Lees-Galloway IainREGULATORY SYSTEMS (WORKPLACE RELATIONS) AMENDMENT BILLIn CommitteePart 1 Employment Relations Act 2000IAIN LEES-GALLOWAY (Labour—Palmerston North): It is a pleasure to speak to Part 1 of the Regulatory Systems (Workplace Relations) Amendment Bill which deals with amendments to the Employment Relations Act. There are two broad aspects to the changes that are made by this part to the Employment Relations Act. The first is the change that was included in the original draft of the bill the original version of the bill that we considered at the first reading and the second are the changes that were made at the Transport and Industrial Relations Committee which were further changes that were identified by officials and recommended to the select committee.I want to deal firstly with the original change and that is the change contained in clause 4 of this bill which amends section 142W of the Employment Relations Act—and this relates to the involvement in breaches. I will come to the substance the real purpose of this amendment in a moment but first I want to commend the drafting of this clause which refers to companies partnerships limited partnerships or sole traders as entities rather than as persons. This is because we are dealing with people occupying a position within an entity and we get ourselves very tied up in knots when we start talking about people occupying a position within a person.I could state it no better than the actual version of this section in the original Act which says in subsection (2): However if the person in breach is a company partnership limited partnership or sole trader a person holding a position in relation to the person in breach may be treated as a person involved in a breach only if the person is an officer of the person in breach." which is bloody confusing—I think is the technical term for that. So it is fantastic to see that in this new section 142W in clause 4 we now talk about entities. So we can talk about a company partnership or limited partnership or sole trader being an entity and a person being an actual human being—a person who holds a role within that entity. I really do commend that drafting and I hope we see that nomenclature used in further legislation in the future.The actual change—the reason for the change offered in clause 4—is to do with an inadvertent restriction in the current drafting as is often the case with these regulatory systems amendment bills making changes to tidy up inadvertent consequences of the current drafting. This has to do with the scope in terms of whom the policy relating to breaches actually applies to. The original policy was intended to include a director of the employer or any of its employees as well as any other third party unrelated to the employer such as an accountancy or legal firm under contract with the employer. Subsections (2) and (3) then impose certain restrictions on the applicability of subsection (1). The policy intent was to ensure that such actions targeted the decision makers the offices of the employer and exclude the administrative staff who have little or no influence over the decisions that are made. So the whole point of the original legislation was to ensure that the people who were genuinely responsible for decisions made in the company would be those who could be held responsible for breaches of the Act. The current drafting is potentially a little bit too broad and potentially includes people who have no real decision-making power—who have no significant decision-making authority—in an organisation or entity and could potentially be drawn in and could be found to be in breach of the Act although that was not the original policy intent.So this is a good piece of tidying up that ensures that the legislation operates effectively and appropriately. The other change included in Part 1 is the change that is now recommended in new clauses 3A and 3B which were not included in the original draft of the legislation but were brought to the attention of the select committee by officials. This refers to cross-referencing within the Employment Relations Act. It is actually a case where cross-referencing potentially has a real impact on people who are seeking redress under the Employment Relations Act.So as a result of changes made by the Employment Standards Legislation Bill—which was the bill that dealt with amongst other things zero hour contracts—there are now three additional grounds on which an employee may pursue a personal grievance despite being under a 90-day trial period. Those three grounds are that the employee has been treated adversely for refusing to perform work in the absence of a valid availability provision which is relating to the changes we made to eliminate zero-hour contracts; the employee's employer "has failed to pay [the employee] the compensation to which they are entitled when a shift has been cancelled"; and the employee's employer "has treated [the employee] adversely for a prohibited health and safety reason or has contravened section 92 of the Health and Safety at Work Act 2015.Those additional grounds for taking a personal grievance despite being under a 90-day trial period are contained in section 103(1)(i) through to 103(1)(j) of the Employment Relations Act. However current section 67B(3) which allows employees to take a personal grievance despite being on a trial period relates only to section 103(1)(b) through (h) so it does not include paragraphs (i) through to (j). There is potential there—it is small but there is potential—for employees to have their ability to take a personal grievance under those grounds diminished as a result of that incorrect cross-referencing between those two different sections of the Act.Because there was the potential for those to be diminished we had a conversation at the select committee about whether this provision clauses 3A and 3B in Part 1 should in fact be applied retrospectively. However officials assured us that because employees have always had the ability to take a personal grievance on the grounds of unjustified dismissal—which I think is contained in section 103(1)(a) of the Act—should an employee wish to take a personal grievance under the three additional grounds essentially everything is covered by the ability to take a personal grievance for unjustified dismissal.Just to put it on record once again in the unlikely event that the judiciary the Employment Relations Authority finds itself dealing with a case where an employee has taken a personal grievance for one of those three grounds whilst on a trial period let it be absolutely clear that it is Parliament's intention that from the moment those three grounds were added to section 103(1)—from that moment forward—an employee would be able to take a personal grievance if they were dismissed during a 90-day trial period for any one of those three reasons despite the fact that we are not applying clauses 3A and 3B retrospectively. With those two changes—the original changes to section 142W associated with the involvement in breaches and these changes ensuring that workers get slightly better rights under 90-day trial periods than they do ordinarily—we are supportive of these changes and supportive of Part 1 of this bill."