Fenton Darien: Employment Relations (Probationary  Employment) Amendment Bill — Second Reading 
Fenton Darien: Employment Relations (Probationary  Employment) Amendment Bill — Second Reading 
[Volume:635;Page:6733] 
DARIEN FENTON (Labour) 
: 
 First of all I want to acknowledge all the submitters. We had a very interesting select committee process and it was good to hear their views. In particular I want to acknowledge all the workers who rallied and marched against the bill to remind this Parliament that more than business interests are involved when it comes to issues of employment. 
I want to talk about some of the things that Dr Mapp said when he promoted the bill. He has promoted it as a silver bullet to deliver all kinds of wonderful things such as helping workers find jobs for the first time and providing greater growth and productivity in the New Zealand economy. 
He also said that we are one of only two countries in the OECD that does not have a probationary period. But when we examined this matter we found that many of those countries have far greater industrial regulation and workers’ protection than New Zealand. In fact our industrial relations system remains one of the most deregulated in the Western World and it is an extremely permissive environment. 
 Employers know—so do workers actually—that already a range of employment practices allow employers to take risks as some employer submitters said they wanted to be able to do when employing people. There are existing provisions for fixed-term agreements. There are existing provisions for probation periods—and I will come back to that. Workers can be hired as casuals and temporary workers. They can be hired through third-party agencies or as contractors. In fact FinSec the finance sector union told us that around 25 percent of workers in the banking industry are employed as temporary workers. The bill would actually leave New Zealand workers with fewer rights than workers in many other OECD countries. Another reason given for the bill is that having a grievance-free period would enhance the employment of those less likely to find jobs even though this bill would apply to all workers; it did not try to define just those whom some considered hopeless. 
The Australian Council of Trade Unions took the unprecedented step of making a submission based on its experience in Australia. It said that the full court of the Federal Court of Australia had examined the link between employment growth and access to unfair dismissal remedies. The Australian Government’s expert witness admitted that there is no empirical research to support the view that excluding classes of employees will result in higher employment. The court held that the suggestion of a relationship between unfair dismissal laws and employment inhibition is unproven and entirely a matter for speculation. In any case one does not deal with this issue or with problems like this by removing fundamental rights and giving all workers less protection. Two young workers Jessie and Oliver who came along to the select committee asked how we can expect young people to be committed to work when they are treated as though they are disposable. 
Another assumption is that the termination of employment within the first 3 months is unduly costly and time consuming and that probationary employees under the current law are entitled to an undue level of protection—which they are not. Current legislation requires that the agreement must be in writing and that dismissal cannot occur simply because of the trial period coming to an end. That is fair. In other words employers have to manage. If they have concerns they have to convey them to the worker provide an appropriate opportunity for the worker to comment and improve his or her performance and consider the worker’s explanation fairly. 
I am also unaware that there is any evidence of a multitude of workers taking personal grievance claims within the first 90 days of employment. Even the Employers and Manufacturers Association (Northern) admitted that personal grievance cases taken in the first few months of employment are rare. What struck me about many of the employers’ submissions was their lack of knowledge about current probationary requirements and their impatience with the requirement to be a fair and reasonable employer. In my former job I was the employer of 75 staff so I am well aware of the responsibilities that employers have under the law. Yes it can be inconvenient and time consuming but workers should not be deprived of their economic livelihood easily and frivolously and these are important decisions that impact on people’s lives. 
Current probationary requirements mean that an employer cannot simply leave a worker to his or her own devices in a job then assert after 90 days that the worker is not suited to the job and sack the worker. Caritas the social justice arm of the Catholic church put it well in its submission when it said that working relationships do not break down only because of a fault on the part of the employee. This bill assumes that the fault is always on the part of the employee. Business New Zealand suggested that probationary employment guidelines be introduced including the need for regular supervision and feedback during probationary periods and I believe that the recommendation of the majority of the select committee—that more be done to promote awareness and the effective utilisation of section 67 of the Employment Relations Act—is a constructive way forward. 
Some of the concerns from union submissions that particularly struck me were those representing workers in highly dangerous industries. The Rail and Maritime Transport Union said that workers must be confident that they can speak out about unsafe work practices especially in the rail industry with its inherently hazardous tasks. It is a fact that workers are far more likely to have accidents in the early days of a new job. 
Other submitters said that the bill would foster negative workplace cultures. Workers under the threat of instant dismissal would be more likely to be reluctant to provide feedback criticise unacceptable practices or otherwise involve themselves in the workplace. They would be placed under pressure to conform to the workplace culture and in so doing could ironically be identified by the employer as being not suitable or as not fitting into the culture by not showing initiative or energetic ideas. 
Cheryl Chester-Dixon who works with challenging behaviour in disability support services talked about the small workplaces she works in with inexperienced supervisors and a high turnover of staff and supervisors. In a high-stress industry Cheryl believes that instead of sorting things out employers in small workplaces like hers who are busy are just going to say that they have had enough and send workers down the road. 
The Dairy Workers Union talked about its co-partnership with Fonterra and the major productivity initiative called Manufacturing Excellence and about how any action by this Parliament or the employer to reduce employment rights is viewed by the unionised workforce of Fonterra as an attack on them. Any attack on employment rights undermines the framework by which workers constructively engage for productivity and economic development. They then become suspicious that all this Parliament cares about is economic growth for the few not economic growth to be shared by all. The union’s submission states: “We should be supporting the drive for excellence in our companies and exporters by ensuring that the employment relations framework contributes to employment security rather than detracting from it.” 
Some of my colleagues have already mentioned a genuine concern that came through the submissions. This was the activities of the so-called ambulance chasers—those advocates who conduct personal grievance cases on the basis of a “no win no fee” arrangement. Although there is anecdotal evidence only about this problem stories have tended to grow in mythology and in the employer community. But I do accept there are some genuine cases of frivolous claims being taken against employers to obtain a financial settlement. The select committee has recommended that there be further research into those arrangements the impact on personal grievance claims and any initiatives that might address the issue. 
Finally I acknowledge Dr Mapp’s tenacity in pursing his bill and his endeavours to find solutions albeit ones that no one on this side of the House can agree with. I also note his statement that this is the No. 1 issue on National’s agenda for changes to employment law. It is helpful to have that statement in order to remind all the workers who protested rallied and made submissions that if given the chance the National Party will relentlessly pursue the removal of basic workers’ rights.