Bradford Sue: Holidays Amendment Bill — Second Reading 
Bradford Sue: Holidays Amendment Bill — Second Reading 
[Volume:620;Page:15973] 
SUE BRADFORD (Green) 
: 
 There is a classic headline in the  
Dominion Post  
of 2 September of this year which states: “Unions retreat as Swain removes socialist edges of employment law”. The article goes on to state: “On Tuesday Mr Swain delivered the first leg of the double with a package of distinctly business-friendly measures on the Holidays Act.” I do not think it is exactly the unions that are retreating with regard to this bill. Rather I lay the blame firmly at the doorstep of the Labour Party which for some reason has found itself convinced by employers that certain measures must be taken to address unintended consequences of the Holidays Act that was so recently passed last year. Although the Green Party agrees that there is one unintended consequence in particular that is worthy of attention—an anomaly that may allow some workers to claim penal rates twice for working on a public holiday—we certainly do not accept that a core achievement of the Holidays Act in the area of obtaining proof of sickness or injury should be reversed. Labour last year boasted of the fact that finally with its new holidays legislation workers could not be required to produce a medical certificate until after they had been away for at least 3 days with a sickness or injury either to themselves or to their children or other dependants. This amending bill in effect partially reverses that erstwhile progressive measure by allowing employers to require staff to produce medical certificates during or after they have taken even 1 day off if the employer has so-called “reasonable grounds” to suspect that the sick leave that is being taken is not genuine. 
There is a whole raft of problems with this amendment. Firstly there is no clear proof that the kind of abuse this measure is aimed at is occurring on a greater scale than would happen anyway with or without the Act of 2003. Although the Council of Trade Unions has been assiduous in seeking hard evidence from employers as to whether an increased level of inappropriate sick leave is happening as far as I know none has been produced. Allegations based on hearsay have been bandied about but that is not the same as hard evidence of the widespread flouting of the rules and of the abuse of sick leave in that way. I do accept—and I have been an employer myself—that there will always be people who at times have a tendency to take Mondays or Fridays off as sick days for reasons that are not down to sickness or injury. Anyone who has ever worked on a big site or who has been an employer or manager knows that. But in fact with only 5 paid sick days a year there is a limit to how much the rules can be flouted. As well I believe that good employers have in the past treated this kind of problem and will continue to treat it in the future as a human resource issue by working with the staff member if there is a problem in order to try to see what is going wrong and if the problem persists by dealing with it through the normal and regular disciplinary procedures available to the employer. This age-old problem does not require a wholesale reversal of the Government policy on medical certificates. 
Secondly employers and the Government keep on talking about a pattern of behaviour that will lead employers to be suspicious of an employee’s absences from work. Like many union people I find it hard to imagine how much of a pattern of behaviour can be established by workers taking somewhere between 1 and 5 days’ sick leave. Has the Government considered how an employer will prove reasonable grounds after 1 2 or 3 days’ absence? From an employee’s point of view working one’s way through this labyrinth of definition and mistrust with an employer on the worksite will be possible barely if the worker has an active union to help advocate for him or her. But I despair of the ramifications of this new law for the 80 percent of our employed workforce who are not members of trade unions. I guess that one unforeseen consequence of all this from a big-business point of view may well be that more people will decide that it may make sense to join a union. 
A third problem with this amendment is that there will be real financial difficulties for workers who are required to provide proof of sickness or injury. Although the Government has at least seen fit to require employers in this situation to agree to meet employees’ reasonable expenses for obtaining such proof that does not address the fact that people are usually required to pay a doctor emergency centre or other provider upfront and will only be able to seek reimbursement later on. A huge number of workers in this country are on wages of somewhere between the adult minimum of a pitiful $9 an hour and around $12 to $13 an hour. Those people are trying to house feed clothe and generally support themselves and their families. Being required to pay up to $60 or more especially if it is on the weekend in order to get a medical certificate—or even the lower fees of $15 to $20 if they are lucky—will often simply not be possible. The money is not there. I do not know whether the people supporting this law change really understand what life is like on the margins. When will workers be paid back for the money that they have to front up with? That is if they can find it in the first place. What happens to them if they cannot afford to pay the doctor or clinic? Will they still be subject to disciplinary action for the non-production of proof of sickness or injury basically because they are poor? What if there is a dispute with the employer about the responsibility for costs later on? All of that creates a further unnecessary tangle and potential extra costs in terms of time money and compliance for both a staff member and an employer. 
I know that the Government’s response to that may well be to say that we now have primary health organisations everywhere which are offering lower charges. However it has become all too apparent that in some cases the primary health organisations are actually charging their patients as much if not more than their component doctors or medical practices were charging before joining the primary health organisation. 
A fourth area of concern for the Green Party is that this amendment covers not only the worker who is taking sick leave because of his or her own ill health but also people who take time off because they need to care for their sick or injured children. I wonder to what extent the Government has considered that aspect and the fact that sick children may have to be dragged off to the doctor to satisfy an employer’s suspicions even when they do not need to go and would be better to be tucked up safely in bed at home with mum or dad. One could end up with a nonsensical situation in which an ill child or a frail elderly dependant becomes subject to the costs and inconvenience of an unnecessary medical examination simply because his or her primary caregiver cannot risk not taking proof to the employer. What privacy rights will dependants have in relation to an employer with whom they have no connection reading medical certificates that relate to them? There is no clarity at all in the bill about who owns those medical certificates and what happens with the private health information that is held within them. 
The only good thing that can be said about this part of the bill as reported back from the Transport and Industrial Relations Committee is that at least the Government has agreed to add a clause that specifies that an employer does not have the right to force an employee to see a company doctor rather than his or her own doctor. As the bill was first drafted we would have seen an even worse situation comparable with that which faces so many accident compensation claimants in which employers could require staff to see a doctor of the employer’s choice with even more alarming consequences than those we are left with this afternoon. However that mild improvement to the original amendment does not go anywhere near to justifying or ameliorating all its other negative impacts. The Green Party firmly believes that the clauses in this bill around proof of sickness or injury are inconsistent with the intentions of the Act and are simply an attempt by the Government to pacify some elements in the business community. 
Turning briefly again to the matter of penal rates we were pleased that the Government saw fit to amend new section 50 in order to clarify that the definition of penal rates includes payments only for particular days of the week or for public holidays and not payment for other days such as the sixth and seventh days of work. However that improvement like the one around allowing workers to see their own doctor rather than a company one is not enough to bring us to support the bill. Overall the Green Party does not see the need to amend the Act along those lines and does not think sufficient evidence has been brought forward to justify the changes. We will vote against this bill today and at all further stages of its progress through the House as we believe it introduces unnecessary retrograde and punitive measures especially in the area of sick leave that run counter to the intentions of not only the Holidays Act but also the Employment Relations Act. This bill unfortunately panders to a culture of distrust and suspicion found among a minority of employers. It is a real pity that Labour has chosen to head off in that direction despite the good moves in other employment legislation that is currently before the House.