TIM BARNETT (Senior Whip—Labour) Link to this
I seek leave for this bill to be taken as one question in its Committee stage.
The CHAIRPERSON (H V Ross Robertson) Link to this
Is there any objection to that course of action being taken? There is none.
KATE WILKINSON (National) Link to this
It is a delight to spend the last day of this parliamentary term in urgency, speaking at 9.30 on a Friday morning about an amendment to the Holidays Act, which should have been fixed up many, many years ago, in relation to whether employers and employees can agree to transfer a public holiday. I would like the Minister in the chair, Trevor Mallard, to take a couple of calls to answer some queries.
I note that in 2004 the report Working Group Report on unintended consequences of the Holidays Act 2003 was released, and I shall quote from that report: “Some employers questioned when a public holiday is deemed to start for the purposes of the Act. They noted that in some cases a shift pattern will ‘straddle’ a public holiday in the sense that the shift covers parts of two days, one of which is a public holiday. In these cases employers need to know when the public holiday is deemed to start for the purposes of the Act, particularly when the employer intends to stop production at the start of a public holiday to avoid the requirement to pay employees one and a half times their [relevant daily pay]. … This issue turns on the interpretation of ‘a day’, which is not defined in the Act, but is referred to in section 12(4). … It was suggested that there is nothing in the Act to stop an employee and an employer from agreeing on the time that they deem a public holiday to start.”
That was 4 years ago. The issue of a public holiday being straddled was raised then. It has taken 4 years for us to have this amendment, which addresses that issue. I would really like the Minister to explain why it has taken 4 years for the Government to try to fix this very—[Interruption] The Minister will get his turn. He is not allowed to barrack from that chair. I ask the Minister to explain what exactly this Government has been doing in relation to making the holidays legislation certain, so that both employees and employers can understand it.
The other issue is that this amendment is very, very narrow. Some submitters queried why the ability to transfer those entitlements should apply only to shift workers, and why it could not apply to any employees. I would like the Minister to explain the anomaly—why the provision applies just to shift workers. Will we have to wait for the next Supreme Court decision before we expand the provision to include all employees?
Bearing in mind that there were no objections to the bill, I just mention that one of the submitters suggested that the bill should go further and ensure that all employers and employees have the flexibility to transfer the observance of, and entitlements that arise from, a public holiday from a day listed in the Act, for reasons of cultural or personal significance, or for reason of convenience. I think prior speakers have already raised that issue. If employers and employees can agree that part of a day is a public holiday, why cannot they agree that a whole day can be deemed a public holiday, and make their choice?
National will support the bill in the Committee stage. I know there are other important matters that members of the House want to attend to, rather than debating this technical amendment to the Holidays Act 2003. That we are debating it now is due to 4 years of idleness on the part of the Government, 4 years of ignoring the suggestion of the 2004 working group report, which specifically mentioned the issue of shift patterns straddling public holidays. That was 4 years ago. Nothing has been done since then.
Dr WAYNE MAPP (National—North Shore) Link to this
I must confess that I was waiting for the Minister in the chair, the Hon Trevor Mallard, to answer—
The previous speaker, Kate Wilkinson, did raise substantive questions, and therefore I will ask the Minister to comment—the questions were quite legitimate. Those questions related to why the working party report was not properly implemented and why we are now dealing with quite a narrow approach relating only to shift work. By making those sorts of narrow technical amendments—and no one is in dispute about them—we certainly fix a particular problem. No one is doubting that. This particular problem relating to shift work has been fixed. Everyone has agreed on that, and that comes directly from the Supreme Court decision, which is, as the Minister noted earlier, only about a year old.
However, that is not really the question my colleague asked. She asked about the other issues. What mechanisms does the Government have in place to fix the other issues that will arise, or is the pattern going to be that we will have these little amendment bills to fix up each individual problem as it arises? There has been a consistent call, as the Minister knows, to have a more comprehensive review of the Holidays Act so that the range of problems that have been identified on a number of occasions—I have been on the Transport and Industrial Relations Committee in the past—will be fixed. Obviously, in the nature of that discussion there would be a bit of to-ing and fro-ing between employer and employee. We understand that, and, obviously, we would not want to return to ordinary daily pay, as was proposed by some people. That would be far too restrictive, but, conversely—
—National does not propose that approach—we say that relevant daily pay has its own set of problems.
