Employment Relations (Breaks and Infant Feeding) Amendment Bill — Instruction to Committee In Committee 
Employment Relations (Breaks and Infant Feeding) Amendment Bill — Instruction to Committee In Committee 
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Employment Relations (Breaks and Infant Feeding) Amendment Bill 
Instruction to Committee 
Hon Dr MICHAEL CULLEN (Leader of the House) 
: 
 I move  
That it be an instruction to the Committee of the whole House on the Employment Relations (Breaks and Infant Feeding) Amendment Bill that it have the power to consider and if it thinks fit adopt the amendments set out on Supplementary Order Paper 229. 
Motion agreed to. 
In Committee 
Part 1 Preliminary Provisions 
KATE WILKINSON (National) 
: 
 I rise to speak in relation to Part 1 of the Employment Relations (Breaks and Infant Feeding) Amendment Bill. The purpose of this bill was fairly straightforward. It provided firstly for roughly the codification of the rules relating to meal and rest breaks which most thought were already enshrined in law. Secondly it provided for employers to provide breastfeeding breaks and facilities where it is reasonable and practicable. So we have to ask the Minister why at the eleventh hour we have an amendment set out on Supplementary Order Paper 229 relating to KiwiSaver. 
What has KiwiSaver to do with infant feeding meal breaks and rest breaks? This is a disgrace. It is a total abuse of process. There has been no notice of this amendment there has been no scrutiny of this amendment and there has been no consultation on this amendment. The Minister is fully aware that proposed changes to KiwiSaver have raised concerns amongst many businesses such as Business New Zealand the Employers and Manufacturers Association and many many others. Yet the Minister arrogantly—and I can only say “arrogantly”—persists in pushing through an amendment that at the very least should be subject to consultation and select committee scrutiny. 
This is a disgrace. It is a sad sad day for democracy in New Zealand. But we have had this situation before have we not? We had it with the Electoral Finance Bill we have had it with the Climate Change (Emissions Trading and Renewable Preference) Bill and now we are having it with believe it or not the Employment Relations (Breaks and Infant Feeding) Amendment Bill so that this Minister can sneakily include an amendment relating to KiwiSaver. This is reckless lawmaking at its worst. This is irresponsible lawmaking at its worst. This is stripping away any safeguards whatsoever from the legislative process and it is an utter disgrace. 
The Minister may care to take notice of the concerns expressed by Professor Waldron of the New York University school of law. He was particularly scathing about our lawmaking process. He was particularly outraged by the evolution of procedures for fast-tracking legislation which he described as disgraceful by world standards. An article in the  
New Zealand Lawyer 
 states that at the moment New Zealand’s current legislative process is reckless. In a deserted Chamber bills are rushed through under urgency and members are subservient to the executive. There are constant closure motions and there is no quorum no second Chamber and no checks and balances. The professor asks how we can really take seriously the suggestion that a duty of care is properly being exercised with regard to legislation. That is what the professor said. He said that the effectiveness of the select committee process is undermined by the constant use of Supplementary Order Papers that bring provisions into a bill after the select committee deliberations and that is exactly what we have with the amendments to this bill. 
Hon Trevor Mallard 
: I raise a point of order Mr Chairperson. I think the member might have just picked the point of order I am going to raise. She is now 3 minutes into her speech and she is yet to address the substance of Part 1 as opposed to the general processes around it. 
The CHAIRPERSON (Hon Clem Simich) 
: Thank you for raising that. 
KATE WILKINSON 
: Speaking to the point of order I tell the member that I am talking about the purpose of the bill which has been changed at the last minute by a sneaky little Supplementary Order Paper and that is very relevant to the debate on this part. 
The CHAIRPERSON (Hon Clem Simich) 
: Thank you for that but it did not add to the point of order at all. I ask you to continue on Part 1. 
KATE WILKINSON 
: Well what is the relevance the purpose of the bill? It should have been to require facilities and breaks to be provided as far as reasonable and practicable in the circumstances for employees who wish to breastfeed in the workplace or during work periods. The purpose should have been to require employees to be provided with rest breaks and meal breaks. The bill should not have been amended with the purpose of making it a ground for a personal grievance for an employee’s employment to be adversely affected because he or she is a member of a KiwiSaver scheme or a complying superannuation fund. 
