Hon KATE WILKINSON (Minister of Labour) Link to this
I move, That the Holidays Amendment Bill be now read a third time. It gives me great satisfaction to support the Holidays Amendment Bill at its third reading, and again I would like to thank my colleagues, the select committee, and the officials for their work on this bill. This Holidays Amendment Bill reduces compliance costs for employers and clarifies the law by making it simpler to understand and implement. The Holidays Act is difficult legislation and it has caused significant frustration for both employers and employees. Last year I established a working-group, made up of union and business representatives, to review the law and recommend practical changes. It looked at a number of issues, including the transfer of public holidays, questions around sick leave, and allowing employees to trade 1 week of leave for cash. In particular, this group focused on addressing difficulties with relevant daily pay, the calculation of payment for public holidays, alternative holidays, sick leave, and bereavement leave.
The current equation has been a burden on businesses where employees work variable hours, and as such their pay can fluctuate from week to week. It has taken an inordinate amount of time and effort for many small businesses to comply. This Government wants small businesses to have confidence in our employment framework, and to invest their energies in growing their operations. We do not want employers getting frustrated and wasting their time trying to figure out how to comply with complex formulae in complex legislation. As a result, the working-group has drawn up a new concept called average daily pay. This change will make the Holidays Act easier to understand for those who work variable hours. When relevant daily pay is not possible or practical to calculate, the employer may use average daily pay. This payment for leave is based on past identifiable earnings over the previous 52 weeks, or whatever period the employee has been employed. This addresses the issue of potential fluctuations in pay. Both employees and employers will have greater certainty around what leave payments will be. This is an important change. It will give employers greater clarity and significantly reduce their compliance costs under the Act.
The bill also allows greater choice and flexibility for employees with regard to cashing up annual holidays and the transfer of public holidays. Giving employees the choice to exchange up to 1 week’s leave for cash was signalled in the National Party’s manifesto prior to the election. If an employee has 6 weeks of leave stored up, then he or she may well want to cash in one of those weeks, where the employer agrees to it. Many employees do not use their full allocation of leave in a year, and it is entirely at their discretion whether they wish to make this trade. It is abundantly clear that only the employee can make this request. If an employer does that, he or she is in breach of the Act. This policy is about giving New Zealanders greater choice and flexibility. It is incredibly popular, and I am sure the public is very much looking forward to utilising it.
This bill also simplifies rules in other areas of the Holidays Act, and addresses concerns that current arrangements are having a negative impact on business operations and productivity. This includes clarifying the law to allow employers to request proof of sickness or injury within 3 consecutive days of an employee taking sick leave without first having reasonable grounds to believe that the sick leave is not genuine. The current law is open to interpretation, and employers have noted that they simply do not know at what point they have reasonable grounds. This change will make the law clear and simple. The reality is that this law will be used only very sparingly. Employers have to pay for the proof, and it is clear that they will request a medical certificate only when they genuinely suspect someone of routinely pulling sickies. Employers also value good relationships with their staff, so to abuse this provision will harm only themselves.
This bill also provides more choice for employers and employees by restoring the right to transfer the observance of public holidays to another working day. This law change recognises that it may better suit some workplaces and employees to agree to observe public holidays on other days. Again, this is about choice. Where it works for both parties, they will now have the ability to agree to the transfer; for example, an employee may agree with their employer that they can observe their regional anniversary on another working day that holds religious or cultural significance for the employee. All New Zealanders remain entitled to the 11 public holidays we observe, and most employees will take those holidays as they always have.
A provision to take effect this December clarifies employees’ entitlements during a customary close-down period such as Christmas. It makes it clear that employees are entitled to be paid for public holidays, alternative holidays, sick leave, and bereavement leave falling during a customary close-down period if they would otherwise be working days for the employees. This does not change current practice, but is in response to a recent Employment Court decision, and ensures the legislation reflects the original policy intent.
Lastly, we are increasing the maximum penalties under the Holidays Act. Maximum penalties for non-compliance with the Act will double to $10,000 for individuals and to $20,000 for companies and other bodies corporate. There is no reason why employers cannot meet their obligations under this Act, and the current penalties are too weak. Breaches of minimum entitlements are not conducive to good commercial practices and it is important that the law is taken seriously.
In conclusion, I say that this bill responds to concerns raised by the public, and utilises the experience of the working-group. It retains the integrity of the Holidays Act, maintaining employees’ holiday and leave entitlements whilst also promoting greater flexibility and clarity in key areas. It will be less of a burden on business while also giving greater choice to employees who may want more flexibility around how they take their annual holidays and public holidays. I commend this bill to the House.
Hon TREVOR MALLARD (Labour—Hutt South) Link to this
I would like to start off by repeating my comments on the previous bill as to what I consider to be the inappropriateness of bringing very controversial labour legislation to the House at this time. I think it shows a lack of taste and a lack of judgment on the part of the Minister, and what it means is that the debate—and I hope it was unthinking, rather than deliberate—on something that is quite controversial must inevitably be stifled.
This bill is just a continuation of the National Government attack on wage earners’ and salary earners’ rights, wages, and conditions. It is consistent with the approach that John Key has taken as leader, which is the exact opposite of the promise he made with regard to those wages and salaries, and the gap with Australia. He is driving them down, rather than helping them up.
