Wilkinson Kate: Employment Relations (Flexible Working  Arrangements) Amendment Bill — Third Reading 
Wilkinson Kate: Employment Relations (Flexible Working  Arrangements) Amendment Bill — Third Reading 
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KATE WILKINSON (National) 
: 
 I rise to speak in relation to the third reading of the Employment Relations (Flexible Working Arrangements) Amendment Bill which as has been mentioned National is opposing. Most people including National members support the idea of flexible working arrangements. We appreciate the benefits of flexibility. It is good for business to give employees a choice if they can deliver the same outputs. There are advantages to both employees and employers of flexibility in the workplace. We support flexibility; we do not support legislating for it. 
This bill has been lauded as light-handed regulation. It has been admitted that one of its main purposes is actually to educate by legislating the benefits of flexibility. We have heard the former Minister quoting that 84 percent of respondents supported legislation for the right to request flexible working arrangements but if the form responses are excluded then the figure shows that 83 percent support one or more approaches to flexibility. That is totally different from saying that 84 percent support legislation for flexibility. We support flexibility; we do not support legislation for flexibility. That result has to be balanced too with the fact that legislating for flexibility also received the highest level of opposition. 
So what does it all mean? It means that the benefits and advantages of flexibility in the workplace are recognised applauded and certainly encouraged. Legislating for this flexibility is the issue not the flexibility itself. Effective communication and a supportive workplace culture have been identified as the most important factors in making flexible work arrangements effective. We need common sense and communication not legislation. Legislation indeed can have the perverse effect of discouraging flexibility because of its prescriptive nature. If employees have to make a formal request once a year only make it in writing and have it formally considered then the chances are that the process may become just too difficult. Whatever happened to good old-fashioned communication? Employers want happy employees. They want to recruit and retain good employees and to do so may indeed mean that more flexibility options have to be provided but we do not need to legislate for that. 
We have heard again and again comparisons with the UK legislation. If the United Kingdom has it then New Zealand should have it too—probably a bit like foot-and-mouth. In fact we know that the bill has been based on UK legislation but I would like to add the caution about comparisons between countries and different jurisdictions; are we comparing apples with apples? When we were at the Transport and Industrial Relations Committee the officials issued a caution about such comparisons. Their advice to us was that there are questions as to the extent of the impact of this UK flexibility legislation and there are methodological inconsistencies in the sponsored research as to the impact. The results are not necessarily supported by research from other organisations and there is no accurate pre-legislation baseline of information to measure from. Further often the surveys do not distinguish between those eligible to request and those ineligible to request. So I think it is dangerous simply to compare our situation with the United Kingdom situation and say that this is the law for us. 
We were further advised by the officials that the current set of labour market and economic and social conditions in New Zealand does not present a close enough match to any of the countries considered in this analysis for that country’s solutions to be the obvious choice. But for some reason we have considered that the UK solution is the solution for New Zealand and National is opposed to that. 
The caution given by the officials has gone unheeded and ignored. I repeat: we support flexibility; we just do not support legislating for it. Legislation in this regard is unnecessary. The right to request flexibility in terms of working hours and working arrangements already exists in the Employment Relations Act. We do not need to over-regulate it further. 
This legislation is another compliance cost and another set of processes and procedures to navigate through. It has been estimated that it could cost another 3 hours of management time and another 2 hours of employee time. The legislation has the potential for other employees who are not eligible even to ask under this legislation perhaps to resent the priority treatment available to others. We must remember that this ability to request is not available to all employees. The legislation has the potential for queuing for flexibility—will it be “first in first served”? Those who ask first for flexible working hours or flexible working arrangements may have their requests duly granted but others following may have them declined. And the legislation has the potential for grievance claims and the uncertainty that grievance claims can create both from an employee’s point of view and also from an employer’s point of view. 
We appreciate that there are some grounds in the legislation for an employer to be able to refuse a request for flexible working arrangements and there is a reasonable selection of grounds including the inability to reorganise work among existing staff the inability to recruit additional staff a detrimental impact on quality or performance an insufficiency of work during the periods the employee proposes to work planned structural changes the burden of additional costs or a detrimental effect on the ability to meet customer demand. 
In the original bill the employer could refuse a request only if it could not reasonably be accommodated. The Minister then took out that word “reasonably” which may sound insignificant but it is not. The word “reasonably” brings in the notion of objectivity; by removing the word “reasonably” it virtually means that unless it is impossible for the employer to accommodate the request the request must be granted. For example let us imagine that a request for flexibility was made by employee A who wanted to take Tuesday afternoons off work. The business must stay open on Tuesday afternoons so the only way for this to happen is if employee B offers to work those extra hours on a Tuesday afternoon. But employee B might say that he or she will work extra hours only if earning double triple or even quadruple pay. Is that reasonable? Well actually it does not matter whether it is reasonable because under the amendment of the Minister which was sneakily introduced the employer has no choice. Technically yes the employer is able to recruit additional staff because employee B has offered to stand in albeit on considerably extra pay. Whether that is affordable to the business is of no relevance or interest to the Minister because under the amendment such a request can be accommodated although it certainly cannot be reasonably accommodated. That is neither fair nor reasonable and if employment law is about being fair to both employer and employee then in that regard this bill fails that objectivity test. 
I also noted that one of the former Minister’s Supplementary Order Papers was indeed overruled by the current Minister. Minister Dyson attempted to introduce an amendment providing that an investigation or determination of the Employment Relations Authority cannot be challenged appealed against reviewed quashed or called into question in any court. At the time I raised a concern about another sneaky little amendment mentioning things like breaching the rule of law contrary to the notion of natural justice questioning the precedent that this would set for a lay authority that does not have to act judicially to unilaterally make a decision that simply cannot be challenged. Minister Mallard overruled that with a further Supplementary Order Paper leaving open the possibility of judicial review so as to comply with such fundamentals as the New Zealand Bill of Rights Act. I thank the officials for taking note of the sneaky attempt to deprive employees and employers of their rights to natural justice. 
National believes that flexible working hours and arrangements are a good idea in principle. We acknowledge the benefits of flexible working arrangements where possible and we acknowledge that good employers who wish to keep their good employees may do so by offering such flexible working arrangements. Flexible working practices however should not be enshrined in inflexible rigid unworkable legislated processes and procedures. We should be educating for flexibility and the benefits and advantages of flexibility; we should not be legislating for it. For that reason National is opposing this bill.