Employment Relations Amendment Bill (No 2) — Instruction to Committee In Committee 
Employment Relations Amendment Bill (No 2) — Instruction to Committee In Committee 
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Employment Relations Amendment Bill (No 2) 
Instruction to Committee 
Hon TREVOR MALLARD (Labour—Hutt South) 
: 
 I move  
That it be an instruction to the Committee of the whole House on the Employment Relations Amendment Bill (No 2) that it have the power to consider and if it thinks fit adopt an amendment not proposed in the correct place. 
Hon GERRY BROWNLEE (Leader of the House) 
: 
 I raise a point of order Mr Speaker. I think there will need to be a ruling made here that does not see any gap in procedural matters in our Standing Orders in fact unduly impede the progress of the bill. The Committee has clearly made a determination by way of a majority on how it should proceed. If this motion is debated now and it is a long debate at that point a decision will be made by the Committee that it has already made. The absurdity here is that the Standing Orders and the procedures of the House make it clear that new parts that bring in matters that have previously been dealt with cannot stand but we can then have a debate about whether the House can instruct itself to either accept or not accept those parts. That seems to me to be a complete mockery of the way in which the procedure of the House should progress. 
Hon TREVOR MALLARD (Labour—Hutt South) 
: 
 I can accept that the Leader of the House has identified a problem but the ability of the House to instruct the Committee is one that has been used on a number of occasions. It is a way of bringing things into scope that would otherwise be out of scope. The Speaker has ruled without undue protest from this side of the House that these amendments are out of scope for the Committee. The remedy that members have is a motion. The Leader of the House and the other National members have the ability to vote against the motion if they so wish and it is their right to do so but it is also the right of members to move such motions. It has happened at least two or three times in this Parliament while the House was considering a matter and before it was referred to the Committee. 
Hon GERRY BROWNLEE (Leader of the House) 
: 
 Another opportunity for members is to seek leave of the Committee to see those parts brought into the Employment Relations Amendment Bill (No 2). I think we are seeing a situation where the Committee has said no it does not accept those amendments as being within its scope and it is not going to have them progress because it has dealt with those matters before but now the House is being asked to debate whether it should give the Committee a further opportunity to do exactly the same thing. If the Standing Orders allow this sort of thing to happen then we have a perpetual loop if you like that could go on and on. I would assert that once this instruction has been given to the Committee there will be another one and another one. That does not make for good order in the House at all. 
Hon DAVID PARKER (Labour) 
: 
 I have a very narrow point in respect of the Leader of the House’s contribution in which he said the Committee had already resolved that this matter was beyond the scope of the Employment Relations Amendment Bill (No 2). I say no that was not what happened; it was that the Speaker had determined that the Committee could not consider it which is a different matter from whether this motion should succeed. 
Mr SPEAKER 
: This is a serious issue; I fully accept that. Members are right to share their thoughts on it with the Speaker. I do not believe the Speaker has to automatically accept this motion because the Speaker must not allow the House to go down a path that is not consistent with the Standing Orders. The particular issue as I understand it is that the member is trying here to enable the House to instruct itself that the Committee go back and reconsider something that the Committee has already decided on. The Committee has dealt with Part 1 of the Employment Relations Amendment Bill (No 2). I was recalled to the Chamber and I have already ruled as Speaker that the member’s amendments were properly dealt with as part of Part 1 and therefore could not be dealt with by way of separate parts. That is the issue. The Committee of the whole House has already moved past the time when those amendments could be made at the Committee stage. 
It would seem to me that if there is an issue here the more appropriate way would be to look at it by recommittal at the third reading for example; then the House could consider the matter in a more consistent way as part of the third reading. It does not seem to me to be appropriate given that the Committee of the whole House has passed this point of the bill to allow a debate on that matter because I would be allowing something that the Speaker has already ruled against. That does not seem to me to be appropriate. It is my ruling that the motion is out of order. 
Hon TREVOR MALLARD (Labour—Hutt South) 
: 
 I raise a point of order Mr Speaker. Clearly it is in the nicest possible way challenging the ruling you have made. It is my understanding that in these matters the House is the master of its own destiny and that the House can and often does—just about always on the motion of a Minister—make decisions for the Committee to consider a matter that it could not otherwise consider. You have ruled—and I am not saying improperly—that the Chairperson was right when he ruled this out. I just put in brackets that there is a matter of timing that you have not dealt with in your ruling as to whether once a debate has started there can be a retrospective ruling out. I put that to one side. 
The point is that the House has always been the master of its own procedures. Ministers have always had the ability to move that matters that are well outside the purview of a Committee be considered. It happens on regular occasions and I think we will see it happening later in the day from a Minister. The fact that it is not currently within the scope of the bill as a result of reason a rather than reason b is not I think a valid reason for you to rule out a motion. In my opinion it is the role of the House. 
The Leader of the House has brought up the question of a perpetual loop. That cannot be right because once a matter has been dealt with by the House it cannot be dealt with again. 
Mr SPEAKER 
: I think we have got ourselves into a little difficulty here. The member should recollect that the Speaker was recalled to rule on this matter. My ruling did not relate to scope; it related to the fact that the Committee had dealt with Part 1 and the issues and amendments related to Part 1. The Committee had the power to consider the matter at the appropriate time. The advice I have received is that an instruction must be moved immediately after the order of the day is called. That is not exactly the right time but I do not want to be too pedantic. 