Most of the amendments are unfair. They are very unbalanced, they are absolutely unnecessary, and they are ideological. The fact that they were announced at the National Party conference, after a working-group but without full consultation, is something that is concerning to democracy, and, again, the fact that these amendments were pushed through at the Committee stage, and the second reading, under urgency is a sign of the disregard this Government has for workers’ rights and for the conditions of middle - New Zealand wage earners and salary earners. I think it shows a degree of arrogance and, frankly, bad parliamentary management. If the normal approach had been taken, I am sure the Government would have spent less time on this legislation than it actually did.
It is hardly necessary for Opposition members to focus for a long time on the submissions on this bill, although we certainly did at the select committee. It is probably unnecessary for us to do a lot of research on the bill, because the Government has been generous enough to provide within the regulatory impact statement a very clear statement of the issues in this bill. The regulatory impact statement makes clear that, as part of the Government’s attack on workers, this legislation will reduce opportunities for rest and recreation away from work for wage earners and salary earners. That will increase working hours overall and decrease time for community and family activities.
When did members of the Government, as part of the election campaign, go to families and say they would reduce the time families will have together? When did the Government say to them: “We think that community activities on the part of wage earners and salary earners should be reduced.”? I just say that it is an interesting comment on the different values on this side of the House that the Labour Party—and, I must say, in this case the Green Party, but not the Māori Party—are supportive of people having family time and having time for community activity. I am sorry; I might be getting an indication from the Māori Party that it has changed its position on the bill. If that is the case I welcome it. I think it is a good move, and I am very supportive of the Māori Party. Is it getting close to Matariki? Someone is seeing the light, anyway.
Hon Parekura HoromiaHon TREVOR MALLARD Link to this
Oh, it is exactly the opposite time of the year. Maybe we are heading towards June, and the light is being seen by the Māori Party. I think that is good.
The regulatory impact statement indicates that the bill may negatively impact on health and safety. It will increase the risk of fatigue and stress-related illness, and could lead to an increased use of sick leave. Do members opposite not understand that workers who have proper holidays are much more productive? Do those members not understand that workers are more productive when they can take a break, a day off, if they have the flu, and not have to line up at the doctor’s for a certificate for that 1 day off? They will suffer a lot less from long-term fatigue, which is one of the barriers to increased productivity in New Zealand. People who are fatigued can often do rote jobs pretty well—even when they are very tired. But if they want to think of ways to make their jobs more productive, they cannot be in a state of fatigue, because their judgment goes.
The regulatory impact statement makes it clear that this will negatively impact on groups of workers who are already disadvantaged in the labour market—for example, women, low-paid workers, youth, and Māori and Pacific peoples. I am very pleased that the Māori Party has seen that part of the legislation and seen whom it impacts badly on. Even the Government says that Māori and Pacific peoples will be more adversely affected than others. The regulatory impact statement makes it clear that the gap between genders will be increased—and if it were some other time I would focus on the role of the Minister of Women’s Affairs in relation to this and the fact that no attention has been paid to it.
It indicates that, especially for small businesses, it will impact on workplaces’ budgeting and financial management if they have not planned for the additional payments that may result from this legislation. It also indicates that there is a likelihood of an increase in disputes between employers and employees—for example, around payment for cashed-up holidays, whether the agreements are genuine, and if an employee believes their request has been unfairly declined. I think it is fair to say that the last thing members on this side of the House want to have is legislation introduced to the House, or passed by the House, that is likely to increase those disputes.
The idea that, so soon after getting to the point where we have 4 weeks’ annual leave a year, we put 1 week up for sale is very, very backward. People who are desperate for cash, people who are very low-income workers, will no doubt take advantage of it. People who probably most need to spend time with their families will lose time with their families as a result of this legislation. It comes as no surprise that Roger Douglas is a keen supporter of it, along with National. Roger Douglas, along with John Key, deep in his heart does not believe any more in workers having holidays at all. He believes that everyone should be on a contract where an employer decides whether they have holidays and when they take them. Well, we have moved out of his 18th century approach to life and we have moved forward into the 21st century.
For a small part of the 21st century, New Zealand has been closer to most countries in the OECD with reasonable leave provisions. It is still not ideal—there is work to do in the paid parental leave area, in particular. My colleagues and I have some similar views on Anzac Day, Easter, and especially when two public holidays fall at the same time. The Government chose not to take advantage of an Opposition amendment, moved by Darien Fenton, whereby we would have recognised it next year. I am an old-fashioned person. I think Anzac Day is on the 25th and it should not be shifted. But I am also old fashioned in that I see no religious importance in Easter Monday. Easter Monday has no religious significance at all. It was a day added on after Easter Sunday in the days where no one ever worked on Sundays, to give an extra day to have a long Easter weekend. There is no significance—
Hon TREVOR MALLARD Link to this
I ask Mr Bennett what the religious significance of Easter Monday is.
Hon TREVOR MALLARD Link to this
Well, I do know, and there is none. The point that I am making is that shifting that observance to Tuesday has no religious problems, and I think it was something the Government should have taken advantage of.
DAVID BENNETT (National—Hamilton East) Link to this
That last speech was a very emotional speech from Trevor Mallard. It tried to create a lot of fear and anxiety amongst New Zealand workers, which is the Labour Party’s tactic in regard to this bill, the Holidays Amendment Bill. That is quite unjustified and unnecessary. This is a good bill for New Zealand workers. It gives New Zealand workers choice in how they take their holidays; it gives them choice in how they use that time off. I think one of the points that the Minister of Labour raised was very important: maybe somebody wishes, for cultural reasons, to have a public holiday on another day, such as Diwali or something like that. This bill may give the opportunity to people to celebrate in their own way their own special days. So I think the bill shows, once again, that the Government is acting in the best interests of New Zealand workers, contrary to the Opposition, which is trying to put a different slant on it for the sake of its publicity. We support the passage of this bill through the House and thank all those who made submissions, the Minister who put it forward, and the Transport and Industrial Relations Committee for its hard work. Thank you.
