dismissed under a 90-day trial to be able to have the opportunity to test that using the legal remedies that are available to them. What it doesn't mean is that they will necessarily win that argument in either the authority or the court or a higher court.The reason I raise this again and I'm particularly interested in hearing from the Minister is whether any advice has been received as to whether the reintroduction of 90-day trials for larger employers presents a risk if they don't follow the process properly because there is case law sitting there on the books that actually allows people to still take a personal grievance. I would say we then have a situation where we have case law in the statute in contradiction with each other. That actually presents a risk in terms of analysis and there may be situations that present themselves in the coming months where people are employed under a 90-day trial dismissed under a 90-day trial then able to take a grievance and the courts say "Actually you can." and that has happened.I think the best option would be to put in place what is a very good amendment from Ginny Andersen because it would then actually be clear to employees and employers that under case law you can still take—and I think it's important we get this on the Hansard for the Minister actually: what is the intent? What is the advice received because this will come up in the courts—the intent. So if it's not in the Hansard from the Minister I would suggest that there's probably employment lawyers that would read this Hansard and say "Actually you know we haven't had that clarification from the Minister." So I'd be very interested to hear from the Minister on this particular clause."