The Committee had already voted on Part 1. The member quite properly raised his concern about the Chairperson ruling his amendments out. The Speaker was recalled and dealt as Speaker not on the issue of scope but on the issue that the Committee had dealt with Part 1. I believe that that has dealt with that matter. 
In respect of the point which the member quite rightly raises that I did not deal with the fact that he had already made a contribution it is my view that the member is not harmed by that because at least the member has on the record the points he wanted to make. Even though as Speaker I supported the Chairperson when he ruled out the member’s amendments the member has not been totally disadvantaged because he managed to get his points across in that he got a speech in before the Chairperson ruled the matter out so I do not see that as being much of a disadvantage. Had the Chairperson ruled it out immediately the member would not have been able to make his points. So I do not see that as disadvantaging the member hugely. It is my view that this motion is not appropriate right now and I cannot accept the motion. 
In Committee 
Debate resumed. 
Schedule 1 
A party vote was called for on the question  
That schedule 1 be agreed to. 
Ayes 64 
New Zealand National 58; ACT New Zealand 5; United Future 1. 
Noes 57 
New Zealand Labour 41; Green Party 9; Maori Party 5; Progressive 1; Independent: Carter. 
Schedule 1 agreed to. 
Schedule 2 
Hon STEVE CHADWICK (Junior Whip—Labour) 
: 
 I raise a point of order Mr Chairperson. We had a member on her feet trying to take a call before the vote was put. 
The CHAIRPERSON (Hon Rick Barker) 
: I understand that the debate on Part 2 included clauses 39 and 40 and schedules 1 and 2. They are not separate debates. Therefore we will now have the vote on each provision. 
Hon TREVOR MALLARD (Labour—Hutt South) 
: 
 I raise a point of order Mr Chairperson. I think we have a bugger’s muddle here. We went on to a debate on Part 3. How could we possibly be in this situation? I think we might have to be in a recommittal phase fairly soon if we have not worked our way through this one properly. How could we possibly have started a debate on Part 3 without finishing? We cannot then go back. I accept we had closures. It might have been that you have missed the vote but if the votes have been missed and we are going to go back and reopen issues including schedule 2—and I accept that there has been some debate on schedule 2—and if votes were not taken in error then I think we are in a position where we have to recommit that question. 
The CHAIRPERSON (Hon Rick Barker) 
: I thank the member. I will just take some advice from the Clerk. I say to the member that my advice is that the Part 3 debate the member refers to was ruled out of order. There is no Part 3 in the bill. My advice from the Clerk is that we started having votes on Part 2. The vote on the substance of Part 2 has ended and we are now having the votes on the schedules attached to Part 2. Once that is completed we will then go on to the next part and the next question before the Committee will be clauses 1 to 3. 
Hon TREVOR MALLARD (Labour—Hutt South) 
: 
 I raise a point of order Mr Chairperson. I think the problem that we have is that there has been a clear error here because a debate was accepted on new Part 3. That has been well-established here and in the House. It was wrongly accepted I think both sides now accept. But what happened was that some votes were not taken. New Part 3 was called by the Chair and you are absolutely right as to the sequence. But the question is whether a closure can apply over a period when another debate has been called. I do not want to be too critical of the Chair at the time and it was now quite a few hours ago but it is my very firm view that a closure does not apply if there has been an interruption and we have moved to a subsequent debate. 
Therefore although it is a relatively narrow debate and I discovered it was narrow because I started debating it myself earlier on quite incorrectly as Mr Woodhouse pointed out we have to find a way of sorting this out. But the closure cannot just apply 6 hours after it actually occurred. If the closure was to occur properly then the Speaker would have put us back into Committee notwithstanding the fact that we had reached 1 o’clock and we would have had the vote. If the closure applied then we just keep on having the votes and have our lunchtime at the end of those votes. 
The CHAIRPERSON (Hon Rick Barker) 
: I have heard enough. I have had several pieces of advice. The member’s referring to Part 3 is irrelevant. Part 3 is ruled out of order. It is as though it never existed. It has gone. It is not a matter before this Committee. The second point is that my advice from the Clerk is that there was no closure motion. The closure motion does not apply. The issue the member is raising about a closure is a complete red herring. It is irrelevant. It is here to confuse and cause distraction. There is no closure; we are not dealing with that. 
Let us come back to the fact. The fact is that a vote was started. It was incomplete at the time the Committee rose for luncheon. There is no problem with that. Votes were before the Committee before it rose for lunch and now the Committee has resumed and we are completing the votes. We are completing the votes on the schedules. There is no debate on the schedules. They are included in the original motion. The confusion of members is entirely of their own making. Without further ado I am now going to put the vote on schedule 2 and once that is completed I will then call for clauses 1 to 3. 
A party vote was called for on the question  
That schedule 2 be agreed to. 
Ayes 64 
New Zealand National 58; ACT New Zealand 5; United Future 1. 
Noes 56 
New Zealand Labour 41; Green Party 9; Maori Party 5; Progressive 1. 
Schedule 2 agreed to. 
Clauses 1 to 3 
Hon TREVOR MALLARD (Labour—Hutt South) 
: 
 Thank you for the call on this particular matter and I must say that it is good to see the Minister in charge of the Employment Relations Amendment Bill (No 2) Kate Wilkinson in the Chamber. It is good to see her here preparing to defend for the first time in the Committee stage what is an outrageous piece of legislation that is being pushed through under urgency and that had a shortened select committee process which was very very badly run. 
