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Employment Relations (Breaks and Infant Feeding) Amendment Bill

In Committee

Wednesday 3 September 2008 (advance copy) Hansard source (external site)

(continued on Wednesday, 3 September 2008)

Debate resumed.

Part 1 Commentary (continued)

MoroneySUE MORONEY (Labour) Link to this

Last night when we were debating Part 1 of this bill, the National Party was asking what these issues had in common. I just want to spell it out, because this debate is about the purpose of this bill. National members asked what having meal breaks and rest periods, having the right to breastfeed at work, and having the right to take a personal grievance against one’s employer if he or she tries to disadvantage one for joining KiwiSaver, have in common. Well, I will tell National members what those things have in common: it is all about fairness at work. It is all about having fairness at work, and it is all about ensuring that when there are mean-spirited employers who will deny employees their proper meal breaks, or will try to disadvantage them because they dare to save for their future or dare to save for their retirement, all these things are about fairness at work. The Labour-led Government will not stand by a minute longer to allow that unfairness to continue in the workplace, and that is what it is about. So the National Party needs to understand that workers do have rights at work, that it is about fairness, and that—

BennettPaula Bennett Link to this

Send it back to the select committee.

MoroneySUE MORONEY Link to this

The member says to send it back to the select committee. There was a very full select committee process over KiwiSaver. The employers understood the rules—they knew exactly what was being asked for there. And the National Party voted against KiwiSaver as well.

HobbsThe CHAIRPERSON (Hon Marian Hobbs) Link to this

Before I call Dr Wayne Mapp, I will ask whether we could have less barrage. Both sides know well, I say to Miss Bennett—less barrage.

MappDr WAYNE MAPP (National—North Shore) Link to this

I should correct an impression that you gave—that this is a hard-working Government that would work through to midnight. In fact, Government members were so lazy that they actually lifted the Committee at 10 o’clock—

HobbsThe CHAIRPERSON (Hon Marian Hobbs) Link to this

Apologies, and you know very well that we were not in urgency and that we finished at 10 o’clock as per normal, and as per the rules of the House. No game-playing. On you go.

MappDr WAYNE MAPP Link to this

We are debating, as is quite plain, not just the purpose provision but also this Supplementary Order Paper. I know that the Government thinks it has done a good thing for workers, but in fact it totally misunderstands the situation. The Minister in the chair, the Hon Trevor Mallard, has been in continuous conflict with the Employers and Manufacturers Association (Northern) Inc.—not that it is a surprising situation for this particular Minister to be in continuous conflict with whomever he is talking to—and Government members have always misunderstood the point that the Employers and Manufacturers Association (Northern) was making. It is surely an issue of choice whether someone joins the KiwiSaver programme, and the whole point of the Employers and Manufacturers Association’s concern was that it is the total remuneration that ought to be looked at. People should be able to say: “Well, I’m going to be in KiwiSaver, and I will get my remuneration through that.”, or “I’m not in KiwiSaver, and I don’t want to be disadvantaged against those people who are in KiwiSaver.” So, in that instance, some people will simply want to have the cash in hand. That is particularly true of lower-paid workers.

Certainly, there are a significant number of workers in KiwiSaver—I understand that—but I would suggest to members that the ratio of lower-income workers is not nearly as high as middle-income workers. The truth is that if one has more money it is usually easier to save, and those are the groups that are choosing to join KiwiSaver. Actually, I might add that the 700,000 includes a very large number of children who were joined up by their parents, who are there to get the $1,000 without having to make any further contributions. Often the Government tries to pretend that that figure of 700,000 represents people who are in the workforce. Well, that is actually not the case anyway—many of them are children.

I suggest to the member who spoke before, Sue Moroney, that, in fact, lower-paid people are not joining KiwiSaver at nearly the same frequency as middle and higher income earners. So that is why the Employers and Manufacturers Association’s view on KiwiSaver is the correct view, because it is all about people making choices. For lower-income people, that is a particularly important choice they need to be able to make, for many of them actually need the cash in their pockets—not put into a savings scheme. Paying the petrol bills, paying the food bills, and paying the interest or rent is rather more significant than saving for the future. Indeed, many of those people will simply see New Zealand superannuation, supported by the superannuation scheme, as probably their protection.