One would think this would be an important opportunity to establish a working party to resolve those kinds of issues, and others, so that we get a more comprehensive approach to the problem rather than this particular approach. The Minister owes it to the Committee to answer the questions raised by Kate Wilkinson. I do not think I need to take up any more time on that point, but I do ask the Minister to comment.
Hon TREVOR MALLARD (Minister of Labour) Link to this
I thank the member, and make it clear to Dr Mapp that all I was doing was waiting to see whether there was a more substantive list of issues for me to address, because the issues raised should not take too long to deal with.
The member Kate Wilkinson was right when she indicated that the issue was raised in 2004, but if she had continued to read the report, she would have seen that when the issue was raised in 2004 in the Heinz-Wattie case, it was not regarded as a problem. The legal understanding at the time was that the employer and employees could make an agreement around that particular shift work issue, and, in fact, all of us, and the people who have been involved in this area for quite a long time, thought that was the situation. I am sure that Kate Wilkinson, as someone who is versed in industrial law, probably thought that was the case at the time. Unfortunately, in November last year, in the Air Line Pilots’ Association and Air New Zealand case, the Supreme Court gave a ruling that was not asked for by anybody, and it did upset people’s understanding of the law in that particular area.
There was a more general question about the calculation of holiday pay, and it is fair to say that up until a year or 18 months ago, making holiday pay calculations was something that businesses, especially small and medium sized businesses, had some problems with. As a result of that, my very good predecessor, Ruth Dyson, did some work on the issue, and it has resulted in a very good holiday pay calculator now sitting on the Department of Labour website. That calculator is extensively used, and it has been praised by the Small Business Advisory Group as well as by a number of individual small employers. The ability to work out those calculations is now much easier than it had been. It is a complex area, but there is a good computer programme, which is easy to feed data into, and which takes employers and employees through the process step by step. So that issue has not been raised with me over the last 6 months or so as being a practical problem for employers.
Then, I think, we got to a broader issue, which is that if employees are allowed to transfer a couple of hours of a public holiday, why cannot they transfer it all? I am sorely tempted, Madam Assistant Chairperson—but I am sure you will not let me—to broaden the debate quite extensively—
Hon TREVOR MALLARD Link to this
—on to the general question of transfer. I will not do that, but what I will do, in response to the point made by Kate Wilkinson, is to say there is a fundamental difference of opinion between the Labour Party and the National Party on this particular range of areas. The Labour Party is of the view that holidays are not for sale, and that there should be a balance in the relationship between employers and employees. Especially for people who are in marginal employment situations—people who do not have a lot of power in the workplace—our view is that having employment rights set out in statutes and codes is the proper way of achieving that balance.
That is why we are not prepared to entertain that member’s suggestion that people should be able to give away their Christmas Day, give away their Good Friday, or, as that member suggested earlier—
Hon TREVOR MALLARD Link to this
I think it was fair for the member to raise that issue. I did not take a point of order about that. The issue might have been marginal to this bill, but it is important. The reason we disagree with National is the same reason that we disagree with the proposal of the National Party to cut back the entitlement to holidays—to take it back to 3 weeks. We know what would happen. We know that employers would put pressure on employees—
I raise a point of order, Madam Chairperson. I think the Minister is straying from the topic at hand, quite considerably. If he wants to give an electioneering speech on workplace practice—
The CHAIRPERSON (Hon Marian Hobbs) Link to this
The point is taken. Do not add to it; do not exacerbate the situation, please. Has the Minister finished speaking?
The CHAIRPERSON (Hon Marian Hobbs) Link to this
What a shame! Would the Minister resume the call and please remain close to the subject of the debate.
Hon TREVOR MALLARD Link to this
Sure. The debate is, as defined by Kate Wilkinson, about whether we should be allowed to transfer holidays to other days. Labour says in a very specific instance—in this case, where there is a straddling of the holiday by shift work—then, yes, that is acceptable. But generally we do not believe that employees should be made to give away their holidays, which is the National Party’s policy.
The question was put that the following amendment in the name of the Hon Trevor Mallard to clause 8 be agreed to: