Mackey Moana: Employment Relations Amendment Bill (No 2) — Third Reading 
Mackey Moana: Employment Relations Amendment Bill (No 2) — Third Reading 
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MOANA MACKEY (Labour) 
: 
 Like my colleagues before me I too extend my thoughts and sympathies to the miners in the Pike River mine disaster and their families. I think they can be well informed that Parliament is very aware of what they are going through and our thoughts are with them as a collective. That is why I agree with my colleague Trevor Mallard; I think it was perhaps a tad inappropriate that the Employment Relations Amendment Bill (No 2) and the bill that is to follow it are being progressed today. Perhaps it would have been more sensitive and appropriate to progress these bills which have relevance for those miners but which are also very political and divisive at a later date. None the less here we are. 
Labour opposes this legislation. It is unfair it is unjustified it is not needed and it will not have the outcomes that the Government claims it will have. In fact we believe it will have exactly the opposite effect. First I point out that this legislation represents yet another broken promise from this National-led Government. When we went through the election campaign National MPs and candidates were at pains to point out that the 90-day fire-at-will period would apply to small businesses only: those with 20 staff or fewer. They said New Zealanders did not need to worry because those would be the only people who were affected and the measure would not be extended any further than that. I sat in candidate meetings where National members and candidates were at pains to point out that this provision would not apply to people employed in much bigger companies. Well here we are today about to pass legislation that represents another broken promise from this National Government because this bill extends the 90-day fire-at-will period to all businesses and all employees in New Zealand. 
Listening to the members opposite I note that they try to insinuate that trial periods did not exist before they came into Government. That is absolutely not true. Under the legislation that the previous Labour Government passed trial periods were allowed as we would expect. This legislation is not actually about trial periods at all which is what members opposite are trying to claim but about whether an employee has any rights at all during a trial period. That is where we part company with the Government on this particular issue because Labour believes that if people are to be fired and have their livelihood taken away from them then it is only fair that they are told why. I look forward to the final National member who is to speak on this bill telling us why those members think it is fair that someone can be fired and not be told why he or she is being fired. 
My other question to National members asks how we can get more productive workplaces if we have legislation that states employees can be fired because presumably they are doing something an employer does not like but the employer does not have to tell them why or give them any opportunity to correct that behaviour. Even if an employer does not want employees to correct their behaviour the employer does not have to tell them what they were doing wrong so that when they apply for their next job they will know why they were fired in the first place. How will workplaces be more productive how will workers be more productive and how will they be able to upskill and make the changes in their work practices that are needed in order to make their workplaces more productive when they do not have to be told why they are being fired? This is a fundamental point about fairness and the difference between members on this side of the House and members on that side of the House. We say it is not fair to pass legislation that states people can be fired for no reason—it is not fair. 
As I said this legislation is not about trial periods. It is actually about legalising discrimination because that is the only difference from the existing law. Most employees and employers have very good working relationships. They do not have to revert to employment law in order to carry out that relationship because it works just fine. We have protections in place for situations where the employment relationship disintegrates and is not working. This legislation states that where for example during the 90-day trial period—or fire-at-will period—the employee joins a union the employer finds out that the employee is a member of the union or of the Labour Party the employer finds out that the employee is gay and has a problem with that or the employee is a woman who gets pregnant within the first 90 days of her employment and the employer suddenly sees a whole raft of costs coming up and maternity leave— 
Michael Woodhouse 
: Great story but where are the examples? 
MOANA MACKEY 
: We have given examples I say to Mr Woodhouse. This is classic. Mr Woodhouse asks us to come up with examples. 
I will point something out because members on the other side of the House are out of touch with the reality for workers and with the imbalance of power that exists in the employment relationship. I tell those members that it would be like shooting a hole in one’s CV to come out publicly and say one was fired under a 90-day trial period and it was really unfair and awful. I ask what Mr Woodhouse thinks that would do to that employee’s future prospects. Many workers find it incredibly untenable that they have been fired unfairly during a 90-day trial period but they feel that to come out and do a big hoopla which National says they should have to do in order to have any rights might suggest to another employer that he or she should not to hire that person. The worker wants to get a job to replace the one he or she has been fired from unfairly and to move on. The fact that Mr Woodhouse would even say that and suggest that employees who have been fired should have to come out in the media to defend themselves shows how out of touch his Government is with the reality for workers in New Zealand at the moment. 
I commend those workers who have had the courage to come out knowing that there would be a backlash against them— 
Darien Fenton 
: Knowing they’ll be sneered at by that lot. 
MOANA MACKEY 
: —and knowing that that lot have sneered at and made little of their experiences. I commend those who have come out and told their stories despite the backlash that may occur against them in terms of finding another job. It is not an easy thing to do I tell Mr Woodhouse when one is trying to put food on the table in an ever-decreasing market for jobs and the Government is doing nothing to ensure that one is able to find another job or to make the situation any easier. 
As I was saying all that this bill does is to legalise discrimination. That is the only change to come out of it. Most employees and employers have a good working relationship and will not have to resort to the measures in this legislation but where the employment relationship does not work this bill puts all the onus on the employee and none on the employer. An employee who moves to a new job now carries all the risk whereas we believe that risk should be shared between the employee and the employer in a productive working relationship. 
I will touch on the issue of union access to the workplace. This is another area where we are seeing blind ideology prevail over practicality. There is absolutely no evidence to show that there is a mischief that needs to be remedied. We heard at the Transport and Industrial Relations Committee that the Government has been told that by officials. The Minister when questioned in the House could not come up with examples of issues arising from unions accessing their members in the workplace or more important union members accessing their union that would suggest we need to introduce such a Draconian measure as we are introducing in this legislation. 
As my colleagues who spoke before me have pointed out the Government is saying that when an employee has an issue with his or her employer and wants to get some advice on how to solve the issue—it might be that the employee is being asked to sign a different contract maybe on lower terms and conditions or maybe it is an issue of sexual harassment as my colleague Trevor Mallard has pointed out—the employee now has to get permission from the very person who is causing that problem in order for the union to come in and help the employee to remedy that problem. We have no evidence at all of any abuse by unions of their access to workplaces in New Zealand. Unions need to have good relationships with employers. This is not Soviet era - style politics. I think National still sees unions as the enemy whereas businesses in New Zealand have moved on by and large and see unions as a partner that can provide an awful lot of good in the workplace and can help to lift productivity. National still sees unions as the enemy as a group of individuals out there who criticise it so as with students associations it wants to try to get rid of unions by reducing their ability to properly advocate for their members. Again we ask why we are introducing a measure in this legislation to fix a problem that does not exist. It could result in workers in the most vulnerable situations not having access to the kind of assistance that they should be able to access. 
Finally I want to touch on the issue of removing reinstatement as a primary remedy for wrongful dismissal. This basically says to the small number of employers who might want to use this provision that they can go ahead and get rid of someone unfairly. Even if the tribunal or the Employment Court says a sacking was unfair and wrong an employee now no longer has to be reinstated in that position. That is a dangerous precedent to set.