KEITH LOCKE (Green)
The assumption behind Michael Woodhouse’s speech is that the overwhelming majority of employers are good employers. They have the interests of employees at heart, they will spend a lot money hiring and training them, they will be very reluctant to let them go, and all the rest of it. It is true that good employers do think in those terms, and they also think in terms of having good relations with the workforce and with the collective organisations of the workforce—that is, the unions. But there are also a lot of employers that do not want anyone to be pushing for better conditions, to be a member of the union, or for the union to be active on the job. They think that they can make more money if that is the case. Sometimes that is not a rational calculation and sometimes it is just that they want to be the big boss, but that does exist. The very fact that we have such a low rate of unionisation in New Zealand, particularly in the private sector—and it is much lower than it was during the period of national awards before we had the Employment Contracts Act—is in part testimony to the fact that a lot of employers would rather not have the union on the job. Of course, we have Peter Jackson and Richard Taylor, who are prime examples of this. They are doing everything possible to keep an organised union force off their production of
and the other productions that they have. They have been reasonably successful to date in doing that. That attitude is not unusual amongst employers. If that was not the case, then I ask why we have this provision on union access to workplaces. We have the situation where union access has worked pretty well so far. The unions have walked on and off jobs all over the place. They talk to their members without any great problems. Any good union official is very sensitive to the fact that he or she should not disrupt the work process more than is necessary. There is often somewhat of a disruption of the work process by the very fact that union officials have to talk to workers who are on the job for 8 hours a day, or whatever it is, but that is minimised. Now we are putting in procedures that will seriously disadvantage unions in getting that access in that they can be delayed for up to a couple of days. The procedure that many union officials work on is of going to perhaps eight worksites and of having a bit of flexibility of when they arrive at the next worksite, because they do not know exactly what the issues will be at the worksite they visited at, say, 10 o’clock. It might take them half an hour or 2 hours to work through the problems at that particular worksite. They have to have that flexibility, and they operate on a situation of reasonableness and notification of the employer in terms of access to worksites. But all of that will be thrown up in the air by putting all the power back on to employers and by allowing them to delay union officials for a couple of days. That provision will disadvantage the unions. Other provisions, like the removal of reinstatement as a primary remedy in personal grievances, will push things back against the unions, too. A lot of employers want to get rid of, particularly, the more stroppy, active union officials, so what will they do? They will say that they will sack that union official. It will perhaps cost them a bit of money at the Employment Court, but with reinstatement not being a primary remedy any more, they will have got rid of that union official. They would value that result more than the $5,000 or $10,000 they might have to pay in compensation. That is biasing everything against the unions, too. With regard to the 90-day provision, I think Michael Woodhouse said that job applicants would have to agree to the 90-day provision in the employment agreement. But unemployed workers—and the unemployment rate is running at about 7 percent—would find it hard to get a job, and they will not say: “I will take this job that you have kindly offered me, but you need to cut out the clause that says there is a 90-day trial period.” If they do that, an employer will thank them very much and say that he or she has not quite decided who to hire and will come back to the worker, but the employer will never come back. The 90-day trial is not really a voluntary arrangement, and if that worker shows a bit of a disposition towards the union and perhaps even joins the union, come the 75
day, or 89
day, the employer will just get rid of that worker.