DARIEN FENTON (Labour) Link to this
John Key said long hours at work, both parents being in employment, childcare shortages, growing interest rates, and rising bills can create a far from ideal environment for good parenting and family relationships. We agree with that; he is absolutely right. So why does the Government advocate for longer hours to be spent at work, by allowing workers to cash up their fourth week’s holiday, thereby keeping both parents at work—because the fact is that workers are not getting pay increases, so many will be attracted to do that—and also refuse to address the issues that we have about the long work hours culture that we have in New Zealand? The Holidays Amendment Bill, in conjunction with the Employment Relations Amendment Bill (No 2), which we have just passed this afternoon, to the shame of this Parliament, and the legislation on the Order Paper that provides for the removal of meal and rest breaks are contributing to a claw-back of longstanding employment rights and entitlements. These bills treat workers as being untrustworthy. They remove existing protections, and they weaken previous gains in working conditions.
The previous Labour Government brought in significant improvements with the Holidays Act 2003. I note that National voted against them, particularly the fourth week’s annual leave. I will recap on the provisions of the Holidays Act 2003. First of all, the purpose of the Act is to promote balance—I repeat the word “balance”—between work and other aspects of workers’ lives. Labour brought in the fourth week’s annual leave for rest and recreation. That is the purpose of the leave; it was not for money. Labour brought in payment at time and a half plus a day off when a worker has to work on a paid public holiday, 5 days of sick leave a year after 6 months’ employment, and bereavement leave, as well. We got the fourth week’s extra leave only in 2003. Australia has had it since 1974. It took 30 years for workers to win an extra, fourth week’s leave. Now it is up for grabs, and I will get into that a little more as I get into my speech.
I will also comment on the ministerial advisory group that the Minister referred to. She made it sound as though there had been a large level of agreement on that group. There was a bit of agreement. The ministerial advisory group had people from the Council of Trade Unions, Business New Zealand, and so on, on it. But there were a whole lot of things that they did not agree on. The only thing they agreed on was the provision to transfer a public holiday to another day of cultural significance, although the caveat from the Council of Trade Unions was that there needed to be adequate protections to ensure that where that happens, the worker who works on the public holiday must be paid time and a half, and that the provision is not used for a reason to avoid doing so. I am not confident that those protections are in place. They agreed that there would be no change to the treatment of public holidays—well, there is. It also agreed that there would be no change to the treatment and entitlements of casual employees—well, that is good.
But the ministerial advisory group did not agree on the cash up of annual holidays—the members did not agree on that. They did not agree on the formula for determining average daily pay. They did not agree on a whole range of other things, including making Easter Sunday another holiday, just as a matter of interest. So the idea that this bill flowed from the ministerial working group is completely untrue. The problem with it is that apart from the research that was done during the work of the ministerial advisory group, it is based on really poor data. Trevor Mallard has referred to the regulatory impact statement and the real holes in it, and the difficulties that the Minister’s department had in trying to find any evidence for some of the provisions that are in this bill.
I will go back to the issue of the fourth week’s leave and why we have an issue about the cash up. I can understand why any worker would be attracted to the idea of being paid for 53 weeks but working 52, particularly in this environment where there has been zero or very low pay increases—I can understand that. But the problem is that leave is not a commodity; it should not be up for sale. Once it is up for sale, that will weaken that fourth week’s provision for vulnerable workers. Over time it will not become a fourth week’s annual leave; it will become just part of one’s salary. I know that the protections are written into the bill, but that entitlement is being chipped away. We will lose the fourth week’s leave, which was fought for over 30 years. As I said, that is why Labour is opposed to that amendment. I understand why people think of the fourth week as providing a little extra cash, but it is quite shameful that people are in a situation whereby they cannot afford to spend time with their families. They need the cash. They want to spend the extra money they will get from the fourth week’s leave. That is my objection.
The other objection is that a lot of people worked very, very hard over the years to win a fourth week’s annual leave. It did not just come about. The previous Labour Government enacted it in the end, but lots of people had campaigned for it for many, many years. Like paid parental leave, eventually we got there, but some women had campaigned on that entitlement for many, many years. I remember when the then National Government thought that paid parental leave should be cashed up. Do members remember the baby bonus idea: that people did not have to take leave to look after their baby, which is what paid parental leave is about? It was said they could cash up the paid parental leave because they might need to buy a few extra nappies.
Minimum conditions are supposed to be minimum conditions. Workers can, and do, negotiate extra holidays. If they want to cash those up, that is fine, but the minimum entitlement of New Zealand workers should not be undermined by this provision.
I want to talk a little about public holidays and how that provision is being undermined. The first point is around the alternative holiday. Effectively, the bill provides that the employer gets to decide on it. If there cannot be any agreement, the employer must give at least 2 weeks’ notice and gets to decide when the alternative holiday will be. That is really, really unfair. Under current provisions the employer and employee have a year to try to reach agreement, because the employee has a year in which to take the alternative holiday. What I can see happening is families being forced to work on Christmas Day, as many workers are, and having to take the alternative day off at a time not of their choosing, when their family are either on holiday or back at work. Again going back to what John Key said about both parents being in employment, childcare shortages, low pay, etc., I say this provision will add to that problem.
