Holidays (Transfer of Public Holidays) Amendment Bill

Hon TREVOR MALLARD (Minister of Labour) Link to this

I move, That the Holidays (Transfer of Public Holidays) Amendment Bill be now read a second time. This is a simple bill. I think it comes from a mistake on the part of a court, and it was decided that it would be easier to sort it out in this way rather than in any other. The mistake led to something that none of the parties involved in the case wanted as a result. We have an increasing degree of unanimity between the Council of Trade Unions and Business New Zealand around the stability of employment law in New Zealand, and this bill puts the law back to what everyone thought it was. Thank you.

KATE WILKINSON (National) Link to this

National is, of course, supporting the Holidays (Transfer of Public Holidays) Amendment Bill through both its second and third readings. This must be one of the few bills relating to employment that has gone to the Transport and Industrial Relations Committee unopposed. It passed through the select committee without any amendment, it continues to be unopposed, and National will, of course, continue to support it. As the Minister has stated, all that this bill really does is to fix up a muck-up of the Government, which got the law wrong in the first place. It drafted legislation that should have been certain, that should have been straightforward, and that should have been able to be understood, but that failed.

This issue went to the highest court in our land, the Supreme Court, which had to try to work out what the definition of “public holiday” in the Holidays Act actually means. It took a judgment of approximately 50 pages to then try to work out what this House intended with regard to its definition of “public holiday” back in 2002. That Supreme Court decision, involving the New Zealand Air Line Pilots’ Association and Air New Zealand, basically held that under the current legislation an employer and an employee could not agree to transfer a public holiday from a day listed in the Act to another day. All that this bill seeks to do, in reflecting that Supreme Court decision, is to provide that the definition of “public holiday” can include, by agreement, a period of 24 hours being treated as a public holiday, but to exclude agreement to part of a day being treated as not being part of a public holiday.

Usefully, we are given an example of an employee who works from 10 p.m. on 24 April to 6 a.m. on 25 April—Anzac Day—and from 10 p.m. on Anzac Day to 6 a.m. on 26 April. Under this bill, the employee and the employer can agree to treat the time from 10 p.m. to midnight on Anzac Day as a public holiday. In other words, the bill allows the parties to treat one entire shift that is split over 2 days, where one day is not a public holiday, as if that shift were entirely worked on a public holiday.

That is all that this bill does; it is a very narrow bill. Some submitters have suggested widening its scope, but in the end the bill has come back to the House unamended. As one of the submitters suggested, there are also other defects in the Holidays Act. This year those living in Southland actually missed out on a holiday completely, because of the definition of “public holiday”. Also, a public holiday in one of the other regions still has not been gazetted, even though it is observed as if it were a public holiday. So this bill is a very, very narrow amendment, and it could have gone a lot further than it has. Certainly some defects still remain in the principal Act. Let us hope that at some stage that Act will be amended once and for all, so that employees and employers can have certainty as to what it actually means.

It is really like a situation of déjà vu. Five years ago, when the original bill was first looked at, the select committee report stated that “By majority we recommend substantial redrafting of the bill to make it explicit in what circumstances the public holiday entitlements would arise, and to clarify the intent of the bill.” Well, it would appear that the select committee report went unheeded, because that did not happen and after further amendments we are back here 5 years later, trying to clarify the intent of the Act, and we now have yet another amendment to it. It is interesting to look back to 2002, which was about the time of the original holidays legislation. I understand that at that time about 75 percent of all inquiries to the labour inspectors related to holidays. It was quite an important issue. One would have thought that this Government would address some of those issues, but, no, we have a narrow, narrow bill.

We had about 10 submitters on the bill. None of them opposed it. Again, I say it is interesting in relation to employment law that there was no opposition to the bill. It has passed through the process so far without any amendments, and even at the Committee stage there are no Supplementary Order Papers to be considered. I think that is probably a remarkable feat in this House in terms of employment law.

Actually, the holidays legislation is still in a mess. Employers still do not understand it even with this small amendment, and employees still do not understand it. But rather than fixing it once and for all, what does this Government do? All it does is to introduce this narrow, narrow amendment to fix a narrow, narrow area as a result of one Supreme Court decision. When the next Supreme Court decision is made on the next narrow aspect that no one understands, then we will be back once again in this House, under this Government, to fix the next problem.

Let us hope that does not happen and that the next review of the holidays legislation is done properly, so it deals with the whole Act and not just with one small part of it, and it deals with it in discussion with both employer groups and employee groups, so that we have comprehensive legislation that both employers and employees can at least understand. Employers and employees alike need and deserve legislation that provides certainty. They should be able to know what the legislation says and what it means; they should not have to go to the Supreme Court to ask the justices what it means. They should not have to resort to the legal process all the way up to the Supreme Court for an interpretation of what Parliament intended, and of what the legislation actually says and means.

