Swain Paul: Employment Relations Amendment Bill (No 2) Health and Safety in Employment Amendment Bill (No 2) Human Rights Amendment Bill — Third Readings 
Swain Paul: Employment Relations Amendment Bill (No 2) Health and Safety in Employment Amendment Bill (No 2) Human Rights Amendment Bill — Third Readings 
[Volume:621;Page:16269] 
Hon PAUL SWAIN (Minister of Labour) 
: 
 I move  
That the Employment Relations Amendment Bill (No 2) the Health and Safety in Employment Amendment Bill (No 2) and the Human Rights Amendment Bill be now read a third time 
. The Employment Relations Bill (No 2) amends the Employment Relations Act which is by and large working well. How do we know that? Well the Leader of the Opposition Don Brash said so. Having said once that he would repeal or scrap the Employment Relations Act— 
Darren Hughes 
: By lunchtime. 
Hon PAUL SWAIN 
: —probably by lunchtime. In fact lunchtime itself will be gone by lunchtime if one listens to what the National Party is saying. Don Brash is now saying that employers think the Employment Relations Act is a good Act so National will keep it. Now what he is concerned about is this legislation and of course it is always one more bill that he is not happy about. But we did say at that time that we would review the Employment Relations Act and we have. The Employment Relations Bill (No 2) and the other two bills before us are the outcome of that review. 
I would like to focus on a couple of issues in response to a some matters that were raised during the Committee stage. The first point concerns “freeloading” or “passing on”. If one is a union the issue is about freeloading—that is people getting the benefits of bargaining without making any contribution or as many of the delegates have said it is like someone who does not pay his or her taxes and expects to get free health-care. So the unions have most concern about that and I am hoping the member also agrees with that. On the other hand for employers it is an issue to do with “passing on”. So it is “freeloading” if one is a union  and “passing on” if one is an employer. 
One of the critical things was how we get the relationship right between those who are on collective agreements and those who are on individual contracts. It is important to say right from the start that employers are not prevented from providing all their employees with the same terms and conditions of employment so long as the bargaining has been carried out in good faith. Some of the employers were worried about whether they could have employment contracts people on one rate and individual contracts people on the other. In other words could they have collectives and individuals on the same rate. The answer is yes. We made it quite clear and specific in the legislation that one could do that provided good-faith bargaining occurs. There cannot be anything wrong with that. 
The next point is about the bargaining fee arrangement. It is not compulsory. I have heard a number of ridiculous and silly comments made in this House by people who wanted to work themselves into a lather about this found that it was not what they thought it was but continued in a lather all the same. I want to say that the contribution made by Peter Brown on this has been I think quite measured on the basis that he considered that these particular provisions were quite reasonable. The bargaining fee arrangement will happen only where there is a willing employer a willing union and an acceptance by affected employees. Unions cannot strike over bargaining fees and they cannot refuse to conclude a collective agreement just because they want the agreement to include a bargaining fee clause. The legislation is quite clear on that. Even where the employer the union and the majority of employees in a secret ballot agree to have bargaining fees individual employees can still opt out. The bargaining fee provisions give employers unions and employees another way to address union concerns about freeloading extend the benefits of collective bargaining and still protect the integrity of individual choice. So let us go through the issues again. If people want to have a bargaining fee— 
Hon Maurice Williamson 
: What would it be—100 percent? 
Hon PAUL SWAIN 
: It is not specific but clearly when it comes to a ballot the amount of the bargaining fee would need to be included in the clause on which people are voting. 
Hon Maurice Williamson 
: Do you agree it should be less? 
Hon PAUL SWAIN 
: I think the legislation says something like it will not be any greater than that. The point really is that first of all the union and the employer have to agree. Peter Brown is quite right when he says that no employer is going to be bullied on this sort of thing. [ 
Interruption 
] That member does not have the same view of the employers that Peter Brown has which is what I have. If people do not want to have this it will not be in it. Firstly employers and unions have to agree. Secondly there has to be a ballot of the members who are covered potentially by that particular collective. 