I want also to correct another misapprehension that the Government is labouring under. Sue Moroney explicitly said she did not expect National to support this bill at its third reading. I want to make it very clear to the Government, and, more important, to New Zealanders, that we are supporting the bill its at third reading—that is not news. Whilst we are opposed to the insertion of the Supplementary Order Paper put in this way, we do not see that as such a large issue that would then cancel our vote altogether for the broader principle around fairness in the workplace in relation to meal breaks, and mothers who wish to breastfeed at work. We do understand the importance of those claims, and therefore wish to support the bill. That is indeed why the bill has gone through the parliamentary process relatively quickly. It was introduced only earlier this year, and it is now going right through into law at this point in time. And that does actually represent a level of consensus. I know it pains the Government to find out that we are supporting it. I guess the Government would prefer us to vote against it, but, in fact, we are supporting it.

AuchinvoleCHRIS AUCHINVOLE (National) Link to this

I recall the way this Employment Relations (Breaks and Infant Feeding) Amendment Billwas introduced to the public once it had been decided on. I was actually down at Blackball on the West Coast, and indeed, Madam Chair, you may have been there yourself at the time. You too will possibly remember the occasion of the 90th anniversary celebration of Paddy Webb and others’ activity in obtaining half-an-hour’s crib time for coalminers. This was an interesting occasion because there were historians down there who painted an interesting picture of the whole sequence.

Let us address Part 1 of the bill. It refers largely to breastfeeding opportunities for mothers and to rest breaks. It is a perfectly sensible bill and one that National is supporting. It was introduced, as I say, at Blackball. Maryan Street introduced it to the assembled gathering that was down there to note the 1908 strike, which led, eventually, to the crib break of half-an-hour. There were quite a few interesting aspects of that. There were some historians there, and there was also a High Court judge there, who corrected some of the myths and the legends that have crept into the memory of the litigation. An interesting point is that there had always been a half-hour crib break, which was reduced to 15 minutes at the request of the miners so they could get out of the mine a little earlier. So it was not quite as plain as it first looked. I have to say that this bill is not quite as plain as it first appeared, because here we go again. An innocent and useful little bill has been treated as a sort of miniature Trojan horse.

The bill has been loaded, in the words of my colleague Kate Wilkinson, with a “sneaky little Supplementary Order Paper”, as if by sleight of hand to include an amendment to cover disadvantages to employees signed up to KiwiSaver as grounds for personal grievance. I wonder whether this is really in the scope of the bill. I do not remember it being discussed. It certainly was not mentioned by Maryan Street down in the workingmen’s club in Blackball. She said in her splendid manner that she had received advice from the Hon Trevor Mallard that we had these new advantages for working people—breastfeeding breaks, meal breaks, and rest breaks. She did not say: “Oh, and by the way, there’s going to be another little addition that will refer to personal grievance associated with KiwiSaver.”

How long has this been part of an intended but undisclosed agenda? I do not say it is a secret agenda because it is out in the open now, but there was certainly very little advice when this bill was put forward that this provision around KiwiSaver would be part of it. I have to wonder, as a novice in the House, what other Supplementary Order Papers disguised as something else we will see slipped into bills as part of an intended but undisclosed agenda during this period of urgency. I am astonished that this is the way it is done. Is this really the ethical standard that Labour is now showing towards the end of this term? Is this Mr Mallard’s ethical standard suddenly revealed? What else will be rushed in during urgency? Ah, the Minister smiles! That indicates to me—being a trader and a bit of a negotiator—that what we have seen is just the start. Are we going to hear, perhaps, something about the situation of Timberlands down on the West Coast, where West Coast millers and West Coast communities are calling for a response from Mr Mallard and other shareholding Ministers? There seems to be silence on the issue. Those on the West Coast seem to think they have not been treated fairly.

HobbsThe CHAIRPERSON (Hon Marian Hobbs) Link to this

The bill, sir, the bill.