That amendment is a disgrace. It is an abuse of the process. It is as Professor Waldron said reckless. He said that the party in power abuses the process to get its measures rushed through quickly and without political embarrassment and that what is required is people who will stand up for the integrity of the process. This amendment is a typical example of that abuse of process. 
This bill— 
Russell Fairbrother 
: Now for the bill. 
KATE WILKINSON 
: I tell Mr Fairbrother that I have been talking about the bill and about the abuse of process that is so often displayed by this arrogant Labour Government. 
This Government has no concern whatsoever for consultation no concern whatsoever for select committee scrutiny and no concern that perhaps some people out there trying to make a living might like to present a submission on the amendment to this bill. This Government has no concern whatsoever for ordinary New Zealanders who are trying to make a dollar working—just a sneaky little amendment as a Supplementary Order Paper at the last minute that tries to link KiwiSaver to meal breaks. Perhaps the Minister can tell us the relevance of KiwiSaver to meal breaks. 
Dr RICHARD WORTH (National) 
: 
 This Employment Relations (Breaks and Infant Feeding) Amendment Bill is important legislation because as the Transport and Industrial Relations Committee noted it was all about amending the Employment Relations Act in a very specific and defined way. That very specific and defined way was to require employers to provide employees with meal and rest breaks and with appropriate facilities and breaks for those who wished to breastfeed or to express breast milk. I must say that when I first saw the bill I saw that it would support Government policy by protecting and promoting breastfeeding. It was also planned that the provisions regarding breastfeeding would be supported by a code of employment practice. Who could argue against that? So it was that the bill saw speedy passage through the Transport and Industrial Relations Committee having been introduced as recently as 2 April 2008. It had a first reading only 7 days later after which it was sent off to the Transport and Industrial Relations Committee for review. 
The bill is a very short amendment bill which in fact contains just two parts. But of course as others have said and properly said we are seeing a moment sadly in the life of this Labour-led Government of substantive abuse of process and on some basis that is not clear to members on this side of the Chamber we are seeing that the Employment Relations (Breaks and Infant Feeding) Amendment Bill is to be hugely expanded in scope to deal with some quite subtle issues around KiwiSaver. I have listened to the Hon Trevor Mallard castigate Kate Wilkinson a lawyer of substantial history knowledge and learning on something that in constitutional law terms is incredibly offensive—that is the weaving into legislation of a highly specific character significant and substantive changes to the KiwiSaver regime that are singularly inappropriate. I am now directly addressing Supplementary Order Paper 229 which is directly related to the substantive bill and I ask when the Government conceived this great plan. When did it alert the Opposition to its plan to broaden the scope of the legislation in the way I have just described? Well it was as recently as Tuesday 2 September 2008—as recently as today. But that cannot be a source of satisfaction for a Government and that cannot be a source of pride for a Government; it should be a source of disgrace and shame. 
What is going on here? What is going on here in this Supplementary Order Paper referenced to the particular part of the bill we are now dealing with? Well the amendments made by the Supplementary Order Paper relating to the KiwiSaver scheme and complying superannuation funds are to come into force on the day after the date on which the bill receives the Royal assent. And we are now seeing new provisions grafted on to this bill to add a further purpose which is to make it a ground for a personal grievance for an employee’s employment to be adversely affected because he or she is a member of the KiwiSaver scheme or a complying superannuation fund. People might wonder how this is properly related to the Employment Relations (Breaks and Infant Feeding) Amendment Bill. The short position is that it is not. I hope that the Minister in the chair the Hon Trevor Mallard will explain if he can in a way that is measured and reasonable and constitutionally based how appropriate it is—for it scarcely is—for this particular event to confront us on what is a day of shame for this Government. 
Dr WAYNE MAPP (National—North Shore) 
: 
 In starting my speech I note that I found my colleague Dr Worth’s speech very apposite to the occasion. I said by way of interjection a bit earlier that the Government was tired and arrogant and the Minister in the chair the Hon Trevor Mallard denied that. I assume he denied it because of the conjunction of the terms I used: that it is both tired and arrogant. Perhaps he thought that if we described the Government as being tired and out of ideas then that might be legitimate or conversely if we simply described it as being arrogant and out of touch then that might also be appropriate. But to tie the two terms together was seen by the Minister as being perhaps a little unreasonable. 