The bill goes only so far. As one submitter stated, it does not deal with the Supreme Court’s prohibition on transferring an entire public holiday to some other day, but at least it will allow for greater flexibility by agreement where shift work overlaps on 2 calendar days. National supports this bill. We supported it through its first reading, we supported it through the select committee process, we are supporting it now through the second reading, and later we will support it through the Committee stage and the third reading.

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

I do not intend to take a long call; this is a very straightforward bill. I think it is fair to say that this matter was overlooked when the Holidays Act went through the House some 3 or 4 years ago. I agree with the latter part of Kate Wilkinson’s speech, but I think it was most unkind of her to say that this was a Government stuff-up. New Zealand First was on the Opposition benches at that time and Kate Wilkinson was not a member. Wayne Mapp will agree that this was a matter of significant debate both at the Transport and Industrial Relations Committee and in this House.

New Zealand First did not agree with everything in the Holidays Bill when we went through it—we had concerns. But we are big enough, ugly enough, and strong enough to say that the legislation has gone through this House and that people in this country are entitled to have proper protective holiday legislation. At the time, we were supportive of most of the bill but not all of it. I think in our last vote we voted against it, but having said that, we were, in large measure, supportive of it. The provisions in this legislation needed to be addressed; we all know that. We are all going to agree with the bill. Let us get on with it and do it. New Zealand First supports this bill.

METIRIA TUREI (Green) Link to this

I will make just a short comment on this Holidays (Transfer of Public Holidays) Amendment Bill on behalf of my colleague Sue Bradford, who is not here this morning, and this will be our only comment on the bill this morning. We support the bill. We raised concerns at the first reading that this kind of piecemeal change to the Holidays Act is not good enough, and we say that a proper look at it needs to be taken. Fixing up little bits as they pop up is useful to some extent, but it does not actually do the job of making sure that workers’ rights are fully considered and protected.

In respect of holidays we are always particularly concerned about the most vulnerable workers. People have a right to participate in their community activities and their families, and public holidays are often the one opportunity for them to be able to do that. This is especially so for those vulnerable workers who work shift work or split shifts. They do not always work on Mondays and, therefore, are not always entitled to holidays on Mondays.

People work to live, they do not live to work, and that needs to be better respected. We have very few public holidays in this country compared with other countries, and we really need to beef up the commitment to enable people in our communities to contribute to their community and family life, rather than being just economic units producing cash for large multinational corporations—and for some local, domestic ones, as well.

We are very pleased to see the bill come to fruition. We are looking forward to its speedy progress, but it is not enough, just of itself; more needs to be done. Thank you.

TE URUROA FLAVELL (Māori Party—Waiariki) Link to this

Mōrena, tātou e tēnei ata. At this point in the urgency programme there is something very attractive about the concept of holidays, although sleep is an even more attractive option at this point of the programme—and going home. We are pleased to support this Holidays (Transfer of Public Holidays) Bill, which amends the Holidays Act 2003 to ensure that when a work shift spans two days and at least one of those days is a public holiday, an employer and an employee can enter into an agreement to transfer the public holiday to cover one whole shift. It all sounds very complicated, I suppose, but in reality what the bill does is reinstate previous practices that benefited both the employer and the employee.

We are pleased that the bill is supported by both employers and employees—a win-win situation all around. In fact, this proposal has been so well accepted, I understand, that the employees of Heinz-Wattie have actually made a joint application for the change with the company. As I understand it, the bill provides specifically for agreement about such a transfer to be reached in certain circumstances. These circumstances are when, say, the shift spanning two days starts or finishes on a public holiday.

The first point to note is that the legislation is intended to specifically address the consequences of the Supreme Court decision in the airline pilots case. The effect of the Supreme Court decision was to overturn the Employment Court decision in the Heinz-Wattie case. The Heinz-Wattie case that went to the Employment Court dealt with the issue of shift workers whose shifts cross midnight. The Employment Court had found that workers and employers could agree to observe a public holiday based on the shift patterns, rather than on the period from midnight to midnight. The Employment Court’s decision was generally supported both by unions and employers, whereas the Supreme Court found that a public holiday can be only one of the days listed in section 44 of the Holidays Act. This is where it becomes rather complicated.