AuchinvoleCHRIS AUCHINVOLE Link to this

Indeed. Coming back to the bill, I say that this again is a situation where something has been promised, something has been proposed, something has been discussed, and now it is going to be changed. The emphasis has changed completely, away from the original intention of the bill. People are beginning to feel “We was robbed, we’ve been cheated.” I think Paddy Webb, whom I have respect for, would have been ashamed.

WilkinsonKATE WILKINSON (National) Link to this

I raise a point of order, Madam Chairperson. I seek a ruling as to the relevance of the amendment to the initial question, pursuant to Standing Order 119. I seek a ruling as to the relevance of KiwiSaver to the issue of meal breaks, as it is outside the Standing Orders and, therefore, out of order.

MallardHon TREVOR MALLARD (Minister of Labour) Link to this

The member is absolutely right and that is why the House, before it went into Committee, unanimously passed a motion to bring the amendment within the scope.

HobbsThe CHAIRPERSON (Hon Marian Hobbs) Link to this

That is actually correct, Ms Wilkinson. There was a—

MallardHon Trevor Mallard Link to this

—motion in the name of Dr Cullen.

HobbsThe CHAIRPERSON (Hon Marian Hobbs) Link to this

Yes. A motion—and I have in front of me now—was moved at the beginning. It said: “I move that it be an instruction to the Committee of the whole House that it have the power to consider and, if it thinks fit, adopt the amendments set out on Supplementary Order Paper 229.” That was passed by the House, and therefore it has been agreed by the House that Supplementary Order Paper 229 is under consideration as part of this bill.

TremainCHRIS TREMAIN (Junior Whip—National) Link to this

I raise a point of order, Madam Chairperson.

HobbsThe CHAIRPERSON (Hon Marian Hobbs) Link to this

Is it a new matter?

TremainCHRIS TREMAIN Link to this

I want to clarify when, specifically, that was moved.

MallardHon TREVOR MALLARD (Minister of Labour) Link to this

It was moved immediately after the urgency motion; as soon as this bill was called and before we went into Committee. The member’s party supported it.

AuchinvoleCHRIS AUCHINVOLE (National) Link to this

Just to help me with the technicalities, does that mean, then, that without that clause this particular part would not have been within the scope of the bill?

HobbsThe CHAIRPERSON (Hon Marian Hobbs) Link to this

Let me take the member through it very slowly. The House is master of its own destiny. In this case, a motion was put to the House, while the Speaker was in the chair, which said we should consider this Supplementary Order Paper 229 in conjunction with the bill. The House agreed to that. That is done. Otherwise, it may not have been—but the House agreed to that. I will take no further points on that.

BennettDAVID BENNETT (National—Hamilton East) Link to this

We have just seen a prime example of what the Labour Government has been doing in the last couple of weeks. It has been doing sneaky little tricks to pass through things that it knows it cannot pass through under the conscience of the public gaze.

MallardHon Trevor Mallard Link to this

I raise a point of order, Madam Chairperson. The member is now referring to a ruling that you have given and to a motion that has been agreed to by the House, as was made absolutely clear. This was not sneaky; this was something that was agreed to unanimously. The member’s whips voted for it.

BennettDAVID BENNETT Link to this

Madam Chair—

HobbsThe CHAIRPERSON (Hon Marian Hobbs) Link to this

You are not speaking to the point of order?

BennettDAVID BENNETT Link to this

No, it is the speech.

HobbsThe CHAIRPERSON (Hon Marian Hobbs) Link to this

I will rule on the point of order. Can we just settle down on the issue. Members may make points of order about it, but they cannot say that the House has been sneaky. The House agreed to this.

BennettDAVID BENNETT Link to this

I never implied that the House was sneaky; I just implied that Labour was sneaky. There is a subtle difference there.

The Employment Relations (Breaks and Infant Feeding) Amendment Bill is an attempt by the Labour Government to put through a couple of pieces of its policy in a bill, under the guise of something that, politically, most members of the public want to see happen. The infant feeding portion of the bill is something that is not really a debatable issue. Most members of the public perceive the need for that and for some regulation in that area.