KEITH LOCKE (Green)
I see that Lynne Pillay wished to continue her speech; I apologise to her. But I will continue in the same vein. It seems that it is a very good thing to have a written employment agreement actually constructed and kept by the employer as a reference point. On the one hand, that means there is something to refer back to, in order to see whether the employer is matching the requirements in that agreement. On the other hand, as the previous speaker pointed out, employers’ organisations will construct a standard agreement that contains the 90-day provision without any reason being required for dismissing a person within those 90 days. That agreement will be sent out to every employer, and it will be almost a black mark against them if they do not use it. The employers are very organised in that respect, in making sure that all of the other employers are kept in line. Supposedly, there is a choice in terms of whether people go into the 90-day arrangement. In fact, people will not be able to get a job anywhere else, because all of the contracts will have that 90-day provision in them. So people will have a choice between having a job and not having a job. I agree with Lynne Pillay that there will be all of the euphemisms for “letting people go” instead of sacking them, etc. There are all of those excuses; another one that came up was that a person could be “overqualified”: “You’re a very nice worker, but you’re overqualified. We’re going to let you go and we want to get somebody else.” etc. Those are not real reasons, and they will not be required under the 90-day legislation, but we can see how things are going to operate. The changes are all completely unnecessary because, particularly in the labour market we have now in which there is a level of unemployment, any reasonable employer will not be looking to recruit people for 90 days. They will be recruiting to get the best person on a permanent basis, providing the training from day one, and spending their money on that training. To have that 90-day provision really has nothing to do with the quality of the employees being hired, and it has everything to do with being anti-union, as in the examples given before: sacking people if they show any sign of standing up for their rights, linking up with the union, or whatever. That will be the primary reason that people are sent down the road. The workers who are pro-union and who will be sent down the road are, generally, the better workers. I have found that the more one stands up for other people’s rights, the more one has confidence in one’s own rights and skills. Those people tend to be the better workers, and they will be the ones who are sacked. In my experience it has been the most unionised workplaces that have put out the better product. I used to work at New Zealand Motor Corporation in Pētone producing Honda cars. We had a strong union there, and the quality of the Honda cars was great. My partner worked out at what was then Todd Motors, which then changed to Mitsubishi Motors New Zealand, where the union was much weaker. Quite a lot of people got annoyed with the conditions there, and there was a bit of sabotaging of cars, actually. The quality of the cars coming out was lower, because the union was less strong. So it is actually in the employer’s interest to have a strong union in the workplace, but a lot of employers do not operate that way; they just want to run the business their way. Trevor Mallard gave some examples of that, particularly in small employment situations where the boss was more concerned with keeping control over everything than in actually having a collective workforce that worked well together. To summarise, the existence of this written agreement has its positive sides, but in the hands of Business New Zealand, it will probably lead to a universalisation of this offensive 90-day provision.
KEITH LOCKE (Green)
It is a pleasure to speak on the title and commencement date clauses of the Employment Relations Amendment Bill (No 2). I think the commencement date should be changed. Instead of being 1 April 2011 it should probably be 1 April 1911. I do not know whether we can have retrospective dates like that, but it is appropriate to that period in our history when our employment legislation was very weak and employees were at a serious disadvantage. This bill would fit that period more. In terms of the title, rather than the Employment Relations Amendment Bill (No 2), it might be better to have it as the “Employees’ Submission Amendment Bill” because that is what the bill is about, the submission of employees in the workplace, particularly to their employers. I think that the other clause, the “Principal Act amended” clause, rather than amending the Employment Relations Act 2000, it might be better to amend the Corrections Act because this bill is, in some ways, taking away the freedoms of workers in the workplace. It is relevant to the Corrections Act, because under that Act I think there is now an allowance for home detention. This bill does not actually have home detention, it is sort of work detention. It relates, perhaps, more to the Corrections Act than the Employment Relations Act, which, as has been pointed out, was passed in 2000 to improve industrial relations between employers and employees, to create a fairer relationship, and to allow for fair bargaining between the two parties. The Green Party was supportive both of Trevor Mallard’s amendments to Part 1 and of the prospective Parts 3 and 4. I think if the Government was serious, it would have accepted amendments that allowed for the union to be given access to workplaces as normal, without all this hold-up, where urgent matters are concerned. Certainly, health and safety and sexual harassment are urgent matters, and if someone is dismissed, the union cannot wait for a few days before it comes in to defend them, work out whether or not they should be in the job, negotiate redundancy payments, and all the rest. These are matters that require the urgent attention of union officials, and I think it is a pity that those amendments to Part 1 were not passed.
In respect of the amendment to secret ballots there is a funny contradiction in the Employment Relations Amendment Bill (No 2) in that, on the one hand, there this requirement in Tau Henare’s bill, and the Green Party has opposed it, to provide a secret ballot before any action is taken by unions but, on the other hand, under this different bill—the Employment Relations Amendment Bill (No 2)—the unions cannot even get access to hold their secret ballot, or the employer can sort of stop them, put barriers in their way. The two are in contradiction. The other amendment put forward met with the approval of the Green Party too, and that is the primary remedy of reinstatement should particularly apply to those who are involved in union bargaining, health and safety issues, etc. Otherwise an employer could kick an on-the-job union representative down the road, and that has happened many times in New Zealand’s employment history. I think there was opposition to that interpretation by the National Government side. If the National Government thinks there will not be a picking off of union officials, etc. by disallowing reinstatement as the primary remedy, then it should have supported that amendment. The other points raised in the debate have been very relevant, too, particularly the one relating to access to welfare benefits if someone is dismissed under the 90-day provision.