The general policy statement in the bill specifically states: “This legislation is needed following the recent Supreme Court decision New Zealand Airline Pilots’ Association Industrial Union of Workers Incorporated v Air New Zealand Limited”. However, it deals with only the Heinz-Wattie case issue of shift workers. It does not address the issue of, for example, workers who want to observe days of cultural significance other than those listed in the Act. Basically, the bill proposes to repeal section 44(2) of the Holidays Act altogether and effectively replace it with new section 44A, which deals only with the Heinz-Wattie scenario of shift workers. In other words, the bill appears to narrow the circumstances in which a public holiday can be transferred to only the situation where shift workers’ shifts cross midnight.

However, the general principle of workers having the ability to observe days of cultural significance to them rather than being limited to those days listed in the Act is a good one, we believe, provided it is not open to abuse. The best way of doing that, the Māori Party thinks, would be to provide that such arrangements require an agreement between the employer and the employee and to provide that they can be initiated by employees only.

The scenario might be, for example, that a Muslim worker wants to observe the beginning of Ramadan, which is a day of cultural significance to him or her, rather than Christmas Day. Or a worker may want to celebrate the birthday of Tahupōtiki Wīremu Rātana, or perhaps the monthly hui on the 18th of the month, as practised at Parihaka—as my colleague Mahara Okeroa would know—or the on 12th of the month, as practised by the Ringatū people. That worker would be able to request that he or she works on Christmas Day and that the nominated day of cultural significance would become his or her public holiday. We think that is a pretty good idea. The employer would not be able to withhold agreement unreasonably. The worker would not be entitled to time and a half for working on Christmas Day.

The Māori Party will be supporting this bill. We have spoken to a number of different union organisations and we know that their members are very supportive of this bill. We know that Business New Zealand and the Council of Trade Unions have been consulted and that they both support the amendment.

Many of these same members work in food factories that run 24-hour production lines and they work 11 p.m. to 7 a.m. night shifts, so they are directly affected by this bill. What appears to have happened as a result of the Supreme Court ruling is that at midnight the pay rate changes, which causes hassles for payroll and confusion around wages. For 24-hour production companies it has also meant that two shifts of workers are entitled to a day off in lieu, instead of one shift. Although this may be good for workers, for some companies it means closing down from midnight to midnight to avoid having to compensate all of the workers of two different shifts by giving them a day in lieu. We know this is the case for both Heinz-Wattie in Hastings and Unilever in Petone. Therefore, in practice, it turns out to be not so good for workers, after all.

The Māori Party is happy to support this bill, but we consider that the costs of time delay and uncertainty need to be addressed immediately. We are pleased to lend our votes to give effect to this.

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

National is supporting the Holidays (Transfer of Public Holidays) Amendment Bill. It is an irony that on the last day of Parliament, in theory, we are debating a bill that everyone has agreed on, and yet this is the third amendment of the Holidays Act since it was enacted in 2003. We on this side of the House have been saying to the Government for some time now that this legislation should be properly reviewed and that there would obviously have to be a collaborative arrangement involving both employers and unions to get legislation that would be actually workable.

What this amendment and previous amendments have shown, and, indeed, what previous speeches have shown, is that the Act developed by the Labour Government has not actually worked in practice. The irony is that the Labour Government was intending to simplify the Holidays Act. All I can say is that I have never seen so many amendments to what was supposed to be simplified legislation in employment law. This shows a Government that has, frankly, created a mess, and we are having to fix that mess, yet again—a third time in just 4 years. The legislation is simply deficient. Interestingly enough, Mr Peter Brown noted that point as well in his speech.

The irony of it also is that we have established, at great expense, a Supreme Court that ended up saying employers and employees could not even agree to have a common-sense arrangement. We have spent millions and millions of dollars establishing that court, and it could not, using its judicial power, come up with a common-sense solution. It took very much a black-letter law approach to the legislation, and we are being required to fix it here. I would have hoped that a court of that nature would be able to allow a bit more flexibility; that is, after all, one of the values of a court like the Supreme Court. No, the legislation has come back here.

It is National’s intent to fix these problems in the Holidays Act once and for all. We are committed, should we be in Government, to having a proper review. We will take into account the views both of employers and of unions, because the legislation has to work for everyone concerned. People—both employers and employees—need to have certainty and the legislation has to be reasonably simple in application. The whole problem of this legislation, which has been pointed out time and time again to the Government, is that it is simply too complicated, and Government has been unwilling to deal with the issues. Instead, we get these piecemeal, ad hoc amendments to cover up the mistakes.

I know that Mr Mallard said there was a certain level of consensus around employment law; actually, in some respects he is right. That certainly does not mean that the Government got much of it right. In fact, in the Holidays Act it has got much of it wrong. The Labour Government does not understand—indeed, it has never understood—the need for flexibility. That is why we would say—[Interruption]