The third point I will touch on is the whole area of sick leave, and the really silly provision that requires a sick note for the first day’s illness. Nobody can tell us where that came from. It certainly did not come through the ministerial advisory group. It was not raised at all—definitely not. There was no advice from the Department of Labour on that. No one asked for it, as far as we can tell. It does not seem to have been on anyone’s mind. Maybe Roger Douglas suggested that everybody should need a sick note after 1 day’s leave—like he did with regard to the extension of the 90-day trial. Maybe it was Roger Douglas; maybe the Minister was rolled again. There is plenty of data out there about this, which the Minister does not seem to have considered. For example, the 2009 national employers wage and salary survey looked at 593 employers with 38,000 employees, and found that the average number of sick days that New Zealanders had taken in the preceding 12 months was 4.6 days. So we do not have a problem with people not being at work because of illness. As we saw from the report from Treasury last week, we have a problem with people going to work when they are ill. We were worried about swine flu, and we got through that, thank goodness. But another pandemic will come along one day, and how on earth will we prevent its spreading? How will we prevent the spread of illness? How do we stop that happening, if workers in difficult economic circumstances feel that under this legislation they have to go to work when they are ill?
This bill is a disgrace. As my colleague Trevor Mallard said, it is a damn shame that the third reading is being debated today, given the awful situation that we have on the West Coast.
KEITH LOCKE (Green) Link to this
The Green Party is very strongly opposed to the Holidays Amendment Bill. It effectively takes away from workers their long, hard-won rights to holidays. About 8 years ago we managed to get a fourth week’s holiday for all New Zealand workers—4 weeks’ statutory holidays. We were catching up a bit with countries, particularly in Western Europe, where they have 4 or 5 weeks’ holiday already, and that was a fantastic achievement. I think New Zealanders celebrated that achievement, but the National Party was never keen on that, and the ACT Party was never keen on that. Now they are trying to erode that achievement, and the way they are doing it is to give people the right to sell off the fourth week of their holiday. The people who will sell it off are the people who most need a holiday—the people who are hardest up. They will be people who are on $13 an hour, maybe have five kids, no fixed assets, rent a house, and find it quite difficult to make ends meet. They will be the ones who will be tempted in some way to sell off their holiday. They might get some small financial advantage but it will be at the disadvantage of the rest period that they really need. They will be people who often work longer hours, more overtime, at heavy physical jobs, and who most need a holiday. We can be sure that the people at the higher end of society, including MPs like ourselves, judges, chief executive officers, whatever, who even before the statutory fourth week holiday came in had 4 or 5 weeks’ holidays, will not be suffering or trading off a week of their annual holidays. That only reinforces the inequality in that respect in terms of leisure time available in society.
Leisure is very important. It is a very human thing and a very necessary thing. It is important that given the very difficult situation in Pike River, and not wanting to get into that issue in terms of what exactly has happened or what caused this particular accident, I think it draws our attention back to the need to really concentrate on safety in the workplace. One thing that generally helps with safety in the workplace is if people are rested; not overworked, but on the ball and have their mind on all the safety issues, and are looking after their workmates, etc. In that context we should not be moving backwards in terms of holidays and leisure.
The Government goes on about choice and how people have a choice about whether they sell off the fourth week of their holiday, but in many situations they will not have too much choice. The employer may want to have the office, factory, or whatever open for an extra week, so pressure will be put on a section of the workforce to sell off their fourth week’s holiday. We might think that under the legislation those people have choice and they do not need to accept that. But in fact people in a workforce with an imbalance of power who want to be promoted, or do not want to be shifted out of a good job in a particular workplace, will feel that if the pressure is on they had better go along with what the employer says and what other workers are doing and sell off the fourth week of their holiday. The idea that it is completely choice ignores the relationships in a workplace and the power of employers to work out who is promoted, who is not, and all the rest of it. That is something the Government completely ignores and was never discussed through all of this debate on the Holidays Bill or the Employment Relations Amendment Bill (No 2).
Even if workers sell off the fourth week of their holiday to get a little bit of extra financial advantage, that financial advantage can easily be clawed back in the next year or the next 2 or 3 years by the employer, depending on the strength of the union to maintain wages and conditions. But when workers sell off a week’s holiday it is more difficult to go back to where they started from.
On the transfer of public holidays from Christmas and Easter, for example, to some other day, it is important to consider what the good things are about Christmas Day, Boxing Day, and Easter holidays. There are two things: first, it is the time when families are together, and although there may be one or two people working in the society, overwhelmingly people have the time off and can travel to be with their families. That is fantastically important for families and for communities.
The second good thing about having not many people working on Christmas Day, Boxing Day, and Easter Day, etc. is that it means they are quiet times. It is great during the Easter or Christmas period to go around when the shops are not open—it is an unusually quiet and relaxing time, which is welcomed by a lot of people in the community. The more we have this transferring of holidays, the more people will be working on Christmas Day and Easter Day, etc., and that is tied in with the attempt by National and ACT MPs to allow shops to be open on Easter Friday, Easter Sunday, or whatever. It is tied in with more and more people working on those days. This enticement to trade off one’s holiday will not necessarily be voluntary. Again, because of the power of the workplace, people tend to go along with what the employer is pushing for. In fact, the employer might want a day off on Christmas Day and say to an employee: “Could you just transfer your holiday? You can come in and keep the place open on Christmas Day.” The idea of choice does not apply in practice.