There are two elements to this bill and together they make April Fool’s Day the implementation date for all but section 10 an appropriate date for the bill to be enacted. Legislation is coming into force on April Fool’s Day from a Government that has worked really hard to fool the public of New Zealand. This is the nasty vindictive part of National coming out. It is the part that hates wage and salary earners and hates people who earn low incomes and that is determined to drive their conditions down to stop their representatives from meeting them and to ensure they have no job security. This is the sort of legislation that National Party people go to their branch meetings for. This is the sort of horrible stuff that the people who really like ACT—the far right of National—are promoting. I say that it is the ugly side of National— 
Carmel Sepuloni 
: It’s the only side. 
Hon TREVOR MALLARD 
: No I disagree with my colleague. She said it is the only side. I think that over the years there have been some more reasonable more centrist approaches to legislation. I know that Jim Bolger as Minister of Labour would never bring legislation into force on April Fool’s Day. We used to disagree with him quite a lot but I do not think he was seen as the devil incarnate in the way that this Minister is in the way that she acts. 
Clause 1 states that the title of the Act is the Employment Relations Amendment Act (No 2) and I wonder whether that is an appropriate title or whether there could be some other titles. It could be the “Stop the Sexually Harassed Worker Getting Her Representative into the Workplace Act” or the “Fire the Low-income Worker (Without Giving Reasons) Act”. Would they be more appropriate titles for the bill? This legislation is designed to drive down the working conditions of ordinary Kiwis. I am certain there is a better and more appropriate title for this legislation than the one that currently exists. 
Clause 2 provides a commencement date of 1 July 2011 for part of this bill and the rest will come into force on 1 April 2011. Clause 3 states the bill amends the Employment Relations Act 2000. The one bit I cannot disagree with is clause 3. I do not disagree with the fact that the bill does amend the Employment Relations Act. I will not vote for it because I do not think the bill should be amended in this way but it is factually accurate and probably appropriate given the content of the bill. Although the content is inappropriate it does go to the Employment Relations Act 2000. 
Mr Chair I am sure that over a period of time we will have a number of amendments come to you on this particular issue and some of them will go I hope to the title. I am sure some of my colleagues have views on alternative commencement dates and they might currently be having amendments drafted in order to defer the implementation so that whether or not union officials should have access to workplaces when people are being sexually harassed is deferred until after the next general election in order to have an approach that is fair. 
DARIEN FENTON (Labour) 
: 
 I am delighted to see the Minister in the chair the Minister of Labour this afternoon and I am delighted—a little bit—to take a call on clauses 1 to 3 of the Employment Relations Amendment Bill (No 2). As my colleague Trevor Mallard has outlined there are only three little parts to this bill. I will concentrate on clause 3 “Principal Act amended”. I have to agree with Mr Mallard that that clause tells the truth. It is very sinister though. It has half a dozen words: “This Act amends the Employment Relations Act 2000.” They are words that I hoped as a member of Parliament I would never ever hear from a National Government because they are filled with foreboding—they amend the Employment Relations Act 2000. This amendment bill is beyond our worst nightmares. I want to take the opportunity to talk about what amending the principal Act will mean for people who are already operating under the Minister’s previous amendment to the Employment Relations Act 2000—that is those who are in workplaces with fewer than 20 staff. I want to talk about what it will mean for every worker in the country who will be affected by this bill. 
In talking about amending the Act I will put on record some stories that have come through and there are many. I will not talk about the sauce and aioli story; I will talk about the stationery store worker who was fired on the 85th day of her 90-day trial period. She only worked Saturdays. She was never told there was any dissatisfaction. 
There was the case of an experienced hairdresser who had never been dismissed before over many years of working for several employers. 
There was the case of a recent university graduate employed by an accounting firm. Near the end of his 90-day trial period the employer said that he had done well and would be offered a new agreement. But when he received a new agreement he saw that it was unlawful. It contained the 90-day trial period provision which he pointed out was unlawful and the boss told him not to come in on Monday. 
There was the case of the farm worker who during his first week on the farm picked up an infection related to his job. He was in hospital for a week then returned to the farm and was sacked under the 90-day trial period provision. Amending the principal Act will produce that consequence for thousands and thousands of workers—400000 workers who change their jobs every year will risk this sort of treatment. 
Another young woman told me that she started work in a heating firm and despite bringing in sales she was sacked after just 8 days with no reason given. She wrote to the company to ask for a reason but she has never received a reply because under this Act the company does not have to give an answer. 
One woman moved from the North Island to the South Island to be close to her elderly parents and took up a job with a local firm. She had positive feedback on her performance and even suggested some training on her own behalf in order to further improve. She was dismissed with no reason given. With an unsold home in the North Island she is now living in a caravan. Those cases are the consequences of clause 3 and the amendments in Part 1. 
One woman who had a hearing impairment was employed by a call centre. The employer knew about her impairment when he took the woman on. She required some special equipment but instead of providing it the employer changed his mind and simply fired her under the 90-day trial period provisions. He told her not to come in on Monday. 
A worker in a communications company turned up for work to find the office being renovated. Unable to find alternative facilities the company simply fired that worker. The company said that it did not have to give any reason and that it could fire her under the 90-day trial period provisions. 