Dr Wayne Mapp 
: In many cases the majority will be unionists. 
Hon PAUL SWAIN 
: Yes that is potentially true. A majority could be unionists and it could expect to go through. So what did the Government do? It says that we cannot have in this case the tyranny of the majority. What we do say is that if some people want to opt out they can. It is just a simple matter of saying: “I don’t like this arrangement; I’m out of here.” I am trying to ask that member what is wrong with that. People who want to get the benefits of the collective—that is the benefits that people have paid for to get the wages and conditions improved—somehow say that people who do not have to pay anything should make a contribution. What is wrong with that? There is absolutely nothing wrong with that. But we have gone one step further and said that if people do not want to be part of the union that is fair enough because there is free choice. People do not have to be part of the union and the collective. They can opt out. What is wrong with that? There has been some criticism that it is a bit loose. I say to the House that— 
Dr Wayne Mapp 
: Union mates I guess. 
Hon PAUL SWAIN 
: Well “Union mates”—this is ridiculous! We think that by and large this provision will be used quite rarely. It will be used in places where there is high unionism and where in fact a number of employers say they would quite like to have one arrangement. It will be interesting to see how the measure proceeds. It is a very gentle bargaining arrangement. Peter Brown who has just arrived says that it is quite reasonable and I agree with that. It is a shame he could not bring himself to recognise the full benefits of the legislation that the Government proposed so that he could support it in its entirety. However I do recognise that he voted for this clause and I thank him for that. 
Another important issue is the test of justification of personal grievance cases. The test now reinforces a fair and reasonable approach. Most people including Employment Court judges made good submissions on it. Employers’ actions and how they go about them must reflect what a fair and reasonable employer would have done in the circumstances. So that particular clause was improved by the Transport and Industrial Relations Committee. It has a lot more common sense and I thank the members of the committee for that. 
The Government supports the promotion of best practice so that employers can use the correct procedures with relative ease and avoid costly mistakes. As I stated before I will be looking at ways to give more guidance to employers and employees around personal grievance issues especially the procedural requirements for dismissals and disciplinary actions. Irrespective of what legislation we have there will always be personal grievance arrangements. There were under the Employment Contracts Act. That is just the way of things. At some stage employers will want to dismiss someone for whatever reason and the employee might say that it is not fair. There will always be some dispute. 
It is fair to say that generally speaking the provisions around all those things whatever the legislation are not particularly clear. One of the criticisms I hear from some of the employers is that a lot of people get caught procedurally when in fact it is the substance of the issue that is important. 
Finally I would like to comment on the introduction of protections for the most at-risk employees. In sale transfer or contracting-out a higher level of protection has been given to those employees who have been most vulnerable to restructuring situations in the past. Those employees will have the right to transfer to the new employer on the existing terms and conditions of employment and are those in the cleaning and food catering industries. To accommodate future change in the labour market and in employment practices we have built in a clear process for amending the groups of employees who will have a statutory right to transfer in restructuring situations. 
Other employees will be given protection though a requirement for their employment agreements to contain a provision that describes what steps the employer will take to protect employees affected by a sale transfer or initial contracting-out situation. The details of those provisions will be a matter for agreement between employer and employee. 
I acknowledge firstly the contribution of the Hon Margaret Wilson to the legislation. Both the Employment Relations Act and the Employment Relations Law Reform Bill reflect her commitment to an employment relations framework based on cooperation rather than confrontation and I salute her for that. I also thank the members of the Transport and Industrial Relations Committee. I also thank the officials for the work they have done. They got slagged a bit in the Committee stage and I found that quite reprehensible; I thank them for the huge amount of work they have put into this legislation. 
The bills represent another step forward towards building an employment relations framework encompassing fair minimum standards and promoting productive employment relationships. I commend the Employment Relations Amendment Bill (No 2) the Health and Safety in Employment Amendment Bill (No 2) and the Human Rights Amendment Bill to the House.