Then there is the question of employers being able to require a sick note for 1 day’s absence. The Minister in her introductory speech said that this would happen only when employers genuinely suspected that there was something dodgy going on. If she really believes that this will happen only when there is a reason to genuinely suspect something, why did she remove the words in the Holidays Act that said that employers could require a sick note for 1 day’s absence if there were reasonable grounds—reasonable grounds being if someone took 5 consecutive Mondays off or whatever? Instead, she has changed the legislation so that it does not include “genuinely suspect”—or the sorts of words that she used. It says that the employer may require proof of sickness or injury within 3 consecutive calendar days—full stop—for any reason whatsoever. She has specifically removed the two words “reasonable grounds”, so she is not really explaining what is behind this bill when she says that employers will require a sick note only if they genuinely suspect something.
She also says that employers will not do that unjustly, because they all want good relations with staff. That is the problem. Unions exist because, often, there are bad employers who do not have good relations with staff and do things unjustly. We are not in a utopian world of all good employers. Often employers do not like unions so they will harass the union leader off the job, perhaps by requiring a sick note every time they are off. If I were trying to get the union off the job I would use that tactic. Why not? Why not do that every time a union leader was off sick by saying they had to have a sick note? That is what happens. Members are living in utopia if they think that all employers are great and want good relations with staff. That is just la-la land. We really need to go in the opposite direction so that people do not need to transfer and sell off their holidays, by giving workers, particularly those at the lower end, a better deal. A $15 an hour minimum wage would get a lot of people off their present wage of $13 and $14 an hour.
Hon Sir ROGER DOUGLAS (ACT) Link to this
We have just been listening to the “we know best” mob. They are the mob who say to workers “We do not trust you. We do not trust you to be able to make up your own mind. We do not trust you to make the trade-off involved in taking 1 week’s holiday or working that week and getting the extra income.” This group of people, Labour and the Greens, are simply not of the real world—they are not of the real world.
Let me give members two or three real-world examples of the trade-offs that people might make. Imagine a family who is $1,000 in arrears on their mortgage, and that is of particular concern to the family, and is causing friction in the home. They have the opportunity to work 1 extra week and pay off a large part of that $1,000. But Labour and the Green Party say to that worker: “Thou shall not work. Thou shall not pay off that mortgage. We know best for you.”
There is a family, they have 4 weeks’ holiday, and cannot afford to take their kids away. The kids want to go to the beach for a week, they would love to go to the beach for a week, and the parents would love to take them to the beach for a week. So what do they decide to do under the Holidays Amendment Bill? Under this bill they will be able to work 1 extra week, trade that in, and take the kids to the beach. That is a real possibility. But what do the Greens say? What do Labour members say? They say: “Thou shall not do that. You have to stay at home for the 4 weeks.”
These are decisions that individual New Zealanders are fully capable of making for themselves, on whether to catch up with the mortgage, or have 1 week less holiday but be able to take the children away to the beach. But no, Labour and the Green Party say: “We do not trust you. We do not trust you to be able to make those decisions.” Frankly, I trust the average New Zealander a lot more than I trust Labour or the Green Party.
RAHUI KATENE (Māori Party—Te Tai Tonga) Link to this
I am very pleased to stand and speak on this Holidays Amendment Bill and I find it so interesting that the two parties that believe in less government and less legislation are actually using legislation to tell people how they should be living their lives. Earlier today the Māori Party received an email that told us in no uncertain terms exactly how we needed to vote on this bill. It said: “If we allow workers to covert”—I think he meant convert—“time to cash the next obvious step is for employers to say ‘We are obviously giving too many days holidays. The workers don’t need them. The fact that they are selling them is proof in itself’.” It went on to say: “The people who will sell their holidays are the lowly paid ones and already work the most overtime and who really need the holidays and times with their whānau.” The email finished in large capital letters with “VOTE NO”.
We as a caucus have had a very passionate and considered discussion of the issues raised by this legislation, and I want to address those issues one by one. First, the bill allows employers and employees to agree to transfer the observance of public holidays to another working day. We saw this as a very significant advance in allowing a mechanism by which whānau members could identify days of special cultural significance for them for which they sought leave: days like Te Hui Ahurei o Tūhoe, the Ratana celebration, and the recognition of the 18th day for those from Taranaki iwi. The opportunity to honour one’s cultural and spiritual legacy is something we supported. But this bill then twists this opportunity by stipulating that should the employer and employee not agree, then the employers should direct when an alternative holiday is taken. If I, as the employee, tell the employer that I will work on Queen’s Birthday so that I can take the day on which Matariki falls as a holiday, but the employer does not agree, what is the point in my working on Queen’s Birthday if I cannot then take off the day I need to observe my culture?
The second issue is that the bill allows employers to request proof of sickness or injury within the first 3 consecutive calendar days of an employee taking sick leave without first having reasonable grounds to suspect that the sick leave is not genuine. Although we would be the first to argue for transparency and accountability as core principles of any employment relationship, we cannot fail but be influenced by statements made by the New Zealand Nurses Organisation and the New Zealand Educational Institute, speaking on behalf of some 46,000 nurses and 50,000 education staff in primary schools and early childhood centres. It is their collective view that the new law has implications for children’s health and welfare. They suggest that the new law may mean that parents who use their own sick leave to care for their children are less likely to stay home with their children, if they fear that doing so will put their employment at risk. That could result in more ill children attending schools and kōhanga, the implications of that being obvious.
They also pointed out that New Zealand law currently provides for 5 days of sick leave a year, which is one of the lowest rates in the OECD. Further to that, New Zealanders currently take, on average, 4.6 days’ sick leave a year, compared with 7.4 days in Britain and 8.6 days in Australia. We can take from that comparison that either we are a lot more sturdy than our British and Australian counterparts or that we drag ourselves to work at varying stages of ill health, simply because our leave restrictions are so harsh.