Members will be familiar with the Act but we are now talking about what this amendment bill will mean. It will have consequences for thousands and thousands of workers. 
Another example was of an early childhood teacher with 11 years of teaching and nannying experience who took a job at an early childhood education centre over another offer. Six weeks into her new job she was told there was a complaint against her and she was fired the next day. No previous concerns had been raised about her performance and she was given no chance to read the complaint or respond to it. She was an early childhood education teacher. I thought we were short of them. Mind you there will be surplus will there not? There will be no positions. 
Carmel Sepuloni 
: There will be no positions for them. 
DARIEN FENTON 
: That is right because the Government is cutting back on early childhood education. Despite all of the investment we have put into that person and her training to make sure that she is able to provide a proper education to our children she has gone. She will find it really hard to get another job and she is devastated by that. The consequences of this amendment are severe. 
KEITH LOCKE (Green) 
: 
 It is a pleasure to speak on the title and commencement date clauses of the Employment Relations Amendment Bill (No 2). I think the commencement date should be changed. Instead of being 1 April 2011 it should probably be 1 April 1911. I do not know whether we can have retrospective dates like that but it is appropriate to that period in our history when our employment legislation was very weak and employees were at a serious disadvantage. This bill would fit in that period more. 
In terms of the title rather than the Employment Relations Amendment Bill (No 2) it might be better to call it the “Employees’ Submission Amendment Bill” because that is what the bill is about the submission of employees in the workplace particularly to their employers. I think clause 3 “Principal Act amended” rather than amending the Employment Relations Act 2000 might be better to amend the Corrections Act. This bill is in some ways imprisoning workers or at least taking away the freedoms of workers in the workplace. It is relevant to the Corrections Act because under that Act I think there is now an allowance for home detention. This bill does not have home detention; it is sort of work detention. So that clause relates perhaps more to the Corrections Act than the Employment Relations Act which as has been pointed out was passed in 2000 to improve relations between employers and employees to create a fairer relationship and to allow for fair bargaining between the two parties. 
The Green Party was supportive both of Trevor Mallard’s amendments to Part 1 and of the prospective Parts 3 and 4. I think that if the Government was serious it would have accepted amendments that allowed for the union to be given access to workplaces as normal without all this hold-up where urgent matters are concerned. Certainly health and safety and sexual harassment are urgent matters and if someone is dismissed the union cannot wait for a few days before it comes in to defend them work out whether they should be in the job negotiate redundancy payments and all the rest of the issues. These are matters that require the urgent attention of union officials and I think it is a pity that those amendments to Part 1 were not passed. 
In the prospective amendments there is the secret ballot issue too. There is a funny contradiction in the legislation before the House at the present time. On the one hand there is this requirement in Tau Henare’s bill which the Green Party opposed to provide a secret ballot before any action is taken by unions but on the other hand in this different bill—the Employment Relations Amendment Bill (No 2)—the unions cannot even get access to hold their secret ballot or the employer can stop them and put barriers in their way. The two measures are in contradiction. 
The other amendment that was put forward by Trevor Mallard met with the approval of the Green Party too which was that the primary remedy of reinstatement should particularly apply to those who are involved in union bargaining and health and safety issues etc. Otherwise an employer could kick an on-the-job union representative down the road and that has happened many times in New Zealand’s employment history. I think there was opposition to that interpretation by the National Government. If the National Government does not think there will be a picking off of union officials etc. by disallowing reinstatement as the primary remedy then it should have supported that amendment. The other points raised in the debate have been very relevant too particularly the one relating to access to welfare benefits if someone is dismissed under the 90-day provision. 
STUART NASH (Labour) 
: 
 Let us be very very clear. We are debating the differing philosophies of the National Party and the Labour Party. That is fundamentally what this debate is all about. Perhaps the Employment Relations Amendment Bill (No 2) should be called the “Tory View on Employment Relations Bill”. When I talk about the different philosophies I mean that the party opposite is for the few; this party represents the many. That party stands up for the enfranchised; this party stands for those who are disenfranchised and often have no voice. 
I want to say three words: equality respect and dignity. To talk about the word “equality” I say that I was at a conference yesterday that discussed equality in New Zealand and how important it was. Learned professors took this bill and said that it stripped away equality and that the gap of inequality grew. It is the greatest impediment to economic and social growth in this country. It is the right of every person to representation and that is what unions do. Unions stand up for those who cannot stand up for themselves. They are a voice when silence reigns. They provide a voice for those who have not a voice for themselves. Perhaps this bill should be called the “Stripping Away Equality in Employment Relations Bill”. 
The second word is “respect”. At the conference yesterday learned professors said that the one major variable to inequality is a lack of respect. After nearly every single crime that is committed certainly violent crime the perpetrator stands up and says: “He dissed me. There was no respect. I felt disenfranchised.” This bill does not allow workers to be treated with respect. So perhaps this bill should be called the “Stripping Away Respect in Employment Relations Bill”. That is what this bill does. 
The third word is “dignity”. People in this country must be treated with dignity. The fact that they can be let go without being given any reason at all having their dignity stripped away and not being told why is an absolute travesty. Perhaps this bill should be called the “Stripping Away Dignity in Employment Relations Bill”. 