The meal breaks portion of the bill is not such a public issue and has not required such attention. It was quite obvious in the Transport and Industrial Relations Committee that this idea was not thought through. The meal breaks component of the bill could have taken away workers’ rights. There was the potential that many workers may have engaged in contracts that gave them greater meal breaks than the mandatory ones in this bill. The bill had to be amended at the select committee once the National Party members brought it to the Government members’ attention that the bill they put forward would hurt workers. They were putting forward legislation that would take rights off workers. Can members believe that? Only the National Party members of the select committee brought that up, and it was only the National members’ good conscience at the select committee that enabled workers to retain the rights that they got in their individual agreements, rather than get Labour’s quick-fix solutions to these idealistic programmes that did not take into account the reality of contractual arrangements between employees and employers.

Today and yesterday we have been aghast at seeing that the Minister has included a portion in this bill in respect of the KiwiSaver legislation. There is a problem in respect of the KiwiSaver side of it. That programme was another piece of legislation the Government brought forward that it did not think about. It did not follow due consultation, and it did not look at what the options would be in the marketplace. One of the problems with the KiwiSaver legislation has been that employers may be able to not give a wage rise in the year following the implementation of the legislation, and to say that the KiwiSaver contribution is the pay rise. That is something that a lot of employees would naturally feel quite aggrieved to see happen. This is why that change has been brought about to the legislation—so that elements of the law in which employers could potentially take advantage of employees are able to be rectified.

But this is not the appropriate place to do that. It is not the appropriate place to put in a sneaky amendment to legislation that would mean that this part of the KiwiSaver regime had been fixed up through a Supplementary Order Paper in respect of the Employment Relations (Breaks and Infant Feeding) Amendment Bill. If the Minister had liked to do the process properly, he should have put forward an amendment to the KiwiSaver legislation and put it through the appropriate political processes, not use this method of trying to get the fix-up measures done in time for an election in a few months’ time.

Those fix-up measures are something that the National Party is now seeing and that the public of New Zealand will see over the next couple weeks. We are seeing this Government attempt, in any little way it can, to change legislation to its advantage in its last dying days in office. We will see it put up a lot more Supplementary Order Papers and amendments. The National Party will be vigilant in looking at those, because it now sees the agenda of this political party in its dying days in Government. Its agenda is to change the focus of legislation.

BrownPETER BROWN (Deputy Leader—NZ First) Link to this

If the member over there is convinced that Supplementary Order Paper 229 put up by the Minister of Labour is sneaky, why the dickens did he agree to it going before the House? The Minister sought leave yesterday evening to extend the scope of the bill to embrace his Supplementary Order Paper. Why the dickens did the National Party agree to it, if it feels so strongly—

BrownPETER BROWN Link to this

He moved a motion. The whole thing was done correctly, as per the Standing Orders, and National members sit over there and say “Oh, it’s sneaky.” It is not sneaky if it is up front.

New Zealand First supports this bill. Something else the member might think is sneaky—but I know that Kate Wilkinson does not—is the amendment in my name, which adjusts the main part of the bill. It amends the part that deals with rest breaks in particular. It simply proposes adding subsection (2) to section 69ZH, inserted by clause 5, and states: “(2) Despite subsection (1), where an employee is a person who is required to take a rest break by, or under, another enactment, the requirement for a rest break defined by, or under, the other enactment applies instead of the provisions or entitlements for rest breaks or meal breaks provided under this Part.” The amendment comes about because, basically, the legislation that the Transport and Industrial Relations Committee—of which I was a member—handed back to the House did not correctly cover the rest breaks scenario in respect of the transport industry. We thought it did, but it did not—hence the amendment in my name, which I tabled this very morning.