The third issue is that the bill allows by agreement 1 week of an employee’s minimum entitlement to annual holidays to be commuted for a cash payment to the employee. This was a difficult one for us. We know that some members of our community are faced with such difficult and compromised financial constraints that the opportunity to cash in their holiday leave might just well be the respite they need to ease the grind of everyday poverty, but we cannot reconcile the fact that we firmly believe that every worker has the right to rest and recreation. They have the right not to be working every hour of the day, every day of the week, unlike MPs. They have the right to enjoy being with their whānau. So we firmly believe that the right thing to do is to support employment legislation that promotes opportunities for employees to be with their families and to benefit from rest.
We are also influenced by the view that came to the select committee that in this bill there are no safeguards against employers wielding undue pressure on an employee to cash up their leave and sell away their holiday. We gave this bill the benefit of the doubt in previous stages, but, as I indicated to Mr Mallard, at this third and final reading we are simply faced with too many questions to be able to satisfy our concerns. We believe, on balance, that this legislation should not be supported, and therefore we will be voting against the bill.
Dr JACKIE BLUE (National) Link to this
I am pleased to take a short call on the Holidays Amendment Bill. The principal Act has been criticised for being overly complex and prescriptive. The Government recognises that prescriptive laws cannot work or account for the variable hours, the variety of jobs, and the diverse workplaces that exist in New Zealand, and there needs to be greater flexibility and choice. This bill gives exactly that. It makes a number of sensible amendments in that direction. It will help improve the overall operation and efficiency of the Holidays Act 2003, and I commend it to the House.
CAROL BEAUMONT (Labour) Link to this
I rise again to speak of another concerted attack on wage earners and salary earners in this country. I note for the record and for those listening that all the way through the debates on the Holidays Amendment Bill and the employment relations legislation we have heard Government members stand up and say they will take a short call, without dealing with what are very substantial issues and major changes to our legislation. I think that, in itself, is quite telling. There has been no real content and no real effort to analyse issues. Instead members opposite have put out the same platitudes about how this is really about choice. It is dressed up as choice, and I will talk about some of the choices, especially in light of the comments made by Roger Douglas. Supposedly this bill is also about making the legislation easier to understand. Well, that is an interesting one as well, so I will talk about that.
Like the Employment Relations Amendment Bill (No 2), this bill is unjustified, unnecessary, unbalanced, and unfair. I will talk about three key provisions and I will analyse them against those particular points. At its heart, we are dealing with a set of issues that are about people’s time and their work-life balance—their ability to manage their time at work and their time outside of work. That is an increasingly significant issue in countries such as New Zealand. We have gone from a situation where one-income households were the norm to one where it is necessary for households to have both parents working. Often the kids are working as well; the majority of teenage children are in the paid workforce. We have moved into a situation where time is an increasingly hard issue for families to balance. There has been a temporary situation—I hope, at least—where unemployment has meant that some people now have far too much time. That is a separate issue, and one that this Government is not addressing properly either, but now I am talking about those people who are in the paid workforce.
The ability to manage work and other life issues is really important, and it goes to the quality of our working life and to the quality of our wider lifestyle. It involves spending time with family and friends and enjoying some of the things that we think make us uniquely New Zealand, such as being able to go out into the bush and to the beach, and those sorts of things. When we read the regulatory impact statement we see that major concerns are raised about a number of provisions of the bill, and again a concern has been raised by officials that there is not the evidence to back up many of the provisions being put forward here. I will not litigate that issue again, because I know that the Hon Trevor Mallard has explained it in some detail to the House. But it does not seem to matter to members opposite; getting advice from officials and ignoring it seems to be a relatively common occurrence. I put it on record that many concerns have been raised in the regulatory impact statement.
I will talk about the fourth week provision first. This is a minimum provision, and minimum provisions are, by their nature, meant to set standards. We say, as a standard, that the minimum wage is set by law, and people cannot work for less than the minimum wage because, as a country, we believe that is a socially acceptable minimum. Likewise—[Interruption] Well, the Government may well have a go at the minimum wage next. Minimum holiday provisions are just that: they are minimum holiday provisions, which means time to have off, on pay, with family and friends, to enjoy some time together without being at work. The 4 weeks’ annual leave requirement is time to have a holiday. It is not time to sell a holiday; it is time to have a holiday. As I said in earlier speeches on this bill, very few people get to the end of their lives and regret that they did not spend more time at work. They often get to the end of their lives and regret that they did not spend more time with their family or doing the things that mattered to them.
Yes, and I have flagged that issue, and I reinforce again that there is a huge issue with unemployment that this Government is not addressing.
The sale of the fourth week of holiday is linked, at its heart, to low wages. The desire to sell the fourth week will be driven by low wages. The examples that Roger Douglas gave were about people who need money. The people most likely to have to sell their holidays are those on low incomes. Our wages are too low. There is a gap of 30 percent, on average, between wages in New Zealand and Australia, and that gap is getting larger, and it will continue to get larger under this Government, which does not have any ideas on lifting workplace productivity or improving the quality of our working lives. The gap between wages in New Zealand and Australia will get higher. It is the reason why people leave our country and go to Australia, and it will drive people to sell their fourth week of leave. The reason people will sell their holiday is not because they do not want to spend time with their families and have time off, but because they have to sell it to get some money.