This bill is a travesty because it creates inequality for all workers by not allowing them the right to representation when they are unable to represent themselves. Taking away the rights of workers’ representatives to go on site is a great travesty to many workers in this country. The Hon Trevor Mallard asked what sort of country we want to live in. What sort of country do we want to bring our children up in? This bill does not allow for a country built on equality which is something we very much pride ourselves on. This bill strips away the respect of workers and it strips away the dignity of workers. 
When I heard Keith Locke say that the commencement date should be taken back 100 years I thought to myself as a student of history that that was a very good point. This bill does not drive innovation and it does not drive the workforce. It is a backward-looking step. It takes employment relations back to the time when there were no rights. This bill strips away the rights of workers. Perhaps we should call it the “Stripping Away the Rights of Employees in Employment Relations Bill” or perhaps the “Stripping Away the Rights of New Zealanders (When Seeking a Job) Bill”. That is what this bill does. 
CAROL BEAUMONT (Labour) 
: 
 I have a slightly different view from my colleagues Trevor Mallard and Darien Fenton which may be because I am a newer MP and just do not understand the issue. Clause 3 “Principal Act amended” of course amends the Employment Relations Act so I guess it is right. To me the changes in the bill are so fundamental in several respects that I think it undermines the Employment Relations Act. I do not think the bill amends the Act; “amend” sounds quite normal and quite moderate. The bill fundamentally undermines a number of the key objectives of the Employment Relations Act. That Act was designed to build productive employment relationships. The fundamental objective of the Employment Relations Act is to build productive employment relationships through the promotion of good faith in all aspects of the employment environment and the employment relationship. 
There are a number of elements in this amendment bill that fundamentally alter the balance of power in the employment relationship. As my colleague Stuart Nash said the bill does not deal with things like dignity and respect. When employers can dismiss employees for any reason they can come up with and employees have no right even to know why they were dismissed let alone challenge the dismissal if it is not fair—no right of redress—then I do not think that is about a relationship. That provision fundamentally alters the Employment Relations Act. 
The objects of the Act talk about good-faith behaviour as I have said but also explicitly acknowledge and address the inherent inequality of power in employment relationships. I think that point has been completely ignored by the Employment Relations Amendment Bill (No 2). Members opposite seem to think there is no inequality in the employment relationship. Many of the people who will immediately be hit by the 90-day trial period extension to all workplaces will be young people entering a job for the first time assuming of course they can get one which in the current environment is very difficult. But let us say they do get a job; they are then immediately placed in the situation of having no rights at work. 
No one can tell me that in a situation of high unemployment those employees who do not know their rights and are not union members will be able to get advice on whether they should accept this 90-day trial which has no rights. In fact it would seem that the intention of members opposite is that the normal course of events will be “take it or leave it” employment agreements whereby it will be perfectly legitimate to advertise a job as having a 90-day rights-free period and present the person with the option of either accepting the employment agreement which has no rights for the first 90 days of employment or not accepting it which means not having a job. That is not a free choice and it is not an equal power relationship. 
As I say I am a little concerned about the amendment to the principal Act. It worries me because I think it is more than a minor amendment to the Employment Relations Act; I think it is a fundamental undermining of it. I could understand it more if it were the Employment Contracts Act being amended. Then we might say that OK the principal Act the Employment Contracts Act—if it had not been repealed and that repeal was a very good thing I might add—is being amended by things like the change to the access provisions which would be not as bad as what was in the Employment Contracts Act. We could say that that was an amendment. But I tell members that the 90-day issue is way worse than what existed under the Employment Contracts Act under the previous National Government. Under that Act workers had rights to challenge unfair dismissals within the first 90 days of employment but under this amending legislation they will not. 
It worries me as Mr Nash said at the end of his contribution that we are not building the productive employment relationships that are envisaged by and are the fundamental objective of the Employment Relations Act. Productive employment relationships are what we need. We need those productive employment relationships to change the nature of work to lift workplace productivity and to achieve the economic growth that this country needs. That outcome will rest on a well-informed workforce a workforce treated with respect and a workforce that has a collective voice. 
MOANA MACKEY (Labour) 
: 
 I have some suggestions for alternative titles for this awful legislation that we are debating here in urgency today. The first alternative title we could call it is the “Employment Relations (Broken Promise) Amendment Bill” because members may remember that back in the election campaign in order to make the 90-day trial period for small businesses appear not so Draconian much was made of the fact that it would apply only to businesses with fewer than 20 employees. Much was made of that. National MPs went to extraordinary lengths to make it clear that this would not apply across the entire workforce only to small businesses. So here we have another broken— 
Hon Tau Henare 
: It’s the wrong bill. It’s a new year. 
MOANA MACKEY 
: There is Tau Henare. Mr Henare knows I like to say that he is the worst union organiser in the history of the universe. I actually think Mr Henare is a Trojan Horse designed to try to bring down the union movement from within. That is the only way that I can work out how he managed to get that job. But coming back to this bill it is a broken promise because the Government promised that it would not extend the 90-day trial period to businesses with more than 20 employees. Remember that Government members were at pains to say that it would not apply to teachers. It would not apply to teachers even if they were in a small school because they were employed by the ministry. Now it applies to everyone. It is another broken promise in what is proving to be a long list of broken promises from this National-led Government. 
