Hon TREVOR MALLARD (Minister of Labour) Link to this
I move, That the Holidays (Transfer of Public Holidays) Amendment Bill be now read a third time. I congratulate you, Mr Assistant Speaker, on your productivity. You have been coming in and out of the Chamber in various roles, such as Assistant Speaker and Chairperson, and we have made amazing progress while you have been away.
The ASSISTANT SPEAKERHon TREVOR MALLARD Link to this
Oh, you are going again! I did not know I had that effect on you, Mr Assistant Speaker.
This is a simple wee bill. It fixes up a decision that the Supreme Court made—a decision that it had not been invited to make by any of the parties, and a decision that really made a nonsense out of any practical application of the law. I am a supporter of the Supreme Court, but in this particular case I think it is fair to say that it made a mess of things.
This Parliament has unanimously agreed, with the support of the Council of Trade Unions and Business New Zealand, to remedy the mess the court has made. We have had a little bit of fun in the Committee stage, because an invitation was made by the National Party to have a broader discussion about the transferability of public holidays, and, of course, that raised the question of the sale of holidays generally. It has been made very clear that there are some issues around holidays, and I am absolutely determined to have a more general piece of amending legislation in the next Parliament. It will be something that is wider and something that I hope will not be unanimous, because I know that if I do something substantive, the National Party will not agree with it.
We had a bit of a discussion around whether workers should be forced to give up their fourth week’s holiday, as the National Party has proposed. It is a debate that I am sure we will have quite a lot of over the next 6½ weeks. I am sure that every time it is brought up we will get a few more votes, because no one out there who is reasonable would think that the public holiday provisions and the paid holiday provisions in New Zealand are too generous. It is at the lower end of the OECD scale, and lower than most other countries apart from the US. Part of the reason we are relatively lowly paid compared with the United Kingdom, Australia, and some other, like countries is that our holiday arrangements are not as generous as those of some other countries.
As I say, there was remarkable unanimity around passing this legislation quickly, but what the bill did was to focus on some very big issues. I will be particularly interested in the response of my old friend and colleague Dr Sharples in this area, because this is one of the defining issues. Frankly, if one is looking for an ethnic group that gains the most out of having proper holiday pay arrangements, one will find that it is Māori, because they are most likely to be amongst the disadvantaged group. I would be interested in the Māori Party’s reaction to the National Party’s suggestion that the number of public holidays should be reduced. Thank you very much.
KATE WILKINSON (National) Link to this
As I stated earlier, National is supporting the third reading of the Holidays (Transfer of Public Holidays) Amendment Bill. As the Minister of Labour has correctly stated, it is really a technical amendment to the Holidays Act 2003.
The Minister was a wee bit misleading in his comments about forcing people to transfer holidays or employers being able to take holidays away. I do not think that the National Party or anybody else wants to take away people’s holidays. The overall purpose of the Holidays Act, which we applaud, is “to promote balance between work and other aspects of employees’ lives …”. But the National Party trusts New Zealanders to sometimes make the right decisions for themselves.
This bill is very narrow. It covers just the situation where a shift straddles a public holiday. Its drafting is a result of the Supreme Court decision in the New Zealand Airline Pilots’ Association Industrial Union of Workers Inc. v Air New Zealand Ltd case. If we look back in history, we see that the way in which some of these issues evolve is really interesting. The justices in that Supreme Court case stated: “Parliament can hardly have intended to create this potential for confusion and disputes.” I think that is quite a strong statement from the justices. It is interesting to note that way back in 2003, before that decision, the Labour Government boasted that the holidays legislation would provide “certainty, clarity, and consistency”. It was very, very confident that its holidays legislation would provide certainty, clarity, and consistency, yet here we are, several years and three amendments later, trying to fix up and clarify legislation that did not provide certainty, clarity, or consistency.
In 2003, the then Minister of Labour actually admitted that “the current Holidays Act is an extremely difficult piece of legislation to apply and to interpret.” She stated: “Areas previously left to the courts to interpret and develop have been dealt with in the bill … That will mean that users will not have to refer to the numerous judicial decisions that supplement the current legislation.” That was back in 2003, and here we are in 2008, as a result of a judicial decision, trying to provide some clarity in legislation that the Minister at the time boasted would cure all ills.
Actually, this is the third amendment to the holidays legislation since the original Act came into force in April 2004. Less than 6 months after that there was a further amendment because the Labour Government had got it wrong; Peter Brown from New Zealand First mentioned that this morning. In fact, in 2004 he stated that his party “got it wrong by quite some.” So here we are in 2008, on the last day of Parliament and in urgency, trying to fix up what the Government got wrong. Back then, in 2004, New Zealand First actually went further and said that “The holidays legislation in this country is in a mess. It is absolutely in a mess. Employers do not understand it; employees do not understand it.” Well, it is still a mess. We fixed up a tiny little area of it that they got wrong “by quite some”—an area that needed clarification—and that, unfortunately, went to the highest court in the land. But at least it is fixed, hopefully, with this small amendment.
When we look back in history at the transferring of public holidays—which allows an employee to observe a public holiday on another day—we see that it is not a new concept. Apparently, it was first used legislatively in the Public Holidays Act 1910, and, even before that, in 1908 the Factories Act provided that persons employed when Christmas Day, for example, fell on a Sunday could observe the holiday on the following Monday. Later, in 1955, the Public Holidays Act had the effect of transferring public holidays to other days when they fell on Saturdays or Sundays. So as this Supreme Court decision stated, since at least 1910 employment legislation has been familiar with the concept of public holidays being observed on days other than the calendar days on which the holiday actually falls.
The predecessor to this Act, the Holidays Act 1981, also provided that public holidays could be varied by agreement as long as they were not reduced in number. Indeed, the original explanatory note of the holidays legislation in 2003 actually contemplated that and said that the bill gives employers and employees the flexibility to agree to observe alternative days as public holidays. That was back in 2002. Something happened in between and the bill that came out of the select committee morphed into the Act we now have, which has been fixed up three times because of the lack of clarity.
Back in May last year there was an article in Employment Today by an employment specialist, which quite aptly stated: “Rather than simplify the law relating to holidays, the Holidays Act 2003 has resulted in an increase in litigation as employers, employees and unions all endeavour to come to terms with interpretation of differing sections of the Act …”. How right that is. Now this narrow amendment is trying, as a result of a Supreme Court decision, to add some clarity to a very, very narrow interpretation of the definition of “public holiday”.
National is supporting this bill. It only goes so far. It does not deal with the possibility of transferring an entire public holiday to the next day or another day; it only deals with the matter of where a shift straddles a public holiday. Also, it applies only to shift workers and not to other employees. There is scope for a good look at the holidays legislation. The legislation has to be certain. Employees have to understand it and employers have to understand it. A review of the holidays legislation does not mean taking away holiday rights; it means providing legislation that is clear and certain and does not add to confusion. National supports this bill, under urgency, at its third reading.