There will be groups most likely to sell their time. Low-income groups and other vulnerable groups will be the ones most likely to be in the situation of losing that fourth week—the fourth week that is actually a reasonably new addition to our minimum code. A whole lot of vulnerable workers are most likely to be in that situation: young workers, people who do not know their rights, maybe people for whom English is a second language, and perhaps those who are disabled. In order to try to tell everybody that the Government was not going to see that happen, we had provisions in the original bill that said the sale of the fourth week would be informed and voluntary. Of course, those provisions have been taken out. The “informed and voluntary” bit is no longer in there. The provision is linked to low wages, and vulnerable workers and low-income people will be the people who lose their holidays. Those people are perhaps not the people that members opposite are most concerned about.
There has been a lot said by ACT. Heather Roy talked about the bill last week, and today Roger Douglas talked about the fourth week of holiday as if it is like a property right, as if Labour and the Greens are stopping people from doing something they want to do, and as if that is what this bill provides for. I would like Roger Douglas to stand up in this House and say he would like to see this bill take away the rights of the employer in this situation, because he clearly has not read the bill. This provision does not allow a free right to sell a holiday, because actually it is ultimately up to the employer. The employer could have a completely blanket policy that says nobody will be allowed to sell their leave—not anybody, no matter how desperately they need the money, as Sir Roger said. So if those members are worried about property rights, they perhaps need to talk to National about the fact that the balance is clearly and firmly on the side of the employer. Certainly this bill is unjustified, unnecessary, definitely unbalanced, and potentially unfair. This legislation will be something that applies only to some New Zealanders, and some New Zealanders will have less opportunity to take time off with their family and friends.
The second point I will talk about, a point I feel very strongly about, is the alternative holiday provision: the day in lieu. This is a shocking situation, where there is no evidence of any need for change. The Department of Labour were quite clear on that, and submitters as well, yet we see a situation in which something that is working perfectly well is now being changed with the balance going to the employer. We are talking about a situation where workers work on a public holiday, on a day they normally work, so they get another day off in lieu. Workers have to try to reach agreement with employers, and often that is done, but when that agreement cannot be reached, ultimately it is the workers who get to decide when that day in lieu is taken. That is only fair; this day is replacing a day of great significance on which they have worked—Christmas Day, Boxing Day, or whatever—a public holiday when most of their family and friends have had time off and spent time together. People—and we had the example of the bus driver—work Christmas Day and do not see their families, get a day in lieu, and want to take a day off when they know their partners and kids will be around to share it with them. Under this provision people will no longer have that choice; it will be up to employers to determine when they get that day off. That is just mean-spirited, apart from anything else. It is unfairly penalising workers who are working at the times the employer needs them to be working.
Finally, there is the sickness certificate, which requires people to get a medical certificate for illness or injury, for no reason. At the moment if there is any concern about somebody abusing the sick leave provisions, an employer can require that person to get a medical certificate. This provision just takes away the requirement that employers have to have some genuine reason for doing that. I think Keith Locke was quite right when he said that potentially that could be used to harass people. It is unworkable; we had submitter after submitter saying this provision was unworkable. It will lead to consequences that will be damaging for those with responsibility—those with the primary-care responsibility for children, because most frequently they use their sick leave for domestic leave—and it will be most difficult for workers who will end up going back to work sick and unproductive.
JO GOODHEW (National—Rangitata) Link to this
I rise to support the Holidays Amendment Bill. This bill will improve the overall operation and efficiency of the Holidays Act 2003. The people of Rangitata have told me they support this bill. Therefore, I commend it to the House.
MOANA MACKEY (Labour) Link to this
It is absolutely unbelievable that on an issue as important as the Holidays Amendment Bill, National members are making 5-second speeches and not bothering to address any of the issues being raised by members on this side of the House. It shows the level of contempt those members have for the people who will be the worst affected by this bill: the wage earners and salary earners in New Zealand, particularly those at the lower end of the income scale.
I endorse the comments made by members from the Labour Party, the Greens, and Māori Party on this particular legislation. It shows just how out of touch National members are with the reality for working people that those members think working people have some kind of choice over whether they cash up the fourth week’s holiday. Roger Douglas’ contribution was unbelievable. This bill is not about choice. When the decision is between being able to pay the bills and having that extra week’s leave, that is not choice. I suggest that members in this House get out of their ivory towers and go and talk to some of the families who are really struggling. They should go and tell them stories about sandcastles on the beach.
David Bennett is sitting over there signing his Christmas cards. I am sure he will get a nice break with his family over the holidays, but is it not ironic that he is taking away a lot of the protections that currently exist under the law to ensure that all working people in New Zealand can enjoy time with their families, particularly on days of importance such as Christmas Day? This legislation is not about choice for those families; they have no choice. If we take Roger Douglas’ argument to its logical conclusion, poor people are just choosing not to live in mansions. They are choosing not to be able to afford food. If they are being kicked out of their houses because they cannot pay their rent, they have just chosen not to pay their rent; that is right.
We are passing this legislation, which will put workers in the unenviable position of having to trade off time with their family, time to regenerate and rejuvenate, and time to ensure they are more productive when they go back to work because they cannot afford to pay the bills. National members have talked as though it is a positive thing that workers will be cashing up leave, and as though those members are really proud of their record in Government so far, which has seen unemployment soar. The people who are unemployed and those who are in work have seen the cost of living go up and up. National increased GST to 15 percent earlier this year, despite promising during the election campaign that it would not increase GST. Well, that has hit low-income families the hardest. Those are the very families who, because they have not had a pay increase, will find themselves in the position of having to cash up a week’s leave—which would have been time with their kids and their family—in order to pay the bills.