Supplementary Order Paper 229 in the name of the Hon Trevor Mallard deals with KiwiSaver. Let me make it quite clear: as far as New Zealand First is concerned, we believe in compulsory savings. We always have; we have long been on record as saying that loud and clear. This measure is not compulsory, but it is a step towards it. The Supplementary Order Paper is needed to ensure that there is the maximum incentive for individuals to join KiwiSaver. That is how I see it. It encourages people to join KiwiSaver. We understand that some employers are caught in a trap. Understandably, they will be given time to rectify the situation, but, in essence, KiwiSaver is an essential vehicle in this country to encourage people to save. We hope that, in the fullness of time—and I clarify for members that I am talking about years rather than days, and certainly not hours—legislation will come into being that makes it compulsory for people in this country to save. It is likely there would have to be exceptions for people on low pay who cannot afford to save, but, by and large, we should do everything we can to encourage people in this country to save, and we should eventually make it compulsory for them to do so. Australia introduced such legislation years and years ago, and it has over a trillion dollars in its superannuation account that it invests here, there, and everywhere. It is about time New Zealand stepped up to the plate. New Zealand First has advocated that for a long, long time.

Supplementary Order Paper 229 improves the legislation by giving more incentive for people to save for their retirement and whatever else. So New Zealand First will support this provision. We would have preferred the process to be a little different—a little more transparent, should I say—but we need this measure here and now. That is how New Zealand First sees it. So we will support it.

In essence, this bill is not contentious. It does the right thing for New Zealanders in terms of breastfeeding and breaks—I hesitated just then, because I was going to say “smoko breaks”, but they are not allowed now, are they—and it addresses the KiwiSaver concerns. New Zealand First supports this bill.

WilkinsonKATE WILKINSON (National) Link to this

I am pleased to take another call on the Employment Relations (Breaks and Infant Feeding) Amendment Bill. The comments of Mr Brown were interesting. He said that the bill was not contentious, and in a sense he was right. The bill was not contentious, but it certainly is now in relation to KiwiSaver. I still think that the Supplementary Order Paper in relation to KiwiSaver is sneaky, and I want to address that point for a moment.

National will be opposing the KiwiSaver amendment to the bill. We will be voting for the bill because we do believe in fairness in the workplace, and we do believe that workers are entitled to meal breaks and rest breaks. We think it is good employment practice also to provide breastfeeding facilities and breaks where reasonable and practicable. National does believe in fairness in the workplace.

Employers should be able to treat employees fairly regardless of their private and personal savings decisions. Why should it be unlawful to offer employees different salary packages because they are or are not members of KiwiSaver? Why should one employee be treated less favourably than another merely because that employee has made a different private savings decision? It is a ridiculous approach for introducing important legislation to the House.

The original bill has gone through a proper consultation process. Interested parties have had a chance to work through the issues it has raised. It has come out of the Transport and Industrial Relations Committee with amendments, and now we have this last minute Supplementary Order Paper that gives the general public absolutely no opportunity to consider this change to the KiwiSaver scheme or to make submissions on it. This KiwiSaver amendment is actually another case of bad faith from this Government. This Government touts good faith all the time, yet this is a perfect example of bad faith. The Government specifically allowed for employers to include employee KiwiSaver contributions as part of its total remuneration in the original KiwiSaver. Now it is reversing its position.

This amendment will introduce complex and costly uncertainties into the planning of employers. They cannot be sure how much their wage bill is going to be in any given year, and leaving well alone would at least allow some certainty to employers who, in general, have made a good fist of the introduction of KiwiSaver. Their good faith should be reciprocated.

It is worth noting that it is actually unlawful now anyway for an employer to do what the Minister alleges—that is, to deduct the employer contribution from employees without first giving them a pay increase of at least that amount. It is unlawful now. Why do we need this amendment? Currently section 101B of the KiwiSaver Act makes it quite clear that after 13 December 2007 the question of whether compulsory employer contributions are in addition to current remuneration or can be offset in part against pay rises is subject to mutual agreement between employers and employees. Good faith is a requirement. This Government has exhibited bad faith.

That provision was specifically inserted at the time by Government members on the Finance and Expenditure Committee. At the time Michael Cullen said: “The Government expects that the phase-in of compulsory matching employer contributions will be taken into account in wage and salary bargaining.” That is what he said. The Government was therefore quite comfortable that there would be trade offs between pay rises and KiwiSaver contributions, and now, without consultation, without allowing the submission process, and without allowing the select process, the Government has U-turned and reversed its position.