There is a reason why I have started on that point. It is that we see an abuse of procedure whereby a fundamentally new part of the bill has been inserted today. The Minister in the chair the Hon Trevor Mallard knows full well that his views on the KiwiSaver issues around employment have generated a great deal of controversy. The Employers and Manufacturers Association (Northern) Inc. has taken particular issue with the Minister on that very point. The reason it has done so is that the Government is once again cutting across the freedom of employers to be able to negotiate fairly and reasonably with employees. 
Hon Trevor Mallard 
: You mean to cut wages. 
Dr WAYNE MAPP 
: The Minister says that and it is a typical response is it not? He displays no understanding of the concept of total remuneration whatsoever by that interjection. Why can employees not choose either to have more cash in their pockets or to join KiwiSaver? People could have that reasonable choice. What is wrong with that? I would ask the Minister what is wrong with people exercising choices around their remuneration. That is why the Minister of Labour is in so much trouble on this issue. It is just redolent of this Government to take a controlling approach to things. 
I just say to the Minister that I was phoned today about political correctness. I said the single feature about political correctness—and it followed Sir Brian Lochore’s speech actually—that really upsets New Zealanders is the way that the Government thinks it knows best. In relation to any social or economic issue it thinks the proper approach is to legislate in order to tell people how to think. The environmentally friendly light bulbs are a case in point; this bill is another case in point. Here the Government is basically saying to employers and employees that only one approach is possible. We can forget about freedom of contract. We can forget about people saying that they want cash rather than KiwiSaver contributions—they do not have that choice. That is the truth of the matter. 
We on this side of the Committee are voting against the amendments on Supplementary Order Paper 229 in the name of the Hon Trevor Mallard. The Minister knows full well that we are supporting the bill as a whole and there are very good reasons for that. We understand that in appropriate circumstances employees need legislation in this area. Some of us are aware that there has been a little abuse in this area in some sectors so we think it is reasonable for there to be some legislation on this matter. If the Government had kept the legislation to that issue only then we would have no problem with it. The fact that the bill was introduced into— 
Sue Moroney 
: Yeah right! 
Dr WAYNE MAPP 
: The Labour junior whip says “Yeah right!”. I need to remind her that National is actually voting for the legislation so her Tui ad reference hardly makes any sense. Members know what people say about “Yeah right!”: it means the answer is actually no. I say to the junior whip that in this instance the answer is actually yes because we are voting for the legislation. But we are voting against this particular Supplementary Order paper in order to express our concerns about the way that the Government thinks there is only one solution to the issues of KiwiSaver and so forth. 
I would say that will be one of the fundamental tests of this Government. One of the fundamental reasons I suggest that the public will generally be voting against this Government is the way it has consistently said there is only way: the Government’s way. This Government’s pattern of behaviour is that it says it is either its way or the highway. I say to the Government that I suspect New Zealanders will say in a few weeks’ time: “Frankly it is the highway. Out with you!”. 
Dr PAUL HUTCHISON (National—Port Waikato) 
: 
 It is almost unbelievable when one comes across this Supplementary Order Paper apposite to Part 1 of the Employment Relations (Breaks and Infant Feeding) Amendment Bill and finds insinuated in it this outrageous bit where the Labour Government tries to trivialise the importance of breastfeeding by bringing in its KiwiSaver scheme in terms of a ground for a personal grievance. It is almost unbelievable that it would treat in that way something as important and as serious as breastfeeding which in New Zealand sadly is way below average levels and needs encouragement which is why the National Party has agreed to support the substance of this bill. But certainly National is astounded and appalled at this Labour Government when it abuses the parliamentary process in such an awful way. 
My excellent colleague Kate Wilkinson was absolutely right when she quoted Professor Jeremy Waldron of the New York University school of law who commented in the  
New Zealand Lawyer 
 just how “terribly irresponsible” New Zealanders’ attitude is towards the parliamentary institution which has been the trend of late under this Labour Government. In fact Waldron said he was particularly outraged by the evolution of procedures for fast tracking legislation and my word have we ever seen a display of that this afternoon when the most important legislation that has come through Parliament in the last 9 years has been rammed through in 4 hours with its 750 new amendments whereas it should have been given appropriate process. 
