Little Andrew: Employment Relations Amendment Bill — First ReadingText is incorporated into the Bound VolumeLittle Andrew: Employment Relations Amendment Bill — First Reading[Sitting date: 05 June 2013. Volume:690;Page:10777. Text is incorporated into the Bound Volume.]ANDREW LITTLE (Labour): If there is one thing that this bill does it takes us to the 19th century; it does not take us to the 21st century. I want to give the member David Bennett who spoke just now one concession—it is true that National Party members in Government do have a connection with unions. Let me see now. They belong to someof the most powerful unions in the country. Mike Sabin is a former member of the Police Association a very powerful union. Michael Woodhouse—and I think even Mr Bennett himself—is a former member of the Institute of Chartered Accountants of New Zealand a very powerful union collectively organised. The Attorney-General Chris Finlayson and Kate Wilkinson are members of the Law Society another powerful union. Simon O’Connor is a member of the Catholic Church which is probably the most powerful of all of them. So they do understand about organising in their own interests but the difference between them and us is that we look after working people and their interests and those who have to stand up to those in authority to look after their own.This bill the Employment Relations Amendment Bill proceeds from the false premise that a level playing field needs to be created as the Minister of Labour said last night—or that a level playing field needs to be restored. The implication of course is that there is not presently a level playing field in employment. Well I have got news for the Minister and indeed for Mr Bennett who told us that we were boldly moving into the 21st century and that is that the employment relationship is not equal. It never has been; it never will be. It is inherently unequal and the Attorney-General will know this because he is a man of law and a man of letters. He will know what the origins of our employment law are. It starts with the common law; it does not start with statute. It starts with the common law and the common law of employment which goes back at least 150 years is still the law in this land and it is amended by statute.Let us go back to the common law because it still applies. It recognises that the employment agreement is a special agreement because it means one thing—that one party the worker submits to the authority and control of the other. There is no other contract that does that. No consumer contract and no commercial contract requires an individual to submit to the authority and control of the other and to limit their freedom as a result. It is an agreement to submit. It is an agreement to submit to the instruction and control of the employer but it is not an agreement of servility and decades and centuries of employment law tell us that the employment relationship is not a relationship of servility. But the reality is that the common law was never good enough to hold back the worst of exploitation and the worst excesses of employers.Let us remember too how the common law described the employment relationship. It did not use the modern 20th century and 21st century language of “employer” and “employee”. It used the very raw language of “master” and “servant”. It is the common law of master and servant and if you want a good depiction of how that operated you only have to look atUpstairs Downstairs and the more recent rendition of it—Iain Lees-Galloway:Downton Abbey.ANDREW LITTLE: —Downton Abbey. That is where it all stems from. So what did the common law inadequately do? It set up half a dozen duties—four duties on workers and two duties on the employer. The duties on the workers included the duty to obey. That is the inherent thing about the employment relationship. You are obliged to do as you are told. That is the relationship of submission in the employment relationship. As well it says that you have got a duty of personal service. You have to do it. You cannot contract it out to somebody else. You have to do it yourself.Mr DEPUTY SPEAKER: Order!ANDREW LITTLE: There is the duty of fidelity Mr Speaker—and of course it is not you Mr Speaker; I would not require you to submit to anything other than the authority of this great House the authority of the will of the people. We know what you are here for. The other duties are the duty of fidelity—you have to act in good faith to your employer—and the duty of confidentiality. You can understand how all of this came about through servants and the master-servant relationship.The duties on the employer were the duty to pay wages and that was periodically and as agreed and the duty of a safe system of work. But as I said before that was inadequate so statute law had to intervene to protect workers and what freedoms they were allowed to exercise—the freedom of association the freedom to organise and join together with their workmates the freedom of choice. Also there was the freedom to bargain collectively. These were so fundamental and so important that they have been recognised internationally in international agreements and are now celebrated each year at the annual conferences of the International Labour Organization or the ILO.The history of employment law is either the history of progress towards a more sensible and constructive and collaborative relationship between workers and their employers or a regression back to the master-servant relationship. The disappointing thing is that every law change this Government has made in employment law has taken us back towards the master-servant relationship. This is the Government of master and servant. That is the only employment relationship it knows—more servility more submission more control more master-servant. That is the National Government 2013. It knows nothing else. It is old-fashioned it is old hat it is 19th century and it takes us backwards.We know what National’s attitude towards unions is. It was represented by Cameron Slater. He said he was pathological about unions. He said he a pathological hatred of unions. Well he is right about one thing. He is a sociopath—we know that—but has a pathological hatred of unions and he is the biggest public relations machine for the National Party. He defines them.Darien Fenton: He’s Judith Collins’ supporter.ANDREW LITTLE: And his biggest hero of course is Judith Collins the Minister of so-called justice. Can you believe it? The challenge of modern management is to harness discretionary effort. Good managers good employers know this which is why they do not buy into the tardy old grubby old National Party of old like the present lot. They buy into modern management techniques which are about harnessing discretion and getting the best out of people through mutuality through mutual respect through working together through collaboration through respecting the choice of workers to belong to the unions they wish to belong to and through respecting the choice to bargain collectively. What does this lot do? They introduce a law that allows employers to trot off to the Employment Relations Authority to stop collective bargaining to deny the freedom of choice of workers.What is interesting is that we have had the principle of good faith in operation in this country for 13 years now and when the employer trots off to the Employment Relations Authority under this bill to stop collective bargaining and frustrate the freedom of choice of workers a number of conditions have to be met. But there is not one condition that relates to good faith the requirement of good faith and the Attorney-General will know because he is a sensible man that our employment jurisdiction is defined by equity and good conscience—equity and good conscience. [Interruption] Mr Finlayson QC will know that he or she—they who come to equity come with clean hands. We have to talk about it in the plural these days so we are talking about at least four hands. They who come to equity come with clean hands. But under National’s 2013 bill when you go to the court of equity and good conscience you do not have to have clean hands. That is what National represents.I am going to talk very briefly about the power of the employer to penalise workers who take what is called a partial strike by deducting their pay. In 2008 the Amalgamated Engineering Printing and Manufacturing Union led a piece of industrial action with Air New Zealand and with flight attendants employed by a subsidiary called Zeal 320 Ltd. Their strike action—and it was defined as strike action; they had to givenotice—was that they decided to breach the dress code for Air New Zealand. They turned up to their shifts they flew on the planes and they hosted passengers but they turned up in feather boas. They turned up in flash pink gear—and that was just the blokes. They turned up in fancy clothing. One or two even had tā mokos on them and they were allowed to fly. Not a single flight was disrupted as a result of those flight attendants and their partial strike. Not a single passenger was turned away. The company continued to make money but it was a partial strike. It was a difficult dispute. What it led to ultimately was a brilliant relationship a constructive relationship and a collaborative relationship.Under this bill those workers would be penalised for standing up for their rights a better deal and greater equality. That is how insidious this piece of legislation is. That is how far behind the eight ball and the times the National Government of 2013 is. This is a terrible bill. It is a dumb bill. It is a silly bill. The members opposite know it. They will shamefacedly go through the process tonight. They know it is wrong and we will oppose it with all the fibre in our bodies.