This Government claims that this move will genuinely benefit people who are in the KiwiSaver scheme, but if one looks at it the other way, one sees that it will harm people who are not in KiwiSaver. People who can afford to save will benefit. People who cannot afford to save and enter into the KiwiSaver scheme will not be able to benefit.

Employment laws should be based on what is fair. There should be a balance of what is fair in the circumstances to both employees and employers. Employment laws need to help both employers and employees control their own destinies as far as possible. This Supplementary Order Paper does not do that, and, as the Hon Peter Dunne has aptly stated, the irony of this amendment is that it will disadvantage lower-paid workers and elderly workers—exactly the people whom Labour claims to represent. National will be opposing this Supplementary Order Paper, but we reiterate that we are voting in favour of the fairness of the meal breaks portion of the bill.

BennettPAULA BENNETT (National) Link to this

Thank you for the opportunity to speak in the Committee on the Employment Relations (Breaks and Infant Feeding) Amendment Bill. I will start off by talking about the importance of breastfeeding by our young mums—and our not-so-young mums, as it happens to be in society a bit these days—and perhaps talk about how that actually works in the workplace. Although I am not a big fan of over-regulation, and certainly find parts of this bill a little unnecessary, if nothing else it has brought the issue a bit more to the fore. People are speaking a bit more about what that relationship means when women have a baby and then go back to work, and how they juggle working, the care of the child, breastfeeding, and everything else, so how could we in the National Party not stand up and support that as being a good thing at the end of the day?

When it comes to meal breaks I do not think I am alone in being relatively appalled at some of the stories that we heard, such as those about people who perhaps did not get breaks, had feelings of disadvantage, and did not feel like they could stand up and have their voices heard on the issue. So to say that I thought this legislation was necessary would be utterly wrong, but to say that if it has to be passed and this is the way that this Government thinks all problems can be solved—if it moves, then legislate and regulate—then we actually can stand up and support it.

This morning I will talk a bit about process. I do not think that anyone out there would disagree that if it were a National Government that was slipping a Supplementary Order Paper through like this one is being slipped through—at the last minute, when the public had not had the opportunity to address it—and it was being introduced after the select committee process, there would be an uproar from the other side of the Chamber. I can tell members that the uproar is happening from this side. We say that people deserve transparency on the issue. People deserve an opportunity to have a say on this Supplementary Order Paper, because it makes a fundamental difference to the bill and therefore makes a fundamental difference to their workplaces. People deserve the opportunity to make sure there is transparency on this issue and they deserve an opportunity to be heard. This Clark-Peters Government is not giving them that opportunity, and it is stepping aside and thinking it can slip something through under urgency, at the last minute. That is appalling for process. It is bad lawmaking and bad for process to slip in a Supplementary Order Paper at the last minute that contains an amendment that makes a fundamental difference. That is wrong, and people have a right to be heard. This Clark-Peters Government is a Government that supposedly stands up for democracy and believes that that should actually be happening. This process is obviously not open democracy.

CunliffeHon David Cunliffe Link to this

Tell us about open democracy, National Party—what do you stand for? What are your policies?

BennettPAULA BENNETT Link to this

Mr Cunliffe wishes to speak about open democracy, and let us do that. Let us talk about what this bill actually means for employers when it comes to the KiwiSaver scheme and how it can happen. If this was so important that it needed to go through, I ask the Minister in the chair, the Hon Trevor Mallard, why it was not put through at the beginning of the process and why it is being snuck through under urgency at the end of the process. I think that is a question that the Minister should stand up and be counted on—that he should put on record. Why was this Supplementary Order Paper not presented months ago when we were dealing with the 17th or 18th amendment to this legislation because it was rushed through so appallingly in the beginning? Why are we still rushing amendments through, and why is the public not having a say on something that is of importance to them in their workplaces and in their workplace relationships? While this Clark-Peters Government rails on about how important process is, how important open democracy is, and how important it is to be open, we are seeing a classic example of something being snuck through in urgency, without the substance to go with it.

Throughout the Committee stage on this bill we certainly heard people talking about breastfeeding and how important it is. I think it is, for a small number of people who are still breastfeeding and who wish to have that in the workplace, but we heard from employers that they saw that as being important as well, and that they felt it was something they could accommodate relatively easily, although it will differ from workplace to workplace as to how they actually do it.