Another alternative title could be the “Employment Relations (Legalised Discrimination) Amendment Bill” because that is essentially what this bill does. We already had trial periods under New Zealand employment law. It was nothing new to have a trial period. Labour is not opposed to trial periods at all. The only change National made when it came into Government was to the ability of an employee to challenge a dismissal if it was unfair. I want to know why National members think that it is unreasonable for employees to be told why they are being fired. Why is it unreasonable for employees to be told why they are being fired or why they are having their livelihood taken away from them? How can they improve themselves and how can we increase productivity through employees being able to improve their work if they are not told what is wrong with their performance? There is no requirement to tell them. They can just be told “Don’t come Monday.” and no reason given. 
This is where we come to the legalised discrimination. If for example a woman is employed and within the first 90 days she becomes pregnant and the boss does not want to have to deal with a woman who will go on maternity leave he or she could just say “Don’t come Monday.” That could happen even if all of her performance reviews up to that point had been exemplary and she had had wonderful feedback from the boss saying that the firm was so happy to have her was so lucky to have her and she was fantastic and then suddenly she announces she is pregnant and the next day she is fired. Under this legislation that the National Government has passed and is extending to the rest of the workforce she would have no ability to challenge that even though it is clear that she is being fired for being pregnant. As long as the boss says that her job is not working out or she does not fit in there or if the boss finds out that someone is gay or if they join a union and the boss does not want to have to deal with that or finds out that they are a member of the Labour Party and the boss does not agree with their political affiliations then that will be OK. 
Hon TREVOR MALLARD (Labour—Hutt South) 
: 
 I move  
That the question be now put 
. 
MICHAEL WOODHOUSE (National) 
: 
 I am very pleased to take a call on the title and commencement clauses of the Employment Relations Amendment Bill (No 2) and I refer back to the speech made by Mr Locke and in particular to the comment about the dark ages and the suggestion that the commencement date could be put back to 1911. That would be a very interesting development because it would give us the opportunity to put certain members of this Chamber under a 90-day probation period. I am sure we sure that members on this side would be quite keen to put Mr Mallard under a 90-day probation period. Although there is some merit in the backdating I do not think I could support it tempting though it might be. 
I am really concerned at the suggestion by members on the other side of the Chamber that this legislation could somehow undermine people’s human rights. The member who has just resumed her seat Ms Mackey mentioned that a person who became pregnant would somehow be fired under a 90-day trial period provision. I would be very happy for a member on the other side of the Chamber to take a call to challenge this but I am almost certain that the Employment Relations Act would absolutely rule that out as a possibility because the provisions of the legislation— 
Hon Steve Chadwick 
: Didn’t the member listen to examples being cited? 
MICHAEL WOODHOUSE 
: It was really hard to listen because it was about as underwhelming a speech as we could get. I am particularly interested in the issue of pregnancy. As far as I am aware firing a person for becoming pregnant would be absolutely forbidden under the provisions in this bill. [ 
Interruption 
] Here we go again! According to Labour members it does not matter what the law says; employers will act so badly that they will simply ignore it. 
Darien Fenton 
: And they are. 
MICHAEL WOODHOUSE 
: Then the employee is absolutely free to seek the remedies that are available. If an employee believes she has been wrongly dismissed because she became pregnant in the first 90 days of her employment she is absolutely justified in using the grievance processes available under the Act as it is now and that will not be changed. 
Hon Steve Chadwick 
: All powers are being stripped away. 
MICHAEL WOODHOUSE 
: Not all powers—that is the point I am trying to make. We can debate the merits of the powers as they have been diminished but does not help when members throw around Chicken Little examples of what might happen when this bill is passed. They absolutely will not be the case. 
Hon Steve Chadwick 
: It’s happening. 
MICHAEL WOODHOUSE 
: If it is happening then a personal grievance can be taken. This is the point. Members opposite are saying that the poor old employees are completely disempowered and absolutely cannot do anything certainly not without the unions. I absolutely reject the notion that this bill’s title needs to be changed to reflect those things. 
This bill contains very moderate and very reasonable changes that will add flexibility to our employment relations legislation and will not lead to the sky falling in as my friends on the side of the Chamber would have us believe. I simply reject those notions. Here is one suggestion for a new title: the “We Actually Trust Employees To Do and Think For Themselves and To Make Choices for Themselves Bill”. 
Lynne Pillay 
: That’s why you’re dumping them. 
MICHAEL WOODHOUSE 
: There they go again! Those members are saying that the 90-day probation period is terrible that it will undermine workers’ rights and that it will give nobody the sorts of opportunities we believe are possible. 
Let us look at an example of that choice. An employee may be marginalised may be a new immigrant may be a new graduate or may be a youth. That employee is trying to get back into the workforce and the employer quite often—and we certainly saw this with small and medium sized businesses—is not sure about whether to give them a chance. This provision would certainly do that so I think there is every opportunity to put the word “fairness” in the title. But clearly this bill is the Employment Relations Amendment Bill (No 2) and I think that title should stay. 
JACINDA ARDERN (Labour) 
: 
 This is my first call on the Employment Relations Amendment Bill (No 2). I am grateful to take a call on the commencement and the title clauses of this bill in particular. I feel that in all of this debate we have left out one crucial point and perhaps the title of the bill should be changed to reflect the fact that in none of this debate have we ever discussed the perception that seems to exist amongst employers that employing people should be something to be feared. That is essentially what Government members have told us through all of this debate. They have said that some particular groups in our society are less likely to be given a chance by an employer because employers fear those groups. 
