Employment Relations Amendment Bill

DARIEN FENTON (Labour) Link to this

This bill is not about preventing contracting-out or undermining competitive tendering. It is about ensuring that workers have the right to transfer, while, at the same time, the new employer has the right to make business decisions in relation to the workforce once the transfer is complete. So let us not get into overstating or hyping up what is a simple protection that takes New Zealand workers only one small, long-overdue step towards the kinds of protections workers overseas have had for many years.

I emphasise again that this bill is about fixing a problem that occurred because of the Crest Commercial Cleaning decision. It is about ensuring that the original intent of the Government and this Parliament is met. If we do nothing, the only workers in New Zealand who are left without any kind of protection will be those workers whom the original Act specifically sought to protect—that is, cleaners, food service workers, caretakers, laundry workers, and so on who have already been contracted out.

The bill does not encourage poor performance and acceptance of incompetence, as some have claimed. Those are management issues that can be dealt with at any stage of a restructuring process, either before or after. The bill does not give jobs for life. It provides protections for workers only at the point of transfer. After that, the employer is free to carry out normal business operations subject, of course, to existing employment law.

Let us be honest, even before the enactment of the Employment Relations Amendment Act (No 2) 2004, many employers had carried out the requirements of the law in relation to transfer, and even with the Crest Commercial Cleaning decision, those employers had made a decision to continue to apply the requirements as intended by Part 6A of the Employment Relations Act. Has the world fallen apart? It does not look like it.

Cleaning, catering, orderly, and laundry workers have waited a long time for this protection in legislation. Unfortunately, they have had to wait a little bit longer because of the Crest Commercial Cleaning decision. This is a complex area of law, and I know that Opposition members do not understand it, but the workers who are affected by it do. They have had to live and breathe the unfairness of this situation for years and years. I look forward to sharing experiences at the select committee as to how this legislation can work positively for both business and employers, and to the protections that were originally envisaged by this Government being enacted speedily.

PAULA BENNETT (National) Link to this

First of all I would like to address the vulnerable workers. The premise I heard last week from members on the other side of the House was that National did not support those workers. What a myth that is. No one supports people in work more than the National Party, and no one actually acknowledges the job workers are doing more than the National Party. In fact, the National Party would like to see more money being put back into workers’ pockets. In many respects I personally feel that the people to whom the bill refers—our cleaners, our food service workers, etc.—are doing perhaps the hardest job in our community and in our society. Those people deserve to be respected for that, and they certainly deserve to have more money in their pockets.

I also want to talk a little about skills shortages, because if we listened to the Government we would be under the impression that skills shortages are about the shortage of engineers, machine workers, and those sorts of people, included in the Immigration Service list. As a matter of fact, we have a skills shortage across the board. We have as much of a skills shortage within the area of cleaners as we do anywhere else. There is a shortage in that area; as a matter of fact, it is not difficult to get a job in that area—and rightly so. A good cleaner will get a job in just about any town in New Zealand, because he or she is available. It is as simple as that. The Employment Relations Amendment Bill is not necessary.

I want to pick up on what Darien Fenton was saying, which was that cleaners who do an unsatisfactory job will not be taken on, because that is a performance issue. In the Dunedin Kindergarten Association situation the contract had finished. It is not that the contract was being rolled over. The contract had been terminated. The association then looked around, because it felt that the job that had been done had not been done to a satisfactory level. In fact, in the opinion of many parents and teachers the kindergartens were unsanitary and not suitable for children. So it is nuts to think that the very people who were not cleaning to a satisfactory level would then be passed on to the next cleaning company. Is this what we really want, as parents, for our kids—that we no longer have the right to say that an unsatisfactory job is being done and we do not wish to continue with that company, and to employ another one, because if we do we will find that we are working with the same people? It just does not make sense.

If we are really serious about supporting our most vulnerable people, or about supporting those who really need to be given a go and protected, the best thing we can do with them under employment relations in this country right now is to offer a 90-day probation period. The reality is that people want to prove themselves. They want to stand up, they want to be counted, and they want to be given a go. A 90-day trial period will work best for the most vulnerable in our society. It will work for the immigrants who are new to New Zealand, and are saying: “Let me stand up and prove my worth. Give me a foot in the door. Let me show you what I can do. Let me prove that my experience from overseas will actually stand up against anyone else’s. Let me in that door.” The 90-day period will equally stand up for people who have a criminal record, or who perhaps have not had the most favourable employment history, up to that date. Those people will be able to stand up and say “Give me a go.”, and a 90-day trial period is the way to do so.

From my experience within the employment sector, more employees bowed out of the employment arrangement in the first 3 months than were asked to leave or were performance-managed. It actually works to the employees’ favour that they too can trial the employment arrangement and give it a go. We do not know the fit. We do not always know whether a company will work for us. By having a 90-day trial period we get to step in and give it a go, and we can walk away with no penalties and no stigma involved. If we are serious about protecting those workers who need a go in our society, then a 90-day trial period is seriously the way to do it.

I want to talk a bit about a couple of scenarios that could happen under the bill. They are ones that cause me immense concern. Let us presume I own a relatively small business with a couple of cleaning contracts. One of them I lose and on the other one I am just making ends meet—I am struggling. I am struggling to keep my business alive, and I am struggling to continue to employ the people who are working for me. I have immense respect for the people who are working for me. I am giving them every opportunity and I am paying them above the minimum wage—I am doing everything I can. But I am barely holding on. I see a contract come up. I think I am going to get this contract, and I am going to compete for it to the nth, because I want to keep these employees going, and I wish to have a successful company. I cut my margins. I do everything I can to get that contract. I put in a very competitive tender and, lo and behold, I win. That is a win-win situation. I get to keep the employees I have had for such a long time—well, no, actually I do not get to keep those employees. I will have to put them off, because I have to take the other employees from the company that lost the tender. So I am going to have to make redundant those guys who are working for me and whom I have had a long-term, loyal arrangement with, because I cannot keep on both them and the new employees that, under this amendment bill, I would have to keep. So it is goodbye to those employees, because I would have to make them redundant at the end of the day. They are then without a job, but I have taken on others who have come from the previous contract.

Let us also think about a small to medium sized business that perhaps is not quite as ethical or astute, and is not running its business quite as smartly.

Hon MITA RIRINUI (Minister of State) Link to this

I move, That the Employment Relations Amendment Bill be referred to the Transport and Industrial Relations Committee. referred to Transport and Industrial Relations Committee.