Employment Relations Amendment Bill (No 2) – Keith Locke, third reading speech



The Green Party will continue to oppose the Employment Relations Amendment Bill (No 2). It is very clearly anti-union legislation. While listening to National Party speakers over some time on this legislation, and the accompanying Holidays Amendment Bill, I have yet to hear any sign that they think unions are good or that they think unions should be promoted. I wish sometimes that National members would say that unions are good and that more people should join them. Instead we have a bill that limits the power of unions, making it more difficult for people to join and to act effectively in a collective manner in their unions. The basic fact of life is that unions are good for workers. If we look at similar industries, we find that the factories or offices that are unionised have better wages and conditions. That is the fundamental thing that happens, and it is a good thing. Sometimes there is a conflict of interest between unions and employers. Some employers are good employers, and some would rather pay the lowest wage rates possible and get that little bit extra for themselves. Some employers think we do not need unions at all and will try to keep them out of the workplace. We saw the Government encouraging one particular set of employers in the film industry to do that. In the case of what is now known as the “Warners Bill”, the Employment Relations (Film Production Work) Amendment Bill, effectively the Employment Relations Act was being written out of conditions for workers in the film industry. In the case of any contracts that will occur, film industry management will now say that all workers are independent contractors. Workers will have to declare that when they sign contracts, and from that point the Employment Relations Act and all their rights as workers in a union sense will no longer apply.

That is the background to this legislation. The 90-day trial period, which is now universalised, will give more power to employers against workers and against members of unions. The Minister Kate Wilkinson, in her first speech, said she spent most of her time on the 90-day trial period, but she did not mention the fundamental element of this trial period, which is that a person can get sacked for no reason, whatsoever. We know that the employer does not have to give any reason, whatsoever. The Minister did not mention whether, for example, in the State Service the Government will be allowing unions to negotiate on their contracts that their members will be excluded from this 90-day provision. That is quite key, and I understand that the Government is doing the very opposite; it is telling chief executives not to allow an exclusion of the 90-day provision in the contracts. So this whole talk that the 90-day provision is going to be voluntary, and any idea that unions can voluntarily exclude themselves from the 90-day provision, is quite wrong. Will Government departments exclude contracts that say a condition for a person to get a job is whether they can sign a contract that does not have a 90-day provision in it, or will a person be told that a condition for getting the job is that he or she must have a 90-day trial period? If that is the case, then it is not voluntary, particularly if Business New Zealand—and I understand it is doing this—is setting up model contracts that include a 90-day provision. People will not have a choice to go to a job with a 90-day provision or without a 90-day provision, particularly in a situation of growing unemployment. People will be forced to have a 90-day trial where they can be dismissed at will without any reason given, whatsoever. The Minister said that the provision does not apply to skilled workers. Why not? I am sure there will be employers who will say they want a 90-day provision in the contract, possibly when they are hiring people from overseas. The employer will say “Well, I haven’t seen these workers yet. I’m hiring them from the Philippines or China—or somewhere—on a work permit. I’ll make sure there is a 90-day provision so they can be sacked if I don’t like them.” But what does that mean for migrants coming in who are shifting themselves or their families to the other side of the world to get a job in New Zealand? They will be a bit scared of taking up jobs in New Zealand because they could be sacked within the first 90 days. They will probably trot off to Australia, or somewhere like that, to the disadvantage of New Zealand in terms of skilled migrants coming here. The bill will reduce labour mobility; there is no question of that. If someone in a job has permanent employment and the right to personal grievance if he or she is sacked, then that person is liable to stay in that job, even if there is a job down the road that is a bit better in terms of skill, and in terms of money. Why risk getting sacked in the first 90 days? The bill will be bad for the New Zealand economy in terms of putting people in the right places, and in terms of the workforce having the proper level of labour mobility. The 90-day provision demoralises people. It is demoralising for people to feel that they have no power in the job in the first 90 days because they can be sacked at will. It is demoralising if people are actually sacked, particularly with no reason given. It is demoralising for people to know that when they go to get another job, after being sacked within the first 90 days for no reason, and the employer asks why they were sacked at the previous job, they will not be able to say why they were sacked. They will say, “Oh, I don’t know. The boss never told me, and under the law he didn’t need to tell me.” There will be problems for many workers getting benefits. If Work and Income decides that even though no reason was explicitly given to a person, somehow from its investigations—or from the employer, or whatever else—it thinks the employer had a case to dismiss the person, that person will have a stand-down period before getting a benefit. There will not be any fairness in the process of Work and Income determining that. Then Work and Income will send that person out to get a job, and will say that a condition for the person to stay on the benefit is that the person at least has to try for a job, and the job has a 90-day trial period. Then it is not voluntary, as the person has to go out and at least apply for that job with a 90-day trial period, otherwise that person will lose the benefit. So it is very bad in many ways. The provision on union access is a provision for mucking unions about so that officials will spend half their time trying to get on to jobs rather than doing the work on the job they should. I think we have found with the tragedy down in Pike River that the best form of industrial relations is when everyone is working together. As I understand it, the Pike River mine is a unionised site, under the New Zealand Amalgamated Engineering, Printing and Manufacturing Union. We have picked up from what is happening down there at the moment that the union, the workers, and the management—everyone—are working together in a very cooperative way. The other lesson of Pike River—and this is no criticism, whatsoever, of anyone—is that whenever there is a tragedy, people think: “Well, let’s maximise health and safety; it is important to always maximise that.” To have strong unions working collectively together, working with the employer, and alerting people to health and safety concerns is always a step forward, and helps to avoid disasters. A confident workforce is always a better workforce. People are proud of their skills rather than being terrified of what might happen to them in terms of their relationship with employers, or 90-day periods, or whatever else. A confident workforce with a strong union also requires reinstatement as the primary remedy in a dismissal hearing because the people who will be sacked and will not be reinstated under this provision will probably be union leaders. That is what will happen. The company will say: “I might have to pay a bit to the Employment Court for sacking this person, but at least I’ve got rid of the union leaders on the job, and perhaps I can get rid of the union altogether.”