If that is the case I ask why in this debate and generally have we never ever addressed the question of why employers fear employing new staff regardless of the age of individuals regardless of their background and regardless of how long they have or have not been in the workforce. I think this bill should be renamed the “Missing the Point or Avoiding the Real Issue Bill” because nowhere have we discussed why that fear exists or the best solution for it. I believe that the Government is currently absolutely copping out by bowing to a perception that our employment laws are something to be feared. It is simply stripping those laws away for the first 90 days. That is its solution. It bows to the perception and strips away the laws rather than asking whether that fear is based on perception or reality. 
Why do I come back to this question and why do I therefore think this bill should be renamed the “Missing the Point or Dodging the Real Issue Bill”? I spent several years working in the UK in an organisation called the Better Regulation Executive and this issue was one we tackled. I would love to talk to the member Tau Henare about this but I see he is currently engaged on his cellphone in the Chamber. I believe that that may be against the Standing Orders. He is not engaged in the debate which is a disappointment. 
Hon Trevor Mallard 
: I raise a point of order Mr Chairperson. My friend and colleague Tau Henare appears to be taking a phone call on his cellphone in the Chamber. That has been ruled out of order on a number of occasions. 
The CHAIRPERSON (Lindsay Tisch) 
: If that member is on a call I ask him to go into the lobby. 
JACINDA ARDERN 
: I was loath to point that out because I would like Mr Henare to hear what I have to say on this issue. 
I spent some time working in the UK in the Cabinet Office there where we began looking at this very issue. We detected that there may have been a perception amongst employers that employment law was difficult to deal with and perhaps if that perception pervaded too deeply then it may have impacted on an employer’s desire to employ people. We spent some time looking at the issue and found that actually a lot was based on perception and misinformation. I would have liked to see the Government spend more time looking at that issue. 
Again I come back to the fact that I do not believe that the title truly and adequately reflects what the Government has done here. The way New Zealand is ranked within the OECD is probably the best indicator of whether this is simply a perception issue. New Zealand is currently ranked third in the world for ease of doing business. Amongst that mix is employment flexibility where we are ranked on whether there is flexibility in our employment market and we come out third in the world. I would like to point out that that is a slippage of one place since the Labour Government was in power when we were second in the world for ease of doing business. I am afraid that in producing this bill this Government has simply bowed to perception and has not scratched beneath the surface of why employers have this perception. If this perception holds true why has the Government gone for just the first 90 days? Why is this Employment Relations Amendment Bill (No 2) not scrapping workers’ rights entirely? If that perception pervades generally then why has that principle not held true throughout our employment legislation? 
I think this bill should be renamed the “Employment Relations Cop-out Bill” because the Government has avoided the real issue here. Instead it has simply turned to a legislative solution for an issue for which it has not dug beneath the surface. That is incredibly disappointing because as a consequence it leaves workers unnecessarily without rights for the first 90 days of employment. 
PAUL QUINN (National) 
: 
 I move  
That the question be now put 
. 
A party vote was called for on the question  
That the question be now put. 
Ayes 64 
New Zealand National 58; ACT New Zealand 5; United Future 1. 
Noes 56 
New Zealand Labour 41; Green Party 9; Maori Party 5; Progressive 1. 
Motion agreed to. 
The question was put that the following amendment in the name of the Hon Trevor Mallard to clause 1 be agreed to: 
to omit “Employment Relations Amendment Bill (No 2)” and substitute “Employment Relations (Trial Periods and Union Access) Amendment Bill”. 
A party vote was called for on the question that the amendment be agreed to. 
JO GOODHEW (National—Rangitata) 
: 
 I raise a point of order Mr Chairperson. I seek your assistance given that I believe we are probably looking at the same tabled document. The document I am looking at is entitled “Amendments to the Employment Relations Bill (No 2)”. We are currently debating and voting on the Employment Relations Amendment Bill (No 2). Therefore I ask whether the document with suggested amendments is out of order. 
Hon TREVOR MALLARD (Labour—Hutt South) 
: 
 Mr Chairperson I think you are aware that there is no requirement to put a title at the top of an amendment when an amendment is tabled. 
The CHAIRPERSON (Lindsay Tisch) 
: The member is right. Although the heading may be incorrect the vote is not on the heading. The vote is on the proposed amendment to the clause and that is the question I have put. 
A party vote was called for on the question  
That the amendment be agreed to. 
Ayes 51 
New Zealand Labour 41; Green Party 9; Progressive 1. 
Noes 69 
New Zealand National 58; ACT New Zealand 5; Maori Party 5; United Future 1. 
Amendment not agreed to. 
The question was put that the following amendment in the name of the Hon Trevor Mallard to clause 1 be agreed to: 
to omit “Employment Relations Amendment Bill (No 2)” and substitute “Employment Relations (Trial Periods Union Access and Consequential Amendments) Amendment Bill”. 
A party vote was called for on the question  
That the amendment be agreed to. 
Ayes 51 
New Zealand Labour 41; Green Party 9; Progressive 1. 
Noes 69 
New Zealand National 58; ACT New Zealand 5; Maori Party 5; United Future 1. 
Amendment not agreed to. 
The CHAIRPERSON (Lindsay Tisch) 
: The next six amendments to clause 1 “Title” in the name of the Hon Trevor Mallard are substantially the same as amendments that have already been decided by the Committee. Therefore they are not in order. 
The question was put that the following amendment in the name of the Hon Trevor Mallard to clause 1 be agreed to: 
to omit “Employment Relations Amendment Bill (No 2)” and substitute “Employment Relations (Personal Grievance Claim Changes) Amendment Bill”.  
