Nash Stuart: Employment Relations Amendment Bill — In CommitteeText is incorporated into the Bound VolumeNash Stuart: Employment Relations Amendment Bill — In Committee[Sitting date: 22 October 2014. Volume:701;Page:174. Text is incorporated into the Bound Volume.]STUART NASH (Labour—Napier):I must admit being back for the first time in 3 years that I was astounded to have to speak on a bill that takes away the rights of good hard-working Kiwis. The first speech I heard was the Prime Minister’s Speech from the Throne which set out lofty ambitions around child poverty housing and all these other great things yet the first piece of legislation before the Committee is a piece of legislation that takes rights from good hard-working Kiwis. There is a little bit of a dichotomy there I think.What I would like to speak about is section 4(1B)(a) inserted by clause 4 in Part 1 in the bill. This talks about the disclosure of information. Section (1B) states: “However subsection (1A)(c) does not require an employer to provide access to confidential information—”. What it does is it sets out a list of conditions under which an employer does not have to provide confidential information to an employee. Personally I think that this offends the principle of natural justice and that is actually a right to a fair hearing.But let me give the other side the reason why we have this bill and especially clause 4 before us. It is set out in the regulatory impact statement. Let me quote: “This arose from a case between the Vice-Chancellor of Massey University and Wrigley in 2010.” It is quite a well-known case in the Employment Court. It set a number of precedents. It is the only case on this and let me tell you what the regulatory impact statement says: “The judgment is not consistent with widespread desirable and accepted employer practices in restructuring and redundancy situations …”. This bill is very definitely about what is good for the employer and how they can make workers redundant without going through the practices of fair and reasonable consultation. It says it here in black and white. Do you know what? When the regulatory impact statement actually looks at the scope of this problem it says: “There is limited information on the scale of this problem.” It actually admits they do not know what the problem is. There is one case—one case.I will tell you one other thing the Transport and Industrial Relations Committee did. It had a look at a range of options on how to deal with this and one of them it said was the status quo. What they said about that is: “Benefits of the status quo include time to monitor the impacts of the decision and see how employer practices develop.” Do you know what? They decided not to do that. I suspect that the Attorney-General who is a very good lawyer and is renowned in legal circles has great difficulty with this bill. This bill is a reaction to one decision in the Employment Court. Without seeing how this beds down without seeing how the market handles this the Government is saying: “No we don’t like that decision. We’re going to change the law.” That is not a good way to change the law. That is not good legal practice. I am astounded that the Attorney-General has not just tapped Mr Bennett on the shoulder and said: “Excuse me Mr Chair of that select committee I don’t think this is the right thing to do. Let’s give this a little bit of time and let’s see how the market reacts.”The other thing that surprises me is that the regulatory impact statement says when it talks about the status quo: “These [legislative] requirements differ significantly from commonly understood principles of information provision to employees particularly during restructuring and redundancy situations.” But I would argue that that is a contradiction of the clause above it which said they do not even know the scale of the problem. So what are we actually trying to address here? One situation—one situation.Let us have a look at the legislation. Section 4(1B)(a) as inserted by clause 4 says that this is not requiring “an employer to provide access to confidential information—(a) that is about an identifiable individual other than the affected employee …”. Keep in mind that a lot of this is about restructuring and making employees redundant. There is a whole lot of legal precedent around how you can actually do this and in a number of legal precedents and the Attorney-General will be aware of these—you know the Communication and Energy Workers Union Telecom New Zealand Ltd Wellington International Airport and Air New Zealand Ltd. These set out a number of tests around the definition of consultation. A number of these tests are very important to what actually constitutes fair and reasonable behaviour.As the clause I read out says that is about an identifiable individual other than the affected employee. The thing that really sets off alarm bells for me about this is with the non-disclosure of information. A bad employer—and most employers are good employers; I want to put that on the table—could say to an employee: “I’m not going to tell you Mr Employee why I am firing you because they have changed the law and I don’t have to disclose that information.” I think that is a real breach of the duty to act fairly.David Bennett: Read the bill.STUART NASH: I am reading the bill Mr Bennett. I am reading the bill here. I actually read it out. The other thing here if we go down to subsection (e): “where it is necessary for any other good reason” this is where an employer does not have to disclose information “to maintain the confidentiality of information (for example to avoid unreasonable prejudice to the employer’s commercial position).”—again there are a number of legal precedents around this. What determines “unreasonable prejudice”? I think what is going to end up happening is this is going to have to be determined by jurisprudence because this is just not clear.I can imagine an employer would say: “I don’t have to disclose that information why I am making you redundant because it is ‘unreasonable prejudice’.” But the problem we have got here as I see it is that there are a number of very clear tests that have been set out by the Employment Court around how an employer must deal with an employee during a restructuring situation. They are very clear because what has happened in the past is employees have not been treated well and the Employment Court has now set out a number of tests that allow the employee to have access to natural justice. I can imagine as I mentioned that this would allow an employer to be very disingenuous in the way they communicated with that employee and I have grave concern.But the concern I really have is that the tests that are set out now around restructuring and certainly in terms of redundancy are quite clear. It makes it quite easy for an employee who feels aggrieved to actually take a case to the Employment Court and get a fair hearing in a personal grievance. The reason I say that is it is actually very expensive for an employee to take a case to the Employment Court. Luckily if an employee is in a union then the union has the ability to do that and what you find in a lot of these cases before the Employment Court is it is actually unions that are taking an employer to the Employment Court because they are the only ones that can afford to do it. But under this clause it just creates a whole level of uncertainty that Employment Court precedents actually got rid of. So what we ended up with is a situation that was actually very fair and reasonable. It really was fair and reasonable. It meant that the employer had to consult and there is a whole lot of jurisprudence and a whole lot of precedents around the level of consultation what it meant how it was to be undertaken and basically good faith—natural justice and we all understand natural justice.What that does and I am really concerned about this is that it once again blurs the line. What it does is move the pendulum far too far over to the right when we had settled quite well in the centre. I think a lot of us will agree that maybe 60 years ago the pendulum was too far to the left but a lot of jurisprudence and a lot of really good decisions by Judge Travis for example brought it right back to the centre. So employers knew their exact obligations. They knew their obligations and Mr Attorney-General I hope you are going to stand up because I do not know how you can defend a piece of legislation that is made to repeal one decision that was made in the Employment Court. It really is not a good way to make law.I would like to reiterate that this is not about the workers versus the employees. This is not about employers versus unions. This is not about us versus them. All this is about is a fair go and Part 1 section 4(1B) in clause 4 takes away the ability of the employee to know exactly where they stand. Section 4(1B)(a) as I said is about an identifiable individual other than the affected employee. What is to stop an employer saying to Mrs King: “Mrs King I’m going to make you redundant because of what someone said.”? “Well who said what?”. “I’m sorry I cannot tell you that.”