Coming back to this bill the Employment Relations (Breaks and Infant Feeding) Amendment Bill I say that we once again see the Labour Government abusing parliamentary process in the most awful way. It is inconceivable to think that such a bill dealing with infant feeding could suddenly have insinuated in its purpose this extra amendment to make it a ground for a personal grievance for an employee’s employment to be adversely affected because he or she is a member of a KiwiSaver scheme or of a complying superannuation fund. I am quite appalled that the Labour Government would trivialise something so important. As my learned lawyer colleagues have said it is totally inappropriate in this legislation for the Labour Government to have suddenly without any consultation with anyone else decided to bring this irresponsible amendment into the bill. What is more Professor Waldron made this point: “In New Zealand legislative proceedings are utterly dominated by the executive.” And that is the case of this Labour Government. With something like 26 ministerial positions it is almost inevitable that one way or another one of those Ministers will abuse his or her power and this is a classic example. One would have hoped that for something as important as breastfeeding the Government would at least have ensured that it fully consulted all the parties that had agreed to support this legislation. Instead in a sneaky way—in a very very sneaky way typical of the dying days of this Labour Government—it has instead decided to insinuate this absolutely inappropriate amendment into otherwise very important legislation for the women of New Zealand. I would think that the women of New Zealand— 
Russell Fairbrother 
: What about the babies? 
Dr PAUL HUTCHISON 
: And babies—absolutely. I would think that the women and babies of New Zealand would feel totally trivialised. 
SUE MORONEY (Labour) 
: 
 Thank you Mr Chairman for the opportunity to speak to Part 1 of the Employment Relations (Breaks and Infant Feeding) Amendment Bill. Well well is it not interesting to see the real agenda of National Party members coming out loud at this time in the parliamentary cycle? They have been pretending to support this legislation for such a long time; it has always been my estimation that that was a very surface pretence at supporting the legislation and now they think they have found the perfect excuse to withdraw their support. Dr Mapp said before that they will continue to support and vote for the legislation. Well I look forward to that because I tell Dr Mapp that the third reading of this bill is not very far away and I look forward to his holding on to his word and voting for the legislation at its third reading. But somehow I doubt that that will happen because I think the real agenda of the National Party will come out during the third reading of this legislation. 
I am very pleased as one of the members of Parliament who helped to draft this bill and actually had part of this legislation as my member’s bill to see it being dealt with under urgency because these are urgent matters. I am also very pleased to see that the purpose of the bill will be extended by a Supplementary Order Paper to stop employers making it grounds for a personal grievance where employers try to disadvantage employees who have chosen to save for their retirement. That is what we are trying to do in this country. KiwiSaver has made a significant difference to the savings culture in this country. We have moved people quite some distance from a credit card culture where people have been spending money that they actually do not have to a savings culture saving for their retirement. Is that not a great thing? 
David Bennett 
: They have lost money on it. 
SUE MORONEY 
: I tell David Bennett to listen to the numbers; 700000 New Zealanders are now saving for their retirement thanks to the foresight of this great Labour Government and Dr Michael Cullen in particular. We are ensuring that we safeguard those 700000 New Zealanders so that they do not get ripped off by their employers and also so that their employers do not pocket taxpayer money because in fact that is what has been happening. Employers have had tax credits that fund the 1 percent employer contribution and where they take that 1 percent off the wages of those workers they are putting the taxpayer contribution to KiwiSaver literally in their back pocket. That is not acceptable. It is certainly not acceptable to a Labour-led Government. It might be acceptable to National and we have not heard one speaker from National saying what his or her actual position is on that stance taken by employers over KiwiSaver. 
What has National got to say about good decent working New Zealanders making the commitment to save for their retirement and having their employers disadvantage them by cutting their wages? What is the National Party’s position on that? It is very clear what the Labour-led Government’s position is on that. It is that we will not tolerate it; and we will not tolerate it by moving this amendment.