A party vote was called for on the question  
That the amendment be agreed to. 
Ayes 51 
New Zealand Labour 41; Green Party 9; Progressive 1. 
Noes 69 
New Zealand National 58; ACT New Zealand 5; Maori Party 5; United Future 1. 
Amendment not agreed to. 
The result corrected after originally being announced as Ayes 56 Noes 64. 
The question was put that the following amendment in the name of the Hon Trevor Mallard to clause 1 be agreed to: 
to omit “Employment Relations Amendment Bill (No 2)” and substitute “Employment Relations (Flexibility for Employers) Amendment Bill”.  
A party vote was called for on the question  
That the amendment be agreed to. 
Ayes 51 
New Zealand Labour 41; Green Party 9; Progressive 1. 
Noes 69 
New Zealand National 58; ACT New Zealand 5; Maori Party 5; United Future 1. 
Amendment not agreed to. 
TE URUROA FLAVELL (Whip—Maori Party) 
: 
 I raise a point of order Mr Chairperson. I seek leave to adjust our vote not on the amendment we have just voted on but on the one before that. 
The CHAIRPERSON (Lindsay Tisch) 
: Leave is sought to change the vote on that amendment. I ask what the member is changing his party’s vote to. He gave five votes in favour. 
TE URUROA FLAVELL 
: Obviously it should be five votes opposed. 
The CHAIRPERSON (Lindsay Tisch) 
: The member has sought to change that vote. The corrected vote is Ayes 51 Noes 69. The amendment is not agreed to. 
A party vote was called for on the question  
That clause 1 be agreed to. 
Ayes 64 
New Zealand National 58; ACT New Zealand 5; United Future 1. 
Noes 56 
New Zealand Labour 41; Green Party 9; Maori Party 5; Progressive 1. 
Clause 1 agreed to. 
Hon TREVOR MALLARD (Labour—Hutt South) 
: 
 I raise a point of order Mr Chairperson. I ask with your leave to withdraw one of the amendments in my name to clause 2. I am afraid that I forgot that only 30 days hath November and I have an amendment to change the commencement date to 31 November. It is the first amendment on one of the sheets. I apologise to the Committee because of course that amendment would have been facetious as the date does not exist. 
The CHAIRPERSON (Lindsay Tisch) 
: Leave is sought for that purpose. Is there any objection? There is no objection. 
The question was put that the following amendment in the name of the Hon Trevor Mallard to clause 2 be agreed to: 
to omit from subclause (1) “1 July 2011” and substitute “31 December 2011”.  
A party vote was called for on the question  
That the amendment be agreed to. 
Ayes 51 
New Zealand Labour 41; Green Party 9; Progressive 1. 
Noes 69 
New Zealand National 58; ACT New Zealand 5; Maori Party 5; United Future 1. 
Amendment not agreed to. 
The CHAIRPERSON (Lindsay Tisch) 
: The remaining amendments to the commencement date in the name of the Hon Trevor Mallard and Carol Beaumont are ruled out of order as they are inconsistent with the decision of the Committee. 
Hon TREVOR MALLARD (Labour—Hutt South) 
: 
 I raise a point of order Mr Chairperson. I think that if you look carefully you will see there are two sets of dates for which there are amendments not just one. Although a decision has been made not to amend one of the dates there has not yet been a decision not to amend the other. 
The CHAIRPERSON (Lindsay Tisch) 
: It does not matter that the member has asked for leave to withdraw one of the amendments. All the amendments are to commencement dates and I have ruled that they are out of order as the decision of the Committee has already been made on the commencement date. 
Hon TREVOR MALLARD (Labour—Hutt South) 
: 
 I raise a point of order Mr Chairperson. I do not wish to get into an intense argument on this matter but the bill has two commencement dates. Part of it is brought into force on one date and part of it is brought into force on another date. I think that any reasonable person would think that one could amend either of them. 
The CHAIRPERSON (Lindsay Tisch) 
: I thank the member for that point. All of the amendments that have been lodged are to amend the commencement date in clause 2(1) which is 1 July 2011. 
Hon Trevor Mallard 
: I think you have lost one Mr Chairperson. 
The CHAIRPERSON (Lindsay Tisch) 
: Well I have them here. The member has signed them. Henceforth I am ruling them all out of order. 
A party vote was called for on the question  
That clause 2 be agreed to. 
Ayes 64 
New Zealand National 58; ACT New Zealand 5; United Future 1. 
Noes 56 
New Zealand Labour 41; Green Party 9; Maori Party 5; Progressive 1. 
Clause 2 agreed to. 
A party vote was called for on the question  
That clause 3 be agreed to. 
Ayes 64 
New Zealand National 58; ACT New Zealand 5; United Future 1. 
Noes 56 
New Zealand Labour 41; Green Party 9; Maori Party 5; Progressive 1. 
Clause 3 agreed to. 
House resumed. 
Bill reported with amendment. 
The CHAIRPERSON (Lindsay Tisch) 
: I move  
That the report be adopted. 
A party vote was called for on the question  
That the report be adopted. 
Ayes 69 
New Zealand National 58; ACT New Zealand 5; Maori Party 5; United Future 1. 
Noes 51 
New Zealand Labour 41; Green Party 9; Progressive 1. 
Report adopted.