We heard about meal and rest breaks. In fact, we heard that it is happening across the board, and it is not such an issue. As far as this legislation is concerned, I know that my colleagues on the select committee certainly spent a lot of time trying to make sure there was that bit of flexibility. The flexibility needed for those rest and meal breaks is as much for the advantage of the employee as it might be for the employer. We heard many instances of when employees wish to take a 10-minute break and attach that other 30 minutes at the end of the day so they can go home early to their children. They were looking at that sort of flexibility in their working arrangements. I only hope that this move to legislate will not deter some of those flexible arrangements that happen for employees and employers at the moment. Thank you, Madam Chair.

The question was put that the amendments set out on Supplementary Order Paper 229 in the name of the Hon Trevor Mallard to Part 1 be agreed to.

A party vote was called for on the question,

That the amendments be agreed to.

Ayes 67

Noes 50

Amendments agreed to.

Part 1 as amended agreed to.

Part 2 Amendments to principal Act

HobbsThe CHAIRPERSON (Hon Marian Hobbs) Link to this

This debate is on clauses 5 and 6. It also includes an amendment put forward by Peter Brown and the Minister’s amendments on Supplementary Order Paper 229.

WilkinsonKATE WILKINSON (National) Link to this

Again, I am delighted to stand to take a call on Part 2 of the Employment Relations (Breaks and Infant Feeding) Amendment Bill. As we have been throughout this process, National is supportive of giving meal breaks and rest breaks to workers, and National is supportive of giving breastfeeding facilities and breaks in the workplace where reasonable and practicable. I have to say that it is not without some concern, of course, because the prescriptive nature of the bill does add compliance costs to businesses.

In terms of the provision in relation to breaks, the issue that was raised at the select committee was not the duration of the meal breaks and rest breaks or the provision of the meal breaks and rest breaks; it was the prescriptive nature of the timing of those meal breaks and rest breaks. Although one of the union submitters attempted to suggest that the old awards were far more prescriptive and that this provision was far less prescriptive, that was actually proved to be false when we pointed out that the old tearooms award specifically stated that breaks were to be taken “at a time convenient to the employer”. “At a time convenient to the employer” is not the same as the wording in section 69ZE(1AA), in new Part 6D—in clause 5 of the bill—that has been agreed to by the select committee: “Rest breaks and meal breaks are to be observed during an employee's work period—(a) at the times agreed between the employee and his or her employer; but (b) in the absence of such an agreement, as specified in subsections (1) to (4).” That amendment is important. It at least acknowledges the ability of the employer and the employee to reach agreement, and we will certainly be voting for it.

I signal at the outset that we will also be supporting Peter Brown’s amendment. It has particular relevance to the transport industry. The transport industry submitters were most concerned about the consequences of this bill for their respective operations. Their hours of work and the timing of their work breaks are covered under separate subordinate legislation, such as the work time and logbooks rule and the maritime rules. Mr Peter Brown’s amendment makes it clear that those specific transport-related rules would prevail. We will support that. To not support it runs the risk of there being conflicting rules, and confusion as to which rules prevail in relation to the transport industry.

There is still concern, of course, about the wording of the bill and, in particular, about what “reasonable and practicable” means, because that term is applied not just to the rest break and meal break provisions but also to the provision of breastfeeding facilities and to breastfeeding breaks. Concern has been expressed as to what “reasonable and practicable” would exactly mean and what it would entail to test it. We were given some guidance that there is some definition or indication of what “reasonable and practicable” means in health and safety legislation, but not in the Employment Relations Act itself. Perhaps that health and safety legislation can provide some guidance as to what “reasonable and practicable” means. There is also some comfort—again, not a lot of comfort—in the fact that a meaning will be provided in a code of practice that is to be drafted. One can only hope that it will be drafted with sufficient certainty and flexibility to ensure that both employees and employers understand what it means, and to ensure that it is fair. With any legislation, we have a duty to create good law. Good law requires certainty, and not just for businesses; both employees and employers need certainty as to what the wording of the legislation means and what it will entail. That proposed code will need to be drafted with a lot of thought and research.

