Tuiono Teanau; Belich Camilla; van Velden BrookeClause 3 Principal Act CHAIRPERSON (Teanau Tuiono): Members we come now to clause 3 Principal Act". The question is that clause 3 stand part.CAMILLA BELICH (Labour): Thank you Mr Chair. I am pleased to make a contribution to clause 3 of the Employment Relations (Trial Periods) Amendment Bill which states that the principal Act—which the Employment Relations (Trial Periods) Amendment Act works under and in fact does amend—is the Employment Relations Act 2000; one of my most used and affectionately known pieces of legislation.The question that I would like the Minister to engage on—and obviously I realise that she may have received some advice on this from officials but I think it is important to note that this bill started off as a member's bill and members' bills are drafted differently to Government bills. So what I would like to know in relation to the decision to draft this bill in the way that it does amend the Employment Relations Act is the advice that she has received about the appropriateness of this. Did she look to other alternative methods of drafting this particular bill? Were there suggestions made by officials on how to improve the drafting of this Act? Because in my experience with members' bills often there is a number of changes that officials do suggest.There are not many consequential amendments that are suggested to this principal Act; so is there any comment she can make around the suitability of adopting a member's bill that was drawn in the last ballot prior to the election and then adopting that bill—first of all saying that there would be a select committee process on it and then subsequently stating that there wouldn't be a select committee process on it and then taking it through urgency? This is such an important piece of legislation that is being amended. It has existed since 2000 and it's already come up in debates on different bills in the House today about how the Employment Contracts Act existed and then it was repealed through the Employment Relations Act. Any amendments to this piece of legislation are very important and significant to the fabric of how employment law functions in New Zealand.There are a number of colleagues who have already made comments on the nature of this bill which is the subject of this clause and about how it introduces the concept of good faith into employment relationships. We know the concept of good faith is a principle that imbues all employment relationships and very interestingly it's very difficult to see how good faith applies to this particular amendment. Usually in good faith there is an opportunity for an exchange. Usually with good faith there is an opportunity for explanation. Usually in good faith there's an opportunity for representation. Usually with good faith there is an opportunity for that important relationship that is so fundamental to the Employment Relations Act to be thought through.I know the Minister may say "Well employment trial periods existed prior to this legislation and this simply extends it." But I think it's incumbent on her as a Minister to tell this committee—because we don't have the ability to go through a select committee process—why it is appropriate in 2023 or indeed in 2024 if that is when the bill comes into effect how good faith and how the case law around good faith has progressed during the intervening period between when we had trial periods first introduced and had them extensively throughout all employers and now having limited that for the last three or four years. How does good faith apply to trial periods? We know it does apply because we know that it is an important part of the Employment Relations Act which is amended by this clause.I have a copy of the Employment Relations Act in front of me and we can go to section 4 and just see how far the duty of good faith goes. If you look at section 4 "Parties to employment relationship to deal with each other in good faith". They "must deal with each other in good faith". And this is a principal part of the Employment Relations Act. If I just skip up to the object part as well "The object of this Act is … to build productive employment relationships through the promotion of good faith in all aspects of the employment environment and … employment relationship". I know this trial period was not invented by this Minister—I don't ask her to take responsibility for that—but what I do ask is when she says that this trial period extension bill allows trial periods to apply throughout the economy to every single employer how does the principal objective part of this Act and the purpose of the Employment Relations Act fit with trial provisions? And is she satisfied that it fits within that piece of legislation?The practical implication of passing this law is as I've said to change this Act and everything in this Act should be if legislative drafting is correct consistent with section 4 of the Act and also should be interpreted consistently with the object of this Act which is set out in section 3 of the Act. It is very different to imagine a good faith employment arrangement as envisaged in section 3 and section 4 in a trial period situation because in practice the duty of good faith is to engage. One of the key things around a trial period is that there is no requirement to engage—a dismissal can be for any reason that isn't a discriminatory reason. And Mr Chair if you will allow me I would like to foreshadow that there are a number of sections in Part 9 that are not amended by the bill in front of us but are relevant to the bill in front of us and I would like to make a contribution to that particular section at some point. I think it would be beneficial for those following this debate to actually understand the types of personal grievance which continue under a trial period regime and which don't continue under a trial period regime because even for someone who used to practise employment law like myself it is very difficult to ascertain exactly what could be covered for a particular dismissal or not.So when we look at this clause 3 of the bill I wonder if the Minister is able to go through—and I do realise this is my second call so I won't take all of this time. But can I just end this contribution by saying that to the employment law community in New Zealand who will be the ones who are responsible for interpreting what the Minister does today and providing that advice to their clients big and small vulnerable and not vulnerable rich and poor throughout New Zealand they need to know how the intersection of the primary provision of good faith in section 4 and the object of the Employment Relations Act is consistent with the bill that she is putting forward.I do have other contributions to make in relation to this bill in relation to the personal grievance section which is the other substantive section which is relevant to this bill but I just wondered if I could leave those questions with the Minister to have a response.Hon BROOKE VAN VELDEN (Minister for Workplace Relations and Safety): Thank you very much for the member's contribution. Look I wanted to talk briefly about the principal Act being amended as the member Camilla Belich raised. That's because this makes an amendment to the 90-day trial provisions that exist within the Employment Relations Act which are currently just for small and medium business and we are changing that to all employers. So it seems pretty straightforward why we need to amend that particular part of that Act.The overarching question was about whether or not the bill that we have before us is suitable as it was a member's bill. My officials have advised me that it does achieve my policy objective and that it is a well-drafted bill. They also advised that we didn't need any changes to the bill because we don't need any transitional provisions because this is very clear that it is applying only for new employment agreements from the date of Royal assent. I would also like to take the chance to commend by former colleague Dr James McDowall on the very good drafting of this member's bill which allowed us to use this at the time.Talking to the third part of her question—about good faith applying to 90-day trials—I'd like to assure the member that an employer dismissing an employee under a 90-day trial still has a requirement to act in good faith under section 4 of that Act. It still applies. The Employment Relations Authority and the courts have upheld good faith requirements for dismissals under 90-day trials since trial periods began in New Zealand in 2009 such as ensuring that the trial period is agreed to before starting work to provide an opportunity for the employee to seek advice and to raise any issues. So the bill does not change any of those requirements which is why it's not in it.CHAIRPERSON (Teanau Tuiono): Just for members' enlightenment in terms of the narrow focus of this clause this provision identifies the principal Act; it doesn't open up the Act for debate except to the extent that this bill amends it. However members the time has come for dinner and I need a cup of tea! We will suspend until 7 p.m.Sitting suspended from 5.58 p.m. to 7 p.m."