It is also important to point out that a lot of the workers who will be put in this position will be shift workers. These people work hours that mean they do not get to see their families. It is not a nine-to-five job from which they go home at the end of the night and still get some time with their kids and with their husbands or wives. A lot of these people work more than one job. A lot of them work at night; they are the people who come into our offices at midnight to clean them. They are the people who come in at midnight to clean our offices, and the people who leave for work as their kids are getting home from school. That makes their annual leave even more precious.
When people work in a job that means they do not get to see their families very often, it means that those 4 weeks become even more precious. When people are put in the position of having to give up that fourth week’s leave—a week with their kids, and with their families—because they are not getting a pay increase and cannot pay the bills, they find it hard to bear, and it is even harder for those families. This bill is from a National-led Government that says that it is family-friendly—family-friendly! Everything this Government has done to undermine the conditions of workers in New Zealand goes against the rhetoric that says it is family-friendly. This is possibly one of the least family-friendly pieces of legislation we have seen in this Parliament so far.
It is interesting that National and ACT members see annual leave only in terms of its dollar cost. They do not see any value in it other than what it costs in dollars. They do not see the benefits for families. They do not see that productivity increases in the workplace because workers are rested and because they feel as though they have had some proper time with their families. As my colleague Darien Fenton said, those members see annual leave just as a commodity—one more thing in this world that can be bought, sold, and traded, with no other intrinsic value, at all—and that approach is absolutely wrong.
I will now talk about the argument that annual leave is a property right. This feeds into the idea that annual leave is just something to be bought and sold. We have heard throughout the course of this debate from National and ACT members that annual leave, or holidays, is a property right. Well, I want to know where the respect for property rights was when this Government passed legislation earlier this year taking annual leave from people who are entitled to accident compensation.
Two workers in the same position have the same accident and end up being unable to work, and they both get the same entitlement to ACC. One worker is owed no annual leave because he or she has already taken it all, and the other worker is owed 4 weeks because he or she has been saving it up for time at home over Christmas, or whatever. The Government now says that the worker who has already taken all of his or her leave at the time of the accident gets ACC, but the worker who is owed 4 weeks’ annual leave—4 weeks that has been saved up—has to use up that leave first before getting the accident compensation entitlement.
I ask where the respect for property rights was when the National Government took away those holidays. The Government will say whatever suits it at the time, and the inconsistency between the arguments coming from the Government needs to be pointed out.
I know this is a touchy subject for David Bennett. David Bennett is the chair of the Transport and Industrial Relations Committee. He also took only a 5-second call on this legislation. David Bennett actually stopped a lot of submitters from appearing at the select committee and restricted the time that Opposition members had to question submitters. It was a shame that he did not feel it was necessary to take more than a 5-second call, given his position as the chair of the select committee and the fact that he gets an extra $10,000 a year for being the chair of a select committee. I suggest that that is hardly good value for money.
I will now talk about the issue of the sick leave changes. Currently under the law, if employers have reason to believe that someone is rorting the sick leave provisions, they can require a medical certificate, and that is absolutely just and fair—absolutely fair.
It costs $69 in Gisborne if one has to go to the doctor on a weekend. If someone is obviously taking lots of Fridays and Mondays off, or the boss sees that person on TV at the rugby when he or she should be at work, then absolutely the employer can require a medical certificate. But this change says that if someone is sick for 1 day, then the employer has the ability to require a medical certificate. That is completely impractical.
All the evidence we had at the select committee said that this amendment cannot work. It would be impossible for all those workers to get access to a general practitioner anyway, and if it is just a cold or the flu, any doctor would just tell those people to not bother going in, to get lots of rest and fluids, and so on. Well, employees now have to go to a doctor if their employer tells them that they want a medical certificate. It is total ideology over practicality in the extreme, and the ridiculous thing is that employers can already require a medical certificate. The only thing this bill is changing is that employers no longer have to have any reason to suspect that someone is rorting it. Members opposite keep saying that that will not happen. Well, of course, what will happen is that it completely changes the situation for employees who are sick, because regardless of whether employers do go on to require a medical certificate, they know that they can do that when their employees get sick.
Employees know that when they get sick, their employers can require a medical certificate, so they will just go into work. What we know, what the select committee was told, and what officials told the Government—and what it chose to ignore—is that, firstly, New Zealanders, on average, take far less sick leave than workers in the rest of the OECD countries that we compare ourselves with, and, secondly, the biggest cost to businesses when it comes to sick leave is not the cost of employees taking sick leave but the cost of them turning up to work and making everyone else sick, and the lost productivity that comes from that. The evidence is absolutely irrefutable—
It came from Treasury, which is hardly the most liberal, left-wing Government department there is. Mr Power thinks that is under question. But Treasury does not take these things lightly. It tends to be very conservative about these matters, and it has said the biggest issue is that employees go to work when they are sick. We have legislation here that will only exacerbate that position by scaring workers into thinking that if they do not go into work, they will be required to provide a medical certificate for a common cold. That is ridiculous.
MICHAEL WOODHOUSE (National) Link to this
I begin by saying that if the comments made by Miss Mackey on accident compensation are anything to go by, then the rest of her speech on the Holidays Amendment Bill should be taken with a similar pinch of salt. Labour members showed in the debate on the Employment Relations Amendment Bill (No 2) that they have absolutely no understanding of employers, and now we have the quinella—they have no understanding of employees either. They treat them as if they are idiots. Well, this side of the House does not. This is a good bill and I commend it to the House.
A party vote was called for on the question,
That the Holidays Amendment Bill be now read a third time.
Ayes 64
Noes 56
Bill read a third time.