We support this bill.

BennettDAVID BENNETT (National—Hamilton East) Link to this

As regards the Employment Relations (Breaks and Infant Feeding) Amendment Bill, my colleague Kate Wilkinson has made some very pertinent points about it. A number of amendments take into account the views of specific industries that felt the bill did not accommodate the practicalities and the realities of how they actually do business. The transport industry was one of those whose representatives came before the Transport and Industrial Relations Committee—with special reference to the nature of the bus industry. They made it quite clear that the bill would have a detrimental effect on the way that they run their operations. I think all the members of the select committee saw some relevance and some practicality in what they were saying. The amendments put forward in that regard take into account the need to make law that is sensible, where we can do so.

But in looking at the Employment Relations (Breaks and Infant Feeding) Amendment Bill in a general sense, I think one of the big things about the meal break portion of it is to consider what it actually means for a lot of employees. A lot of employees negotiate meal breaks within their employment agreements. During the course of the select committee process, it was found that some employees would actually lose rights under this legislation proposed by a Labour Government. Many employees have better rules in regard to meal breaks than what this legislation was originally going to provide, and, in this case, still provides. We saw that in the medical field, especially with nurses, who in certain cases had negotiated much more comprehensive arrangements for their meal breaks. The legislation was going to take away some of those advantages. The select committee looked at the legislation and came to the conclusion that we needed to make sure that workers would not be in a worse position than they were in before this legislation had been proposed.

That was one of the key requirements that the select committee made some progress on, and we saw amendments made to the bill to take into account the nature of the work arrangements. Members will see that the words “so far as is reasonable and practicable in the circumstances” have been added to clause 4. That is one of the opportunities, I guess, to provide some flexibility within the legislation to take into account individual circumstances. There is a bit of debate about what the wording actually means; “reasonable” and “practicable” are quite legalistic terms, but they are common terms that are used throughout our legislation and in our courts. They open up the way for interpretation, and that should be done in a meaningful and progressive way for all concerned.

When we look at the timing of rest breaks, we see that one of the major considerations was to get those timing requirements right—not too prescriptive but not too restrictive, either. The bill needed to take into account the nature of work arrangements and also employment agreements, in the sense that some speciality of the work or the nature of it may require negotiation on the timing and the nature of rest breaks.

In essence the legislation, in trying to deal with breaks, dealt with some things one would find in normal employment arrangements. The legislation needed to account for that, and in most cases that has been done through the Supplementary Order Paper that has been put forward, or through the select committee process, which looked at the practical realities of what the legislation could provide, to make sure we had sensible legislation going forward that could provide those kinds of meal breaks in the future.

The National Party supports this legislation. Some changes have been made to it in the past couple of days that probably are not in the best interests of this Parliament.

The question was put that the following amendment in the name of Peter Brown to clause 5 be agreed to:

to add to section 69ZH the following subsection:

(2) Despite subsection (1), where an employee is a person who is required to take a rest break by, or under, another enactment, the requirement for a rest break defined by, or under, the other enactment applies instead of the provisions or entitlements for rest breaks or meal breaks provided under this Part.

Amendment agreed to.

The question was put that the amendments set out on Supplementary Order Paper 229 in the name of the Hon Trevor Mallard to Part 2 be agreed to.

A party vote was called for on the question,

That the amendments be agreed to.

Ayes 67

Noes 50

Amendments agreed to.

Part 2 as amended agreed to.

Clauses 1 and 2

The question was put that the amendment set out on Supplementary Order Paper 229 in the name of the Hon Trevor Mallard to clause 1 be agreed to.

A party vote was called for on the question,

That the amendment be agreed to.

Ayes 67

Noes 50

Amendment agreed to.

Clause 1 as amended agreed to.

The question was put that the amendment set out on Supplementary Order Paper 229 in the name of the Hon Trevor Mallard to clause 2 be agreed to.

A party vote was called for on the question,

That the amendment be agreed to

Ayes 67

Noes 50

Amendment agreed to.

Clause 2 as amended agreed to.

Bill reported with amendment.

Report adopted.


Sep 2008
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